Articles Posted in Workers Compensation

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Charlotte E. Glinka 508-738-2272

Charlotte E. Glinka

Earlier this year, the Supreme Judicial Court (SJC), the state’s highest court, issued a decision that will have far-reaching effects on settlements in cases involving injured workers in Massachusetts.

In the companion cases of DiCarlo v. Suffolk Construction Co., Inc. and Martin v. Angelini Plastering, Inc., the SJC, in a unanimous decision, ruled that a workers’ compensation insurer may not recover its lien from the portion of a third-party settlement that is allocated to the injured worker’s pain and suffering damages.

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Lauren Van Idersstine 508-738-2272

Lauren Van Inderstine

In the event you find yourself in this situation, you are not without recourse.

An agreement between the parties is binding. Section 19 of the Workers’ Compensation Statute provides that any payment of compensation, written and approved by the Department of Industrial Accidents, shall for all purposes be enforceable in the same manner as an order under Section 12.

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A 50 year old woman who had previously applied for SSDI benefits and was denied at Hearing was successful in her re-application and awarded benefits alleging disability as of August 23, 2014 with a date last insured of September 30, 2014.  Arguing that the Claimant’s age, combined with her several severe impairments rendered her unable to perform even sedentary work, and referencing the Court to various Listings and to the Medical/Vocational Grid Rules, the Court agreed and awarded the Claimant benefits.  Indeed, benefits were awarded retroactively to the alleged onset date.  In her second application, the fact that she was now 50 years of age, and considered “closely approaching advanced age” in addition to securing  medical records which supported her claim lead to this successful outcome.


Judith Gray


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Medical Records and Your Workers’ Compensation Casesteve_z

Insufficient medical documentation is, by far, the most common reason that workers’ compensation claims are denied or delayed. This is true at all stages of a workers’ comp. case.

Steve Zoni 508-822-2000

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If you are injured at your job and unable to continue working, your employer’s workers’ compensation insurance carrier can pay you weekly benefit checks and pay for your medical treatment for 180 day — without actually accepting liability for your injury.  This means that, at any point during the 180 days, the insurer can stop paying you weekly checks and medical treatment if they mail you a Form 106, also known as an Insurer’s Notification of Termination or Modification of Weekly Compensation During Payment-Without-Prejudice Period.  This means that the insurer can stop your payments with only seven days notice to you.

The insurer can stop payment for almost any reason.  They can claim that you are capable of doing other work, or that an investigation revealed that you weren’t actually injured at work. However, if your insurer has been paying your benefits for more than 180 days, then they have accepted liability and responsibility for your work injury and cannot stop paying you weekly checks unless they file a Form 108, an Insurer’s Complaint for Modification, Discontinuance, or Recoupment of Compensation.  This requires the insurer to file the claim and go before the judge to request that they be allowed to stop paying your weekly benefits (only a judge can allow this to occur).  The exception to accepting liability if payments are made for more than 180 days is if the insurer sends you a Form 105: Agreement to Extend 180 Day Payment-Without-Prejudice Period .  If you sign this form and return it to your insurer, they can file it with the Department of Industrial Accidents, which allows them to stop paying you your weekly checks with 7 days notice (for up to 360 days).

If your insurer sends you a Form 105, it is important to talk to a lawyer before signing it. It may not be in your best interest, and may result in your weekly checks stopping before you are able to return to work.

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After an Employee is injured on the job, their day to day lives are often thrown into a tailspin. As if being injured and unable to work isn’t stressful enough, most employees are left with the burden of figuring out their finances, attending doctor’s appointments, and being buried in paperwork. Often times, employees rely on and trust their adjusters to help them get through this tough period; unfortunately, adjusters and insurance companies are usually more interested in protecting their own interests. During this difficult time, most employees will receive a Form 105, “Agreement to Extend Payment Without Prejudice Period” in the mail. This form will also be accompanied with a letter that indicates that the employee has been “approved” or “could be paid for up to a year” if they sign the form. This letter is meant to mislead the employee and make them feel as if the form is in the employee’s best interest. It’s not.

Signing the Agreement to Extend 180 Day Payment Without Prejudice Period form can have an extremely negative impact on an employee’s claim. At first glance, the form seems harmless and possibly beneficial to the employee; however, by signing this form, the employee is giving up his or her legal rights — and it may allow the insurer to legally terminate benefits. It may also put the employee in a position where they could go months without benefits while waiting for a court date.

In every case, during the first 180 days from the first date of disability, the insurer is allowed to stop payments to the employee without obtaining approval of the Department of Industrial Accidents or the consent of the employee. The insurer is required to give the employee seven days written notice of the termination benefits.

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Have you been injured at work? Do you believe that your Employer may be at fault for your work injury? Pursuant to M.G.L. c. 152, § 28, if an employee is injured by reason of the serious and willful misconduct of an employer, or of any person regularly entrusted with and exercising the powers of superintendence the amounts of compensation provided shall be doubled. You may be entitled to double your Workers’ Compensation benefits if your employer or supervisor was at fault for your injury.

In Massachusetts, serious and willful misconduct involves conduct of a quasi criminal nature, the intentional doing of something either with the knowledge that it is likely to result in serious injury or with a wanton and reckless disregard of its probable consequences¹” An employer must intentionally do the act, but he also must have reason to know that his actions create an unreasonable risk of bodily harm.

Section 28 generally arises when an Employer or supervisor fails to comply with State mandated, or Federally mandated safety regulations, or when the Employer is aware of a serious risk of injury on the job and fails to take the appropriate measures to correct it, and/or warn of it. For example, in one case, the Massachusetts court found serious and willful misconduct consisted of a crew foreman ordering the employees into a trench without proper shoring precautions, contrary to the instructions of the general foreman, despite the observable conditions at the job site, the readily available shoring material, and the employee’s warnings and requests for shoring². When an Employer knows of potential dangers on a job site, and fails to warn of them or correct them, then the Employer can be held responsible for an Employee’s injury as a result of those conditions under Section 28.

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“The Bacon Davis Act” sets prevailing wages for federal contractor jobs, and the Massachusetts Prevailing Wage Law (G.L. c. 149, §§ 26 – 27,) sets wages for certain jobs involving the state or local governments. Under this law, payments by employers to health and welfare plans, pension plans and supplemental unemployment benefit plans under collective bargaining agreements or understandings between organized labor and employers are included in the wage rates.

Prevailing wage applies equally to unionized and non-unionized workers. All employees who perform work on a public works project must be paid the rate per hour according to the schedule issued for the particular project.

This is significant for workers injured on prevailing wage job-site.  Normally, an injured workers’ average weekly wage is determined by the prior 52 weeks worked; however, if an employee is injured on a prevailing wage job, the prior 52 weeks worked is not an accurate representation of the injured employee’s potential earning. For Union employee’s this is important due to the fact that their benefits package is not normally a part of the calculations of their average weekly wage; except when working on a prevailing wage job-site.

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Under the Massachusetts Workers’ Compensation Act, an injured employee must file a

claim “within four years from the date the employee first became aware of the causal relationship

between his disability and his employment.” M.G.L. c. 152 § 41. This statute of limitations provision

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Under Massachusetts General Laws 152 which is the worker’s compensation statute, 1[4] “employees are described as every person in the service of another under any contract or hire, expressed, or implied, oral or written excepting…”  As to the exceptions the key exception is that there must be an employer, employee relationship and there must be a contract for hire. In order for there to be a valid contract for hire there must be an offer of employment, acceptance of the offer and consideration for the services rendered. Arguably, in a volunteer situation there is no offer of employment no acceptance, and no consideration, i.e., no salary. So under that analysis the volunteer would not be eligible to collect worker’s compensation.

However, there are exceptions to that rule. A student offered a job as a volunteer may be an exception. An employer has the benefit of that work. The volunteer has the benefit of obtaining experience and knowledge in that field. Currently in Massachusetts, there is a clear exception for high school students in this volunteer role. There is not a clear written exception for college or law school students.

On the backside of that argument is the fact that if the employee is not protected by worker’s compensation the employer is not protected by the exclusivity of worker’s compensation.  As a result, a volunteer/student could sue the employer under a direct negligence theory.

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