Articles Tagged with Workers’ Compensation

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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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Steve ZoniNursing has long been considered a stable, well-paying career. Year after year, labor experts, schools, guidance counselors, and others, have steered people into the field and promised continued growth in the number of available jobs and in salaries. However, nurses face the same challenges as employees in any field. One such challenge that seems to be occurring more frequently within the medical field are employers closing down or being bought out by larger medical groups. When it comes to workplace injuries, nurses and others who work in a direct care setting may be especially prone to on-the-job injury, and many such injuries occur over the course of years.

What happens when healthcare workers are injured and their employer closes down or gets bought out?

Under the Massachusetts workers’ compensation laws, which provides injured workers with medical treatment and weekly paychecks, employers are required to provide workers’ compensation insurance coverage. In general, the workers’ compensation insurance that employers pay for cover the employer for injuries that occur during a particular period of time. Even if the employer is no longer in business, whether it closes down, gets bought, or changes its name, the insurance policy continues to stay in effect for whatever period of time it covers.

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Lauren_VanCase law in Massachusetts tells us that an injury may arise in the course and scope of an Employee’ s employment, even though the Employee is not engaged in the actual performance of his duties at the moment of the injury.

The obvious questions is, how?

“‘All that is required is that the Employee’s activity be incidental to and not inconsistent with his employment.’ ”D’Angeli’s Case, 369 Mass. 812, 816 (1976), quoting Bator’s Case, 338 Mass. 104, 106 (1958). Stated otherwise, “[t]he ‘obligations or conditions’ of employment [must] create the ‘zone of special danger’ out of which the injury arose. Id. at 817, citing O’Leary v. Brown-Pacific-Maxon, Inc., 340 U.S. 504, 506-507 (1951).

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By Steve Zoni, Esq.steve_z

10/22/14 – The Boston Globe recently ran a story titled “Mass. Nurses worry about Ebola preparedness” after two healthcare workers in Texas were diagnosed with Ebola that they contracted while caring for a patient who carried the virus. The Globe quoted Donna Kelly-Williams, President of the Massachusetts Nurses Association, as having noted that the only people who have contracted the virus within the United States have been nurses.

In the context of workers’ compensation law, the Globe’s article highlights the fact that healthcare professionals are uniquely exposed to contagious diseases. What happens when the risk becomes reality?

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Lauren_VanWhen determining whether a mechanical device, such as wheelchair, or specially equipped private transportation is compensable, and the responsibility of the Workers’ Compensation Insurance Carrier, the Commonwealth of Massachusetts will evaluate your case based on a three prong approach.

PRONG #1:         Whether the accepted work injury is in any way related to the need for the

mechanical appliance sought. Do you need the wheelchair or specially equipped van as a result of injuries you sustained in a work-related accident?

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steve_z

When an injured workers misses time from work, workers’ compensation laws provide a system of wage replacement. In other words, workers’ compensation insurance companies must pay the injured workers a percentage of his or her former wages. It is often said that workers’ compensation is meant to compensate injured workers for having lost the ability to earn wages.

Generally, a totally disabled worker in Massachusetts is entitled to sixty percent of the former wage, and a person who is partially disabled is entitled to forty-five percent.

Often, issues arise when determining what the employee’s former wage is. The former wage, known as the “average weekly wage,” is generally determined by taking all compensation paid to the employee during his or her last fifty two weeks of work before the injury, divided by fifty two.

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1518320_13264313_1George N Keches                Brian C Dever

A 50 year old carpenter was employed installing sheet rock at a construction site.  Plaintiff was working in a staircase with a co-worker who was passing the sheet rock down to the Plaintiff from the floor above.  The Plaintiff fell off the ladder and onto the mid-floor landing below sustaining head injuries and a fractured wrist.  The precise manner of the fall was unknown.  The co-worker heard the fall, responded and found the ladder upright in the designated location.  The Plaintiff was unconscious lying on the lower mid- floor landing, approximately three feet below the upper landing.

Plaintiff alleged negligence on the part of the General Contractor for failing to conduct a Job Hazard Analysis and by allowing the use of a ladder and not scaffolding while the Plaintiff was installing the sheet rock in the stairwell.  Further Plaintiff alleged that Defendant failed to provide fall protection, as Plaintiff was exposed to a fall of more than six feet based on the open stairwell behind the Plaintiff.

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