Your Right to Compensation

If you have suffered an injury at work, or you’ve developed a disabling condition because of your job, you may have questions about the Massachusetts workers’ compensation system. The information below can help explain the basic legal rights of someone who’s suffered a work-related injury or illness in Massachusetts.

The workplace injury attorneys at Kantrovitz & Associates, P.C. exclusively represent individuals injured in the course of their employment. Our Massachusetts workplace accident lawyers believe in a hands-on approach, providing individual attention to every client we represent.

Based in Boston, Massachusetts, the workplace injury lawyers at Kantrovitz & Associates, P.C. have helped injured workers across Massachusetts, including but not limited to Boston, Essex, Middlesex, Norfolk, Suffolk and Plymouth. We also help Rhode Island and New Hampshire residents who were hurt on the job in Massachusetts.

For a free, no obligation evaluation of your construction accident workplace injury, please contact us online. You may also call us toll free at 800-367-0871.

1. Who Is Covered By Massachusetts Workers’ Compensation?

With few exceptions, Massachusetts requires that all private employers provide workers’ compensation insurance for all employees, with coverage beginning from a worker’s first day on the job. Covered employees generally include anyone who earns a salary or wages from their employer, whether employed full-time or part-time. This includes domestic servants, such as housekeepers or nannies, who work for their employer at least sixteen hours per week. It also includes undocumented workers.

A business owner is eligible for workers’ compensation benefits, if the owner exercises his or her option to be considered an employee for workers’ compensation purposes.

In addition, the great majority of government employees in Massachusetts are entitled to workers’ compensation benefits upon suffering a job-related injury or disabling condition. This includes state government workers, and most county and municipal employees.

Typically excluded from a participating employer’s workers’ compensation coverage are independent contractors, who are not considered “employees.” Whether a worker is properly characterized as an employee or an independent contractor can depend on many factors, though. As of 2004, Massachusetts enacted an updated version of its Independent Contractor Law, which sets out the standard for determining whether a person qualifies as an independent contractor. The law presumes that there exists an employer-employee relationship unless someone challenging that status can show three things: (1) the worker is free from the presumed employer’s control and direction in performing the worker’s service, both according to the parties’ contract and in fact; (2) the service provided by the worker must be of a type outside the employer’s usual course of business; and (3) the worker must be customarily engaged in an independent trade, occupation, profession or business of the same type as that involved in the service that the worker is performing. Thus someone labeled as an “independent contractor” at work should not assume that he or she can’t get workers’ compensation benefits for an on-the-job injury, without investigating further. Often times an employer attempting to avoid the costs of workers compensation insurance will intentionally misclassify an employee as an independent contractor.

2. I’ve Been Injured At Work. What Are My Rights?

Massachusetts workers’ compensation provides benefits to all injured workers who need medical treatment, and those who become disabled or unable to earn their full wages for five or more calendar days, or who die, because of a work-related injury or disabling condition. Benefits are available to workers who suffer physical injury, and also those who suffer from work-related mental or emotional disabilities, and occupational diseases.

Therefore you’re entitled to workers’ compensation benefits for your injury at work if:

• Your injury is a work-related injury or condition;
• Which makes it impossible for you to earn any or all of your wages for at least five full or partial calendar days or more; or
• Requires medical treatment as a result of the work-related accident or condition.

The five full or partial calendar days do not have to be consecutive.

This means that in most cases where you have been injured at work or you get sick because of your work, it’s very likely you’re eligible to receive workers’ compensation benefits.

What types of benefits might you be eligible to receive? That depends on your situation. There are a wide variety of benefits available under the Massachusetts workers’ compensation system. The primary benefits are weekly compensation for lost income during the period an injured employee cannot work, and coverage of medical expenses associated with the injured worker’s reasonable and necessary medical care.

In some cases, an injured employee may even have rights and remedies above and beyond what’s available through the Massachusetts workers’ compensation system.

The specific types of benefits available to injured Massachusetts employees, depending on the type and severity of the work-related injury or illness, include:

• Temporary Total Disability Benefits. Temporary Total Disability Benefits are calculated at 60% of the gross average weekly wage you earned before your injury. When calculating gross average weekly wage, all earnings of the injured worker are taken into consideration, including but not limited to wages from overtime as well as bonuses. It should also be noted that if an employee works more than one job, the wages from all jobs must be included in the average weekly wage calculation.
• Partial Disability Benefits. You may be eligible to receive a weekly partial disability benefit if your injury at work results in a partial disability. This would be measured at 60% of the difference between the wages that you earned before and after your accident.
• Permanent and Total Incapacity Benefits. If your work-related injury or illness results in a total and permanent disability, you become eligible to receive 66.67% of your gross average weekly wage, with a potential yearly cost of living increase.
• Medical Benefits. If you require medical treatment because of your injury at work, you can receive treatment from the doctor of your choice. Sometimes, you may have to have an initial consultation with a physician specified by your employer, but afterward you can be treated by a doctor that you choose. You also can be reimbursed for your expenses related to medical treatment, including certain travel costs.
• Permanent Loss of Function and Disfigurement Benefits. If your work injury causes a permanent loss of function, or certain types of scars or bodily disfigurement, you could be eligible for a monetary benefit for those losses.
• Subsequent Injury Benefits. If you receive workers’ compensation, then return to work for two months or more and are subsequently re‐injured, you can receive compensation at the rate in effect at the time of the new injury (unless the old injury was paid in a lump sum settlement, which is a one-time payment in place of receiving ongoing benefits).
• Death Benefits for Survivors and Dependents. A surviving spouse can receive up to 250 weeks of a deceased employees’ workers’ compensation benefits, plus annual cost of living increases. Those benefits can extend beyond that time if the surviving spouse has not remarried or is not yet self-supporting when the 250 weeks expire. The employer’s workers’ compensation insurer also must pay up to $4,000 for burial expenses.
• Vocational Training. You might be eligible for Vocational Rehabilitation, meaning job retraining , if your injury at work results in a permanent inability to perform the essential functions of your job. This can include job placement services, and retraining or education for new work, all paid for by your employer’s workers’ compensation insurer.
• Workers’ Compensation Trust Fund. The Massachusetts Workers’ Compensation Act creates a Trust Fund that makes payments to injured workers whose employers fail to obtain workers’ compensation insurance. The Trust Fund steps in to act as the “insurer” in place of the workers’ compensation coverage that an employer failed to provide. The Workers’ Compensation Trust Fund, within the Department of Industrial Accidents, administers benefits paid from the trust fund.

More information about the specific benefits available under the Massachusetts Workers’ compensation system is available below.

3. What if my injury was caused by someone else?

If you’re injured at work by someone other than your employer or one of your co-workers, then you probably have the right to assert a claim against the third party for payment of damages. You can still collect your workers’ compensation disability and medical benefits under your employer’s workers’ compensation insurance, and you also may file a damages lawsuit against the third party.

Suppose you had a traffic accident while driving as part of your job. Because your injury was work-related, you’ll be able to recover workers’ compensation benefits. But if the accident was the fault of another driver (not one of your coworkers), then you also could file a personal injury suit against the other driver. Other examples include a construction site accident where a general contractor or subcontractor was at fault, or a personal injury caused by a defective or dangerous product or piece of machinery that you used or encountered while on the job.

If you have a personal injury claim against a third party for your on-the-job injury, your lawsuit against the negligent party might entitle you to recover damages, including pain and suffering; past, present, and future lost wages; medical bills; and payment for loss of companionship or society of your family.

Any damages that you recover from a third party who caused your injury have to be reimbursed to your employer’s workers’ compensation insurer. But if you recover more damages that the workers’ compensation benefits that you received, you get to keep the rest.

If an employee does have a viable third party negligence action, he or she must take affirmative action within a seven month period of time, or they will lose the right to choose who will represent their legal interests. If the employee waits greater than the seven month deadline, the workers compensation insurance company can elect to represent the injured worker in their third party cause of action.

4. Potential Legal Problems You May Have With Your Case

Click here to read about the potential legal problems you may have with your case

Injured on the Job? Contact Our Workplace Accident Lawyers

For a free case evaluation of your workers’ compensation claim, please contact us online or call us toll free at 800-367-0871 to speak with an experienced workers’ compensation attorney at Kantrovitz & Associates, P.C. We have more than 20 years of experience fighting for the rights of individuals injured in the course of their employment.

Based in Boston, Massachusetts, the workplace injury lawyers at Kantrovitz & Associates, P.C. help injured workers across Massachusetts, including but not limited to Boston, Essex, Middlesex, Norfolk, Suffolk, Plymouth and Merrimack River. We also represent Rhode Island and New Hampshire residents whose injuries occurred in Massachusetts or who were hired in Massachusetts but who were injured out of state.