Massachusetts Workers' Compensation: Deadlines, Benefits and How to File

Every employer must provide workers' compensation, either by buying insurance, joining a licensed self-insurance group, or getting a self-insurer license from the Department of Industrial Accidents. There is no minimum number of employees. Coverage is elective (optional) for employers of seasonal, casual or part-time domestic workers (part-time means under 16 hours a week), and for corporate officers or directors owning at least 25% of the stock who file a written waiver. Sole proprietors and partners are not covered unless they choose to buy coverage. Certain workers are excluded from the definition of employee, including some commission-only real estate and direct sales salespeople, some leased-taxicab drivers, and people whose work is not in the usual course of the employer's business. An owner who lives in a dwelling with no more than three apartments is not treated as an employer just because he or she hires people for maintenance or repair of that home.

Written notice of the injury must be given to the insurer or the employer "as soon as practicable" after it happens. The notice should state, in ordinary language, the time, place and cause of the injury and be signed by the injured worker (or someone on the worker's behalf). Lack of notice does not bar a claim if the insurer, employer or its agent knew about the injury, or if the insurer was not harmed by the lack of notice.

A claim for compensation must be filed within four years from the date the worker first became aware that the disability was caused by the job. For a death, the claim must be made within four years after the death. Paying compensation or filing a claim stops the clock for other benefits for the same injury.

No weekly wage benefits are paid unless the injury keeps the worker from earning full wages for at least five calendar days. If the incapacity lasts 21 days or more, benefits are paid from the first day of incapacity. If it lasts at least five but fewer than 21 days, benefits are paid starting on the sixth day.

Temporary total incapacity benefits are 60% of the worker's average weekly wage before the injury, up to the state maximum, for up to 156 weeks. If the worker's average weekly wage is below the state minimum rate, the benefit equals the worker's average weekly wage. Partial incapacity benefits are 60% of the difference between the pre-injury wage and what the worker can earn after the injury, capped at 75% of the total incapacity amount, generally for up to 260 weeks (extendable to 520 weeks in some serious cases).

By statute, the maximum weekly compensation rate is 100% of the state average weekly wage, and the minimum is 20% of the state average weekly wage, using the figure in effect on or just before the date of injury. The state average weekly wage is set each year (on or before October 1).

The insurer must pay for adequate and reasonable health care. The worker may choose a treating health care professional (other than one picked by the insurer) and may switch to another one once. When referred to a specialist, the worker may also change once within that specialty. If the insurer uses a preferred provider arrangement, the worker's first scheduled appointment may be required to be with a provider in that plan, but emergency treatment from outside providers is covered. Workers may not be charged copayments or deductibles.

If incapacity is permanent and total, the worker receives two-thirds of the pre-injury average weekly wage, between the state minimum and maximum rates, after temporary benefits end. Separately, one-time payments are made for specific losses (such as loss of an eye, hearing, an arm, hand, leg or foot, or loss of use), calculated as a set number of weeks of the state average weekly wage; partial loss of use is paid in proportion. Losses are measured using the American Medical Association Guides to the Evaluation of Permanent Impairment. Disfigurement may be paid up to $15,000 (purely scar-based disfigurement only if on the face, neck or hands).

If a work injury causes death, a surviving spouse who was wholly dependent receives two-thirds of the worker's average weekly wage (at least $110 a week, and not more than the state average weekly wage), plus $6 a week for each qualifying child, subject to limits. Payments to a spouse stop on remarriage, after which each child receives $60 a week. Total payments are generally capped at 250 times the state average weekly wage, except that payments to children under 18 continue to age 18 and a spouse or incapacitated child who is not self-supporting may continue to receive payments. Burial expenses are paid up to 8 times the state average weekly wage.

A claim must be in writing, state the date, place, cause and nature of the injury, and be filed with the Department of Industrial Accidents and sent to the insurer on the department's form, listing the benefits claimed. A claim for weekly benefits is not accepted unless it comes with the insurer's denial notice or at least 30 days have passed since the disability began. The department's conciliation unit first tries to resolve the claim informally.

If conciliation does not resolve the dispute, the case goes to an administrative judge for a conference, after which the judge issues a written order. Any party may appeal that order within 14 days for a full hearing before the administrative judge. A party unhappy with the hearing decision may appeal to the department's reviewing board within 30 days; the appeal requires a fee of 30% of the state average weekly wage, which may be waived for indigent workers. The reviewing board reverses only if the decision was beyond the judge's authority, arbitrary or capricious, or contrary to law.

An employer may not fire, refuse to hire or otherwise discriminate against an employee because the employee used a right under the workers' compensation law or testified or cooperated in a proceeding (unless the employee knowingly took part in a fraudulent proceeding). The worker may sue in superior court; an employer found in violation must pay lost wages, provide suitable employment and pay reasonable attorney fees. An injured worker who can do the essential functions of a job, with or without reasonable accommodation, is also protected as a qualified handicapped person under the state anti-discrimination law.

Temporary total incapacity benefits (Section 34) are limited to 156 weeks. Partial incapacity benefits (Section 35) are limited to 260 weeks, which can be extended to 520 weeks if the insurer agrees or an administrative judge finds that the worker has a qualifying level of permanent partial disability. Combined temporary total and partial benefits cannot exceed 364 weeks, or 520 weeks when that extension applies. Permanent and total incapacity benefits (Section 34A) have no stated week limit in the statute.

Yes. An insurer and worker can agree to a lump-sum settlement, but it must be reviewed and approved by the Department of Industrial Accidents. If the worker has no lawyer (or in certain other situations), the settlement is not final until an administrative judge or administrative law judge approves it; otherwise a conciliator, administrative judge or administrative law judge reviews and approves it as complete. A settlement made after the insurer has accepted liability does not end the insurer's responsibility for medical benefits. Settlements may not include releases that waive future employment, other workers' compensation claims, or wrongful-discharge claims; such releases are void.

A worker who does not give the employer written notice at the time of hire (or within 30 days after the employer becomes insured) that he or she claims the right to sue is held to have waived the right to sue the employer at common law for a compensable injury; the worker's family is likewise held to have waived claims against the employer. A worker who did reserve the right may later waive it in writing. If the employer is uninsured, the worker may sue the employer and the employer loses the usual defenses.

If someone other than the insured employer is legally liable, the worker gets workers' compensation without having to choose, and either the worker or the insurer may sue the third party; the insurer may not sue until compensation has been paid and 7 months have passed since the injury. The recovery goes first to the insurer up to what it paid, and the worker keeps any excess; attorney's fees and interest are shared in proportion to amounts received. Settlements with the third party (other than during trial) need approval of the board, the reviewing board or the court after a hearing.

The Workers' Compensation Trust Fund pays approved claims against employers who are uninsured in violation of the law, if the worker is not entitled to benefits in another state, and may then recover from the uninsured employer. A worker may also sue the employer for damages within 20 years after learning the injury was work-related, and in that suit the employer cannot defend by blaming the worker's or a co-worker's negligence, assumption of risk, or lack of employer fault.

A claim for benefits is filed with the Department of Industrial Accidents and the insurer; a weekly compensation claim is accepted only with the insurer's denial notice or after 30 days from the onset of disability. After a conference, a party unhappy with the administrative judge's order has 14 days to appeal for a full hearing. A party unhappy with the judge's decision after the hearing has 30 days from its filing to appeal to the Reviewing Board, with a fee of 30% of the state average weekly wage (waivable for indigent claimants); late appeals may be allowed within one year for reasonable cause.