Litigation of Claims -

Massachusetts Workers’ Compensation – The Contested Claim

If an insurer denies an injured worker’s claim, then the litigation process can prove to be extremely frustrating. It is essential that everyone involved in the claim, the injured worker, his or her spouse, and their children prepare for what can take over a year to complete.

Beware of anyone who claims that he or she can shorten the process for you. If the insurer contests a claim there is no way around this timetable, and anyone who tells you differently is not being fair and honest with you.

Am injured worker cannot file a claim until 30 days after the industrial accident unless the insurer denies the claim before that time. The insurer has 14 days from the date it receives the claim to either accept the claim or deny it. The Department of Industrial Accidents, when it receives the claim, schedules a conciliation, which takes place within 3 weeks of the date of the claim.

The conciliator assigned by the DIA to the case does not have the authority to order payment. The conciliator’s role is to first verify that the claim contains the necessary documentation for a Judge to order compensation. If the conciliator is satisfied that the claim is properly filed, then she or he next mediates the case in an effort to have the parties resolve their differences without the intervention of a Judge. Assuming that the conciliators’ best efforts fail, the case is sent forward for an administrative Judge to decide.

The first step of litigation before the administrative Judge is a conference that occurs 12 to 15 weeks after the conciliation. The Judge listens to the arguments of the lawyers for the employee and the insurer, reviews the documents provided by the parties, but does not take any testimony. Within 7 days of the conference the Judge issues a temporary order, which either awards compensation or denies a claim. If the claim is denied, or less compensation is awarded than the employee is entitled to receive, then an appeal is taken.

The next step is a hearing, which is conducted under the rules of evidence. Before this hearing is commenced, however, an impartial doctor appointed by the DIA generally sees the injured worker. The doctor examines the worker and reviews his or her medical records and test results, and then files a report with the DIA and the parties. This report is most often the medical evidence upon which the Judge must rely when he or she renders a hearing decision.

It usually takes 3 months from the appeal of the conference for an impartial exam to take place, and at least 2 months thereafter for the hearing to be held. If the Judge allows additional medical testimony the hearing record will be held open for another 6 to 8 weeks. Judges file detailed hearings decisions 2 to 3 months after the close of evidence.

The Workers’ Compensation Act has a fixed timetable defined in it. If the DIA had the necessary resources, the time from conciliation to hearing decision would be about 5 or so months. Strict compliance with the statutory process is not practicable, and should not be expected. To summarize, in most cases, one month must pass after an accident before a claim can be filed. 3 weeks after the claim, conciliation is held, a total of 7 weeks after the accident. A conference is conducted 12 to 15 weeks after the conciliation bringing the time to 19 to 24 weeks post accident. The appeal takes about 2 weeks to process after which an impartial exam and report requiring an additional 14 weeks bringing the wait to 33 to 38 weeks. Two months later the hearing is held, and 2 to 3 months thereafter a decision is filed, bring the total time from claim to hearing decision to approximately 41 to 51 weeks.

Lawyers do a great disservice to clients by failing to be candid about the length of time it takes bring a case from filing to decision. Clients are entitled to know how long the process takes so that they can plan accordingly. Clients also need to be advised that that health insurance is required to provide for payment for medical care when a workers’ compensation claim is denied. Health insurers may recover these payments if the employee wins the case, but in the meantime the need for treatment is crucial to recovery, and should not be a hostage of the litigation.

The time one waits for a decision on a workers’ compensation claim has a great effect on an injured worker; quality representation requires that the injured worker be informed of the length of time that the process can take in a fair and candid manner. The failure to be honest with the injured worker undermines a meaningful relationship between a lawyer and client when the client is particularly vulnerable. Insist that whomever represents you gives you not only an honest assessment of your case, but also an accurate assessment how long it will take.

Speak with a Massachusetts Workers’ Compensation Lawyer

To speak with a highly experienced workers’ compensation lawyer, click here, or telephone Parker Scheer LLP seven days a week, toll free at 886-414-0400. There is no fee charged to discuss your case, and all information furnished will be kept strictly confidential.