I’ve been injured at work; can I bring a lawsuit for my injuries?
Each year, thousands of workers are injured on the job and pursue worker’s compensation claims that provide for payment of accident-related medical bills and reimbursement of a portion of their lost wages. These benefits are limited and do not include compensation for pain and suffering. The trade-off for these limited benefits is that an employee only needs to show that they suffered an injury during the course of their employment. They do not need to show that their employer was negligent in causing their injury. We are often asked; can I bring a lawsuit for all damages that I have suffered as a result of a work injury. The answer is a resounding MAYBE.
An employee is not able to sue their employer for injuries sustained during the course of their employment. Rather, they are able to pursue a worker’s compensation claim for the damages outlined above. The employee can, however, pursue a third-party claim if another individual (who is not a co-employee) or entity is responsible for their injury. Examples of common third-party claims include injuries that occur on construction sites and injuries that occur in manufacturing plants.
On construction sites, there is a general contractor and many sub-contractors that perform work. The general contractor has overall worksite responsibility and they are not able to delegate that duty to another person or entity. The rationale for having the general contractor maintain overall worksite responsibility is to ensure that safety practices and protocols are being enforced on the worksite. Aside from the general contractor, construction sites often have many sub-contractors performing different trades of the construction project. Examples of sub-contractors on construction sites include laborers, steel and ironworkers, plumbing, and electrical workers.
If an injury occurs to an ironworker on a construction site, an investigation will begin to determine whether another entity contributed to the employee’s injury. In some cases that investigation will conclude that no other entity will be responsible. Rather, the iron worker’s employer or a co-employee may be solely responsible for the worker’s injury. If the investigation concludes, however, that a plumbing contractor’s employee contributed to the iron worker’s injury, then a third-party claim can be brought against the plumbing company. And, depending on the results of the investigation, a claim against the general contractor may also be brought by the injured worker if worksite safety contributed to the cause of the injury.
The same holds true if an injury occurs at a manufacturing plant. An investigation will begin to determine whether the cause of manufacturing plant employee to determine the cause of the injury and whether a third party can be held liable for the injury. Often, when an injury occurs at a manufacturing plant, the investigation focuses on the product being used by the worker. The investigation looks into whether the product being used by the injured was defective in any regard and whether that defect caused or contributed to the worker’s injury. If a product defect is found and if the defect was the cause of the worker’s injury, then a third-party claim can be brought against the product manufacturer.
There are many other examples of potential third-party claims, but the above-cited examples represent the most common third-party claims. If you have been injured at work and believe a third-party may have caused or contributed to your injury, please contact the Boston personal injury lawyers Parker Scheer LLP to discuss your case with an attorney who can help you.
How long do I have to work at my job in order to be covered by Massachusetts workers’ compensation?
The Massachusetts Workers’ Compensation Act (Massachusetts General Laws, Chapter 152) covers all employees hired in Massachusetts from the moment that he or she is hired. There is no waiting period for coverage, but there is a waiting period for payment of weekly compensation. All persons injured in Massachusetts while in the course of their employment are covered by the Massachusetts Workers’ Compensation Act regardless of where they were hired.
How much work must I miss in order to receive workers’ compensation checks?
Massachusetts Workers’ Compensation laws provide that a person injured on the job must miss 5 calendar days before becoming entitled to workers’ compensation benefits which are payable as of the 6th day, and not before. If a person is out of work due to an industrial accident for more than 21 days, then the insurer is required to pay for the first 5 days. If an injured work misses more than 5, but less than 21 days, then payment is made only for the days missed after the fifth day.
How long can I get weekly benefits?
A worker who is temporarily totally disabled can receive up to 60% of his or her average weekly wage for a period of up to 3 years. If an injured worker is partially disabled by an industrial accident, then she or he can receive 60% of the difference between their pre-injury wage and that which they are capable of earning after the injury. These benefits are payable for up to five years. The sum of the temporary total and partial disability is limited to seven years; for example, 3 years of total and 4 years of partial, 2 years of total, and 5 years of partial. There is an exception to this general rule, which may extend benefits to up to 10 years of partial under certain circumstances. Additionally, an injured worker can receive weekly benefits for life if that worker is not able to work in any capacity for the rest of his or her life.
Is there a maximum weekly benefit?
Yes. The maximum weekly compensation rate is set on October 1 each year. It is currently $ 431.66 for accidents occurring after that date. Because this rate changes from time to time, it is recommended that you speak with a qualified attorney to verify the latest published rates.
Is there a minimum?
Yes. The minimum weekly compensation rate is set on October 1 each year. It is currently $ 286.33, or a worker’s full average weekly wage if that wage is less than $ 286.33 for accidents occurring after that date. Again, Because these rates change from time to time, it is recommended that you speak with a qualified attorney to verify the latest published rates.
How are benefits calculated?
The insurance company obtains a wage record from an injured employee’s employer. An average weekly wage is then calculated by dividing the total gross wages, including overtime and bonus, by the number of weeks worked by the employee. However, if the work is considered seasonal in nature, then the total wages are divided by 52 weeks even if the employee worked for less than the 52 weeks.
An injured worker who is unable to work in any capacity is entitled to 60% of this average wage up to a maximum defined by the Department of Industrial Accidents.
If an injured worker is partially disabled, subtract the earnings that workers are earning or can be expected to earn from the average weekly wage and multiply the difference by 60% to get the partial disability rate. This rate, however, cannot exceed 75% of the total disability rate.
What is the difference between total disability and partial disability?
The crucial distinction between total and partial disability is based upon a number of different factors including the injured worker’s age, education, work experience, fluency in both written and spoken English, and physical impairments caused by the industrial accident. While doctors may characterize one as totally disabled, Administrative Judges apply these factors in assessing the impact of an injury upon a workers’ earnings capacity. The analysis is not limited to merely whether one can perform his or her usual job, but rather whether a person can perform work other than “that of a trifling nature.” If it is determined that an injured employee can work in a job other than the one in which he or she was working when injured, then that worker may not qualify for total disability. This is an area of the law where subtle differences have a huge impact on the amount of benefits payable as a result of an industrial accident.
Are workers’ compensation benefits taxable?
Workers’ compensation payments are not taxable under either state or federal income tax law.
Can my children obtain payments while I am disabled?
Dependency benefits are only payable if the injured worker’s weekly compensation drops below $ 150.00 per week in which case an additional $ 6.00 per week per dependent is added to the workers’ compensation rate until it reaches $ 150.00.
Is there a deductible for medical payments?
No. Medical providers, including pharmacies, treating injured workers under the Workers’ Compensation Act are required to accept rates published by the state as full payment for the treatment provided, and cannot charge an injured worker any amount in excess of those amounts. However, many doctors do not accept the rates paid by Workers’ Compensation. Therefore, it is important to check with the doctor before beginning treatment.
Can I choose my own doctor?
Yes. However, an employer can require you to see a preferred provider for the initial visit only if the employer so desires. After that visit, you can treat with whomever you choose. There is one important limitation to bear in mind. You can switch doctors only once within a medical specialty. If you desire to change more than once, you must receive permission from either your employer or the insurer.
Do I need to get permission to see a doctor?
No. You can schedule an appointment with whomever you choose whenever you choose. However, it is important to understand that the state publishes treatment guidelines for most medical conditions, and pre-approval is needed before undergoing most treatment or testing. Insurers are required to provide payment for all medical care which is reasonable and necessary to treat a work-related injury. However, it is important to understand that the state publishes treatment guidelines for most medical conditions and pre-approval is needed before undergoing most treatment or testing
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, at 617-886-0500. There is no fee charged to discuss your case with one of our workers’ compensation lawyers, and all information furnished will be kept strictly confidential.