Workers' Compensation Cases - Whitman Expertise

Injured While Working for Your Employer

Often, an employee may be injured to the extent that they are unable to work. The Massachusetts workers' compensation system is set up to pay injured workers 60 percent of their average weekly wage. Also, all reasonable and necessary medical bills are covered by workers' compensation. There is also statutory compensation for injured workers who have a portion of their body permanently disabled and for scarring to the hands and face.

Workers' Comp Benefits FAQ

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• Can I, or should I, use the time off available with the Family Medical Leave Act if I am injured at work?
• My employer is requiring me to use my vacation time up to cover a part of the time I have been out. Is this legal?
• When will I begin receiving benefits? Do I have to wait at all?
• How much will my benefit check be for?
• How did they determine my weekly wage? Is any overtime included in the calculation?
• Will workers' comp cover the loss of the income from my second job?
• Do I have to pay any taxes on my workers' comp benefits?
• I'm not receiving the benefits but I should be. What should I do?
• Does the insurance company have to pay interest or a penalty for withholding my payment without a valid reason?
• Can I be reimbursed for mileage and other expenses related to my injury?
• What is "temporary total disability" (TTD)?
• What is "permanent partial disability" (PPD)?
• How long will I be receiving TTD payments?
• Each time I go to a hearing, it seems the insurance company is able to cut my benefits.
• Should I apply for Social Security Disability?
• I've been told that I cannot receive the full amount from both workers' comp and SSDI. Why not?
• My company won't provide the job accommodations I need for me to do my job. Don't they have to?
• Aren't I entitled to vocational rehabilitation?
• Do I have to attend vocational rehabilitation?
• How are death claims handled? How long do benefits continue?
• When can I get a final settlement of my claim?
• Can I appeal the final decision that was made in my case?
• How will my attorney be paid?
• What about Social Security Disability?

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Q: Can I, or should I, use the time off available with the Family Medical Leave Act if I am injured at work?

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A: The Family Medical Leave Act ("FMLA") provides up to 12 weeks of job protection if an employee has to be off from work for emergency reasons. Usually, the employer takes the injured employee back after medical treatment is completed. If the injured employee is concerned about the status of his of her job, he or she can apply for FMLA benefits.

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Q: My employer is requiring me to use up my vacation time to cover a part of the time I have been out. Is this legal?

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A: If you are off work as a result of a work accident, you should use temporary total disability time under the workers' comp laws. You should not use vacation time.

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Q: When will I begin receiving benefits? Do I have to wait at all?

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A: Once the carrier has received notice of your accident and has investigated the claim and found you eligible for compensation, benefits should start shortly thereafter. If benefits aren't forthcoming, an emergency hearing may be needed before the state Industrial Commission.

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Q: How much will my benefit check be for?

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A: When you are off work with a medical authorization, the benefits are called "temporary total disability" ("TTD") benefits. They're paid at a percentage of your average weekly wage.

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Q: How did they determine my weekly wage? Is any overtime included in the calculation?

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A: Average weekly wage is calculated by dividing the earnings from the 52 weeks before the accident by 52, to arrive at an average weekly wage. Each state is different regarding overtime. When overtime hours are included, they're added in at the straight time rate. Since different states handle this issue differently, you should talk to a lawyer in your state.

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Q: Will workers' compensation cover the loss of the income from my second job?

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A: If your primary employer knew of your second employment, then benefits are to be paid at the combined rate. This is a very fact-specific issue and must be proven with wage statements from the second employer.

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Q: Do I have to pay any taxes on my workers' compensation benefits?

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A: No, workers' comp benefits aren't earned income.

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Q: I'm not receiving the benefits but I should be. What should I do?

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A: Make certain your employer has reported the accident to their workers' comp carrier. Provide them with medical documentation showing that you cannot work. Call the carrier to determine why you aren't getting benefits. If you cannot learn the reason for the denial, you may need to consult an attorney.

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Q: Does the insurance company have to pay interest or a penalty for withholding my payment without a valid reason?

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A: There are penalties for the willful underpayment or nonpayment of benefits. The injured employee must apply to the state Industrial Commission, alleging the wrongful denial of benefits and requesting the penalties be awarded against the carrier.

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Q: Can I be reimbursed for mileage and other expenses related to my injury?

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A: Mileage to the insurance company's doctor is to be reimbursed. Other expenses paid out-of-pocket, such as prescription or medical expenses, should be reimbursed with proper receipts.

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Q: What is "temporary total disability" ("TTD")?

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A: TTD is that payment made to the injured employee when he or she is medically authorized not to work. It is paid weekly or every two weeks at a percentage of the average weekly wage.

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Q: What is "permanent partial disability" ("PPD")?

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A: PPD is the lasting disability that the injured employee sustained as a result of the work injury.

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Q: How long will I be receiving TTD payments?

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A: TTD payments will continue as long as you are medically authorized off work or your employer has no work within your restrictions.

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Q: Each time I go to a hearing, it seems the insurance company is able to cut my benefits. How can they do this? My injury hasn't improved or changed.

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A: Insurance carriers have different interests than the injured employee. They will try to pay minimum benefits if possible. They have attorneys who are well-versed in workers' comp law. You should contact an attorney concentrating in workers' comp as soon as possible.

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Q: Should I apply for Social Security Disability?

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A: If your injury is serious and you will not be able to return to work, you should apply for Social Security benefits.

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Q: I've been told that I cannot receive the full amount from both workers' comp and SSDI. Why not?

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A: You cannot collect full workers' comp and SSDI benefits. If you are on workers' comp, the amount of SSDI benefits will be reduced, or offset, by an amount based on the amount of TTD you are getting.

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Q: My company won't provide the job accommodations I need for me to do my job. Don't they have to?

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A: If the employer has work within your restrictions, you must try the work. If they aren't able to accommodate your restrictions, you're entitled to remain on TTD.

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Q: Aren't I entitled to vocational rehabilitation?

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A: If your employer doesn't have work within your restrictions, you may be entitled to vocational rehab. Most carriers would prefer that you return to your prior employer, because it is less costly than having to hire a vocational counselor. The requirements for vocational rehab differ in each state, so you should check your state's laws to make certain that you meet the requirements for rehab.

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Q: Do I have to attend vocational rehabilitation?

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A: If your employer doesn't have work within your restrictions and offers vocational rehabilitation, then you have to try the program. If you fail to do so, then your TTD benefits may be suspended.

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Q: How are death claims handled? How long do benefits continue?

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A: Death claims are handled differently in each state. Generally the benefits are paid to "dependents" (which might include spouses, children or parents) if the death was caused by an occupational injury. The medical proof must be presented to the workers' comp carrier. Benefits will continue as set forth in the state statute. You should consult an attorney to make sure that the benefits are properly calculated.

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Q: When can I get a final settlement of my claim?

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A: Workers' comp claims shouldn't be settled until your medical treatment is completed because once a case is settled, medical benefits will not be paid. But there is no requirement in the law that the carrier must make you a settlement offer. You may need legal counsel to get a settlement.

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Q: Can I appeal the final decision that was made in my case?

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A: Each state has different rules regarding appeals of cases. You need to consult an attorney regarding the specific rules in your state. The decision can be appealed to the highest court that your state allows.

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Q: How will my attorney be paid?

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A: The attorney's fee is to be paid out of the settlement. The fee is taken at the end of the case and generally no fee or cost is paid until the case settles.

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Q: What about Social Security Disability?

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A: Federal disability benefits are available to workers or individuals if you are medically unable to work. If you are found to be eligible, you receive monthly cash payments. There are two general programs: Social Security Disability Insurance (SSDI), which provides benefits to disabled workers, and Supplemental Security Income (SSI), which is an income based program for disabled persons who do not have the required work history to be eligible for SSDI.

Under these programs, a person is disabled if they are unable to engage in any substantial gainful activity due to any medical determinable physical or mental impairment. The disability must have lasted or be expected to last for a period of 12 months or more.

The Law Office of Steven R. Whitman represents persons seeking benefits through all stages of the eligibility process, from application to the final determination of the case.

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