This is one of the most frequently asked questions posed on the internet regarding workers compensation cases in Massachusetts.  Fortunately, the answer to this question is relatively simple, and, in most cases, the injured workers does not pay anything out of pocket.

The attorney’s fees in workers compensation cases are located at M.G.L. Chapter 152, Section 13A.  Most of the fees payable to an employee’s attorney are known as the “statutory fees.”  These are fees that are generated when a workers comp claim becomes active in litigation at the Department of Industrial Accidents.  Litigation can arise from an employee’s attorney filing a claim on behalf of the injured employee.  Or, in the alternative, an insurer may initiate litigation by filing their own complaint for discontinuance or modification of an employee’s benefits.

The point is, when a case becomes active like this, an attorney’s fee may become due.  However, in these instances, the Insurance company pays the attorney’s fee. It is not paid by the Employee.

For example, let’s say a worker sustains an injury and is forced to go out of work.  Very often, the workers comp insurer will deny the case from the outset.  This forces the injured worker to hire an attorney, who must then file a claim for benefits at the Department of Industrial Accidents.  If benefits are later paid by the Insurance company (either be agreement, a Judge’s Conference Order, or a Judge’s Hearing Decision), an attorney’s fee will become due.  In these instances, the Insurance company, in addition to being ordered to pay the injured worker’s benefits, will also be ordered to pay a fee to the employee’s attorney.

The other main way an employee’s attorney will get paid is upon a settlement of the claim.  Settlements can arise in a variety of situations.  If the case settles, the employee’s attorney will take a fee as a percentage of the settlement.  Section 13A provides that the attorney’s fee on settlements where liability is established to be no more than 20%.  On settlements where liability is not established, the attorney’s fee is to be no more than 15%.

Section 13A(10) also provides that “…attorneys’ fees specified in this section shall be the only fees payable for any services provided to employee’s under this chapter unless otherwise provided by an arbitration agreement pursuant to section ten B.”

Section 13A(10) also provides that a portion of the Employee’s benefits (if paid pursuant to a Judge’s Order or an agreement) can be reduced up to 22% for the first month of benefits to make up a portion of the attorney’s fee.  This is a little known section that isn’t invoked very often.  However, it is important to note that the section does exist, and can result in a reduction of benefits for the first 30 days.

If you have sustained a work related injury and hire an attorney, it is essential that the attorney be an experienced Massachusetts Workers Comp Lawyer, who is familiar with the attorneys’ fees specified in Chapter 152.

At Troupe Law Office, we have over 50 years of experience solely in the representation of injured workers and their families. Please visit our web site for more information. Or, call us at (978) 531-7401. We offer free consultations for all cases.

This is a highly complicated question with no simple answers, and it’s a process that often leaves the injured employees scratching their heads and wondering why they can’t get the treatment they need.

After sustaining a work-related injury, your employer’s workers’ compensation insurance is responsible for any reasonable and related medical treatment you might need.  Sections 13 and 30 provide for the payment of reasonable, necessary, and related medical treatment.  This is not to say, however, that anything and everything submitted through this insurance will get approved. More often than not, disputes over medical treatment result in lengthy litigation. It is quite important in these situations to have an experienced, Massachusetts workers’ compensation lawyer to assist and guide you throughout this process, for the various reasons outlined in this article.

Following a work related injury, it is of vital importance to see a doctor as soon as possible.  This is not only to ensure that the injury is treated quickly and effectively, but also to ensure that there is a paper trail.  Even if the injury is relatively minor, a trip to the doctors office can pay dividends down the road; particularly in situations where the injury gets worse over time.  At this initial visit, the general rule of thumb is to tell your doctor how the injury happened, and ensure that the doctor or the staff note that the injury happened at work.  One of the most common reasons workers comp insurers deny claims is because there is no initial report of the injury.  Don’t let this happen.  Ensure that there is a paper trail.

Requests for medical treatment are made by the doctors’ offices.  Treatment requests are submitted through a process called Utilization Review.  Essentially, this is an outside company that reviews requests for medical treatment and makes a determination if the treatment is reasonable and necessary.  If UR denies the treatment, the denial must be appealed.  Usually, within 30 days.  If it gets denied a second time, then a claim for medical benefits must be filed.  It is important to note, however, that it must go through this two-part process before any claim can be filed.

If UR approves the requested treatment, this often means that the treatment can commence.  However, UR is only part of the process.   The workers comp insurance adjuster is the one who actually approves or denies the requested treatment.  The adjuster is the final step and the adjuster can deny treatment requests even though UR deemed them reasonable and necessary.  The adjuster makes the final determination as to whether or not he/she feels the treatment is related to the work injury.

Under both circumstances (a UR denial, or a denial from the adjuster), filing a claim for medical benefits is the only remedy to get the requested treatment approved.  Once the claim is filed, the Employee’s attorney will have an opportunity to try and negotiate with the Insurer’s attorney.  Often times, an agreement can be reached.  If, however, the Insurer digs in it’s heels, the case may have to proceed further in the litigation process, and go before a Judge at a Conference, pursuant to Section 10A.  The Judge then has the power to order the Insurer to pay.

This, however, is not the end of the road.  The aggrieved party, either the Insurer or the Employee, has the right to appeal the Judge’s Conference Order.  Then, the process is as follows:  the Employee sees an Impartial Doctor pursuant to Section 11A, and, possibly, the matter is then heard at a Hearing, pursuant to Section 11.  A Hearing is essentially a trial, where testimony is taken, usually by the Employee.  Following a Hearing, the Judge will write a decision, ruling on the issue of the proposed medical treatment. Then, technically, the matter can be appealed further to the Reviewing Board, and, possibly, to Superior Court.

It is important to note that claims for mere medical treatment rarely proceed to a full Hearing or beyond.  Most often, after the impartial report, the parties are able to come to an agreement on the issue of the treatment in question.

One final dilemma occurs when the doctor requests treatment and the insurer agrees to pay, BUT, the parties cannot come to an agreement as to the price/cost of the treatment.  The MA Comp Law provides that a workers comp insurance company only has to pay whats known as a “DIA Board Rate.”  This is an amount set by the Department of Industrial Accidents rate setting committee, and it basically states the maximum amount the workers compensation insurer will have to pay.  So, after all this back and forth, it is fairly common for the parties to agree that the proposed treatment is needed, only to find that they cannot agree on the rate.  In situations like this, the Employee’s attorney has to have the hard  conversation with the Employee and often has to tell them that they have to find another doctor.  This is extremely frustrating.  It is, however, important to note that often time the workers comp insurance companies will pay above the DIA Board rate, as delaying treatment often only serves to prolong the Employee’s disability, of which they are also paying.

As you can see, this is a complicated process.  It is also a process that takes time.  And, in these situations involving claims for medical treatment, the Employee has very little option but to wait.  This can be a very difficult time.  And, this is why having an experienced Massachusetts Workers Comp Lawyer to represent you is extremely important.  A knowledgeable and experienced comp lawyer can ensure that the treatment in question gets approved as quickly as possible.  But, even still, a quick resolution over a simple request for medical treatment is not guaranteed.  This is one of the many imperfections of the MA workers comp system.

At Troupe Law Office, we have over 40 years of experience solely in the representation of injured workers and their families. Please visit our web site at for more information. Or, call us at (978) 531-7401. We offer free consultations for all cases.

The short answer is Yes.  That is, if you want to ensure that your rights are adequately protected and ensure that you obtain the highest settlement value possible.

Are you required to have an attorney to settle your workers comp case?  That answer is no, actually.  However, it is inadvisable under most circumstances.

Why is this?

If you are an employee who has been injured at work, you are entitled to collect various benefits under the Massachusetts Workers Compensation Act.  Under this Act, an injured employee is entitled to, among other things, weekly disability benefits while they remain out of work, as well as medical benefits that are related to the work injury.  Sounds simple.  But it’s not.

The reason is that these payments (both weekly disability checks and the work related medical benefits) are paid by workers compensation insurance companies.  And, like any insurance company, these companies are looking out for themselves first, and you second.  These companies are all about saving money by paying you, the injured employee, as little as possible.   They will try to do this in as many ways possible.  But the bottom line is that their business thrives by paying you less.

Furthermore, when workers compensation cases wind up in court, the insurance companies hire lawyers to represent their interests.  Like the companies they represent, these attorneys have a fiduciary obligation to represent their clients to the best of their abilities.  Again, this generally means, saving the insurance company as much money as possible.  And again, this is accomplished at the expense of the injured worker.

So why is it vital to have an experienced Massachusetts Workers Comp Lawyer at your side?  Because they are looking out for you; the injured worker.  They are there to balance the books and ensure that your rights are protected.  They are there to ensure that you are not taken advantage of.  Your rights come first.

A workers compensation settlement under Section 48 of the Massachusetts Workers Compensation Act, provides, in certain situations, a lump sum payment to the injured worker to close out their claim.  The settlement value is determined by a number of factors, and can range from very small to very large amounts.  These factors are not always common knowledge to lay individuals who don’t practice in this area.  But the Insurer’s attorneys know the law quite well, and will do their best to ensure that the insurance companies pay out as little as possible.  Therefore, it only makes sense for the injured worker to have someone at their side as well.

Don’t let the insurance companies take advantage of you.  Hire an experienced Massachusetts Workers Comp Lawyer to ensure that your rights are protected, and that you obtain the best settlement possible.

At Troupe Law Office, we have over 40 years of experience solely in the representation of injured workers and their families. Please visit our web site at for more information. Or, call us at (978) 531-7401. We offer free consultations for all cases.

This is one of the most frequently asked questions on the internet…pertaining to workers compensation cases in Massachusetts.  It is also a difficult question to answer.  This is because the role of a workers compensation attorney varies case by case.

When an injured workers meets with their prospective attorney for the first time, generally the attorney will use this first meeting to gather as much information as possible about the client and the injury itself.  This includes gathering the client’s personal information, educational background, and work history.  The attorney will also gather as much information as possible about the injury that occurred and the subsequent medical treatment the injured worker has received.

What the attorney does following this initial meeting largely depends on what has transpired since the injury.  Many times, the injured worker is already receiving workers compensation benefits.  In other words, the workers comp insurer is doing exactly what they are supposed to be doing.  In situations like this, there may not be much at the attorney has to do.  Often time, in situations like these, it is advisable for the attorney to “hang in the background,” rather than immediately file his or her appearance with the Department of Industrial Accidents.  Doing this will put the insurer on notice, and how they respond to attorney getting involved is up in the air.  They could view this as the employee attempting to file a legal action and respond by preempting and cutting off the employee’s benefits.  This happens quite a lot.  An attorney would be well advised to avoid doing anything that could jeopardize an employee’s receipt of benefits.

In situations like this, we generally hang in the background and make very clear to the client that it is their responsibility to keep their attorney appraised of any and all development on their case.  That way, the attorney can adequately and effectively advise the injured employee going forward.   It is important to note that although the attorney may not have technically filed his or her appearance on the case, this is still a very crucial time period in the life of a workers comp case.  In fact, what happens during this initial period can often have lasting effects throughout the cases life cycle.  Being well advised by an experienced Massachusetts Workers Comp Lawyer during this period can help pave the way for a much smoother process throughout the case.

On the contrary, just as often the injured worker will meet with their attorney and have not received any benefits following their injury.  In fact, they may have already received a denial of payment form from the comp insurer.  In situations like these, the attorney needs to get involved immediately by filing a claim for benefits with the Department of Industrial Accidents.  This is where the attorney gets more personally involved.  Filing a claim essentially means going to court to get one of the workers comp judges to order benefits to be paid.  These claims are administered through the Department of Industrial Accidents; the workers comp court system.  There are 5 locations for the DIA throughout Massachusetts:  Boston, Lawrence, Fall River, Worcester and Springfield.  Which DIA location your case will be assigned to depends on where you live.

This is where it is crucial to have an experienced Massachusetts workers comp lawyer to represent you.  Insurance companies love employees who are either unrepresented (pro se) or represented by a practitioner who does not specialize in this specific field of law.  Ensure that your rights are effectively protected by hiring a lawyer who specializes in Massachusetts Workers Compensation Law.

At Troupe Law Office, we have close to 60 years of combined experience between our two attorneys.  We specialize in Massachusetts Workers Compensation law and can help ensure that your rights are effectively protected during this crucial period following a work injury.

The answer is Yes. As soon as possible.

Injuries that take place in the workplace come in many forms. They can be minor and simple, such as scrapes and bruises. They can also be severe and traumatic. Sometimes they can even result in death.

Every injury is different. From the way it occurs to the effect it has on the injured individual. But the answer to whether or not you should report the injury to your employer is the same for all injuries. Yes, you should report the injury as soon as possible.

Very often, employers and workers’ comp insurers will do their best to avoid liability for any particular injury. One of their most often used defenses is that they were never aware that an injury took place. Sometimes they say this even if they were actually aware of the injury. This can make things problematic for the injured employee, as it will likely necessitate filing a workers’ comp claim at the Department of Industrial Accidents, which is a process that can take some time.

Often times, an employee may sustain what seems like a minor injury. It is their hope that they’ll rest at home, or over the weekend, and the injury will just go away. Very often, the injured employee won’t report the injury to the employer right away. Sometimes, this is fine, in that the injury will actually go away and never cause any further problems down the road. But what if the injury does come back?

In scenario’s like this, there is a latency period between when the injury occurs and when it actually becomes disabling. If the injury is not reported right away, it can make things very problematic to have to go back and put the pieces together. Having have reported the injury in the first place will likely make things much easier.

Other scenarios involve an employee who has sustained an injury, but doesn’t want to report it because they don’t want to cause problems, or rock the boat. Sometimes employees are afraid to report the injury. Other times, the try to report the injury, but the employer brushes them off, or threatens them. Sadly, these situations are quite common.

What do you do in these scenarios?

The first thing to do is to go to your doctor and seek treatment. And, be sure to be very clear with your doctor as to the nature and cause of the injury (both when and how).

The next thing to do is to contact an experience Workers’ Comp Lawyer. The specific circumstances of a particular injury are unique. An attorney experienced in workers’ compensation law will be able to properly advise you on what steps to take.

To sum up, always report a work injury.

At Troupe Law Office, we have decades of experience in representing injured workers and their families. Please visit our website for more information. Also visit our pages on Massachusetts Workers’ Compensation Laws, as well as our Frequently Asked Questions pages.

You have just sustained an injury on the job. You are now out of work. The two most important questions on your mind are probably 1) Am I going to get better, and 2) Will I be paid while I’m out of work.

In a perfect world, immediately following your work related injury, your employer will file a first report of injury. This is the first step in initiating the workers’ compensation benefits. Once they file the first report of injury, the workers compensation insurer, who insurers the employer in the event of a work-related injury, is put on notice. In this perfect world, the insurer will then initiate the payment of weekly benefits within 14 days. Furthermore, any and all treatment related to this injury will be paid for by the workers comp insurer, thus facilitating a quick recovery and a quick return to work.

This is what would happen in a perfect world. If this were the case, you might never need to get a workers comp lawyer. Unfortunately, this is not what happens in reality.

Firstly, many employers are uncooperative. If an employee is injured on the job and reports that injury to his boss, co-workers, or supervisor, there is very little certainty that they will then take the next step of filling out a first report of injury. Furthermore, an employee who is persistent and follows up on whether the employer has filled out the first report of injury may not be viewed in the most favorable light by the employer. Often times, they are viewed as a pain. The point is, it is almost impossible to predict the myriad of circumstances that might unfold following a work related injury. To be fair, many employers treat this process very seriously, and are very cooperative. However, an equal amount of employers, if not more, are very uncooperative, and make this very nerve-racking period in an employee’s life all the more so.

This is just one of many scenarios that can and often do unfold following a workers’ compensation injury. To answer the question, When Should I Get a Workers’ Comp Lawyer: the answer is RIGHT AWAY.

Even under ideal circumstances, an experienced workers’ comp lawyer can help alleviate some of the stressors that are commonly associated with this sensitive period of time in an employee’s life. It is also important to note that often times, if the employer and the workers’ compensation insurance company are doing what they are supposed to be doing, the attorney may simply keep an eye on the situation, and advise the client on the best course of action. A common misconception is that hiring, retaining, or even speaking to and attorney early on is that this attorney is going to sue the employer, or that the case is going to proceed in litigation. That is not the case. It is to the employee’s advantage to have an experience attorney who knows when and when not to get involved.

Eventually, even in a perfect world type scenario, there comes a time when the worker’s comp lawyer need to get involved. This could result from the insurance company not authorizing a course of medical treatment that the employee’s doctor is recommending, or in the event that the comp insurer reduces or terminates the employee’s weekly disability benefits. In these situations, the timing is very important. Often times, if weekly checks are terminated, it can take months to get in front of a Judge and get them reinstated. Therefore, you don’t want to wait until this happens to go searching for an attorney. That is all the more reason why meeting with an attorney as early as possible is to the employee’s advantage.

Please visit our website, as well as our sections on workers compensation law and frequently asked questions pages, for more information. Or, feel free to call us any time at (978) 531-7401, for a free consultation.

This is another frequently asked question that comes up many times over the life of a Workers’ Comp case. While reasonable and related medical benefits for a person who sustained an injury at work can potentially last indefinitely, this question is most often referring to how long can an injured employee remain on weekly disability benefits. In other words, they are usually asking, how long can I be paid for.

The Massachusetts Workers’ Comp. Law is found at M.G.L. Chapter 152. This statute was originally enacted during the early 1900s, and has undergone a series of updates, revisions, and changes since that time. Today, there are 3 main sections that exist in the law which govern how long an injured employee can receive a weekly check. They are Sections 34, 35, and 34A.

Section 34 is known as temporary total disability. If an employee sustains an injury that prevents them from working in any capacity (ie, totally disabled), then they are entitled to receive 60% of their gross wages on a weekly basis. For example, if the injured employee were making $1000 per week, gross, prior to his or her injury, then that person would be eligible to receive Section 34 benefits at the rate of $600 per week. This benefit can last for up to 3 year, or 156 weeks.

Next, is Section 35, or temporary partial disability. If an employee sustains an injury that prevents that from performing their former position, but they do have the capacity to work in a lighter position, then that person would be eligible to receive partial disability under Section 35. The amount the injured employee receives depends on 1) what they were making before their injury, and 2) what their earnings capacity is post injury.

To illustrate, assume the same employee mentioned above, who was making $1000 per week, was working as a pipe fitter. This work generally involves constant, repetitive overhead work. Assume that this person sustains a shoulder injury, preventing them from their former position, but the employer offers them a desk job at $400 per week. In this situation, barring any other factors to the contrary, the employee could accept that position and still receive a weekly comp check. His rate would be determined in the following way: take his or her original weekly rate, subtract the new rate, and take 60% of the difference. In this example, this would play out as follows: $1000 – $400 = $600. $600 x 60% = $360 weekly partial disability rate.

Section 35 is available for up to 5 years, or 260 weeks.

It is important to note that his is a very general example, and many factors go in to determining Section 35.

The maximum partial disability rate, or max partial, is %75 of the employee’s Section 34 rate. So, if the temporary total disability rate under Section 34 were $600, the most the employee could receive on partial disability would be $600 x 75%, or $450 per week.

Finally, another caveat on the length of time someone can receive both Section 34 and 35 is that the total number of years of entitlement under these two sections cannot exceed 7 years. Even though Section 34 has a limit of 3 years, and Section 35 has a limit of 5, the injured employee cannot get more than 7 years between the two sections. So, if the injured employee received all 3 years of Section 34, he or she would only be entitled to 4 additional years under Section 35.

Finally, Section 34A is permanent and total disability. If an injured employee were found to be unable to engage in any employment on a permanent basis, they could be entitled to Section 34A, which pays 66% of the gross, pre-injury wages. If approved, then the injured employee could remain on Section 34A for the rest of their life. There is no time limit.

See our Frequently Asked Questions page for additional information.

You’ve sustained an injury on the job causing you to go out of work. You are currently receiving workers’ compensation benefits. You’ve been receiving medical treatment, through workers’ compensation, which has been slow. Both you and your doctor feel that you are unable to return to work. However, you’re employer begins contacting you about returning to work.

These situations are quite common, but unfortunately, there is no one single correct answer. Every injury is different. Every Employee is different. Every doctor is different. And, most importantly, every Employer is different. There is simply no way to know exactly how any given Employer is going to react under the circumstances.

There are, however, some practical guidelines that may help in these scenarios.

The first question to ask is whether or not the injured employee feels he or she is ready to return to work. If the Employee believes they are ok to return, then perhaps it is time. If so, then the injured employee should discuss the matter with his or her doctor. This will give them the opportunity to discuss his or her present state, any ongoing symptoms, etc. The doctor may agree that the employee can return to work. In situations such as this, we generally advise the Employee to go back and give it a try. The doctor may also release the Employee to return to work, but with certain restrictions, such as “no overhead lifting.” Either way, it always looks good for an Employee to give it a try.

We also remind them of what is known as the “28-day rule.” M.G.L. Chapter 152, Section 8(2)(c) provides that if an injured Employee goes out on comp, subsequently returns to work, and then is forced to go back out of work within 28 days of his/her return, then the workers’ compensation benefits must be reinstated.

If, however, the Employee feels that he or she is still unable to return to work, and the Employer keeps badgering them about coming back, the situation gets a little more complex. Here is where there isn’t any one piece of advice that works in every situation. We generally advise the clients to try and be as cooperative as possible during this process. This can mean simple things such as returning their phone calls. If the case has to proceed in litigation, it always pays dividends to be able to show that the Employee was cooperative.

Sometimes, Employers can get pushy and insist on a decision within a certain time frame. Though all situations are different, we generally advise the Employee to explain to his or her Employer that they must discuss any return to work with their doctor.

Many times, situations like this inevitably lead to the Insurer/Employer taking action to terminate the Employee’s benefits. If this happens, it is all the more reason to have been in close contact with your attorney throughout this process.

The importance of contacting an experienced workers’ compensation attorney as early as possible following a work injury is essential. As discussed above, often times Employers and Workers’ Comp Insurers will really come on strong with Employees about getting them back to work. No situation is the same. Otherwise, advising clients would be a much easier process. So, having an experienced attorney to guide you through this difficult time is invaluable.

At Troupe Law Office, we have over 40 years of experience in this field. Please visit our web site at https://www.troupelawoffice.com for more information. Or, call us at (978) 531-7401. We offer free consultations for all cases.

This is a very common scenario. Many times, a public Employee who sustains a work-related injury is entitled to a “Disability Pension” in addition to workers’ compensation benefits under M.G.L. Chapter 152.

A “Public” employee works for a City, Town, State or Municipality. These “Public” employers have pension systems in place, for the benefit of the their employees. These pension systems more often than not, substitute Social Security, although, there are circumstances in which the Employee can receive both. These systems often have pensions for injuries that occur both in the course of employment, such as a slip and fall at work, as well as non-work related injuries, such as if the employee were involved in a car accident on his or her own time.

While every pension system is different, almost all pensions based on a work-related disability are offset when the Employee is receiving workers’ comp benefits for the same injury. What that means is that the receipt of a weekly workers’ comp check will likely reduce that employee’s disability pension.

For example, if a lineman for a city’s electric department fell from a ladder and sustained a career ending injury to his leg, he would be entitled to both workers’ compensation, and, because he was a public employee, a disability pension. He could collect a weekly workers’ comp check, as well as a monthly disability pension. However, his pension will, in all likelihood, be reduced as a result.

These pensions based on a “work related” injury are known as Accidental Disability Retirement, or ADR. For an employee to get ADR, three criteria must be satisfied: 1) The Employee must be mentally or physically incapable of performing the essential duties of his/her job, 2) The disability must likely be permanent, and 3) The disability must be related to the injury at work.

As mentioned above, if the injured employee is collecting weekly workers’ compensation benefits, and also gets approved for ADR through his employer, the pension will most likely be reduced. In “offset situations” such as these, many times it is in the Employee’s best interest to settle his or her workers’ compensation case. This will, in most circumstances, allow the employee to receive money from the settlement of the workers’ compensation case, and eliminate the offset against his/her pension, thus allowing the employee to receive their pension at the full rate.

Settling a workers’ comp case pursuant to M.G.L. Chapter 152, Section 48, under these circumstances, requires some very careful planning on the part of the Employee’s attorney. It also requires somewhat of a negotiation with the Employer’s Retirement Board, and this generally require a payback to the retirement board. Though this amount varies, most retirement boards accept between 15% and 20% of the gross settlement as a buy back, and as a result, allow the employee to collect the ADR pension in full.

As mentioned above, disability pensions can be different depending on the employer in question. However, it is more probably than not that such pensions will likely have an “offset provision” if the employee is also entitled to workers’ comp.

Situations that involves entitlement to both workers’ compensation and “disability pension” are highly complex. Though most situations generally go down a certain path, there is a fairly large degree of leeway involved. Thus, it is essential to have an attorney who is experienced in these matters, to ensure that your rights are protected.

At Troupe Law Office, we have over 40 years of experience in these fields. Please visit our web site at https://www.troupelawoffice.com for more information. Or, call us at (978) 531-7401. We offer free consultations for all cases.

This panel deals with a very important topic under the Massachusetts Workers’ Comp Law. M.G.L. Chapter 152 provides only a limited amount of benefits to an injured worker. However, it is important for any practitioner of Workers’ Comp law, to familiarize themselves with the various ways in which these benefits can be increased or maximized as much as possible. Some common examples are concurrent employment, prevailing wage claims, Section 35B, etc.

Joining him on this panel were two Judges at the Department of Industrial Accidents: Hon. David G. Braithwaite, and Hon. William C. Harpin. Also on the panel were two experienced Workers’ Compensation practitioners: Alan S. Pierce, Esq., and Mark H. Likoff, Esq.

It is very important to contact an attorney specializing in workers’ compensation law as soon as possible following a work injury. Furthermore, even if you are presently receiving Workers Compensation benefits, and everything appears to be running smoothly, it is still quite important to speak with an experienced workers comp attorney. This is because there are a number of obscure areas of the Workers Comp Statute that are designed to enhance benefits to the injured worker. Generally, insurance companies will not bring these sections up on their own. You want someone to guide you to make sure that you are receiving the highest benefit possible under the circumstances.

At Troupe Law Office, we concentrate our practice in the area of workers’ compensation law in Massachusetts, and we have over 40 years of experience in this field. Our attorneys have lectured frequently on the wide range of topics that are often overlooked. Call us any time for a free consultation of your case at (978) 531-7401. Or, visit our website at https://www.troupelawoffice.com.

This is one of the most frequently asked questions we are asked when interviewing potential clients.  Unfortunately, it is also one of the most difficult questions to answer.

People who are injured or have a medical condition that makes them unable to work for a living are potentially eligible for Social Security Disability (SSD) benefits. To qualify, first, the individual must have worked under the Social Security System for a requisite period of time.  This is called having sufficient “quarters” to qualify for SSD.  For most people, you must have 40 quarters to qualify.  So, If you have the sufficient quarters, you could be eligible to receive SSD.

The next step is demonstrating that your disabling condition occurred within 5 years of your “date last insured.”  To qualify for SSD, you must show that you became disabled within 5 years of when you last worked under the Social Security System.  For example, if a 30-year old individual has worked non stop since turning 18, he has worked for 12 years and thus has 48 quarters; enough to potentially qualify.  So, if this individual were to stop working, for whatever reason, at age 30, and then become totally disabled from a car accident at age 32, he would satisfy this requirement.  His “date last insured” would be when he stopped working at age 30, and his disability occurred at age 32; well within the 5-year requirement.

If, however, he was to be involved in the car accident at age 40, this would fall outside the 5-year requirement.  Thus, if he were completely and totally unable to work as a result of the accident, his claim would fail because of the 5-year requirement.

Finally, assuming the individual meets the “quarters” requirement, and is able to demonstrate a disabling condition within 5 years of his date last insured, the next, and perhaps most important, question turns on the individual’s medical condition and how it prevents them from gainful employment.

This, unfortunately, involves a highly subjective and personal analysis.  To be perfectly frank, it is quite difficult for even an experienced attorney to be able to estimate someone’s chances at getting approved for SSD.  This is because the multitude of SSD applications are processed and handled by an extremely wide range of individuals, with an even wider range of preferences.  Further, there are simply factors completely out of an attorney’s control depending upon the time they file, the region they’re located, and the Judge that may hear the case.  As such, any experienced Social Security attorney will tell you that it is next to impossible to say, with any degree of certainty, a person’s chances of getting approved.

There are, however, certain factors which are generally good indicators of a person’s chances, and are the ones most often used by Social Security Judges in their decisions.  First, is a person’s age.  Quite simply, the older the better.  The reasoning for this is perhaps because the older a person is, the less likely that person can go out and do some other type of job, within the physical or mental restrictions resultant from their injury or condition.  Thus, it is fair to state that a 58-year old individual with a severe back injury will be more likely to get approved than a 35-year old person with the same condition.

Another factor is a person’s educational background.  The less educated the person is, the more likely they are to get approved.  This is because a person with a higher level of education is, perhaps, more likely to be able to learn a new skill and get a new job.  While this is not necessarily true all of the time, and varies from person to person, as a general guideline, the less educated a person is, the more likely their chances at being found disabled under Social Security.

Finally, a person’s work history is an important factor.  If a person was doing physical, heavy work for 30 years, a shoulder injury that prevents them from lifting more than 10 pounds could render that person totally disabled from gainful employment.  However, the same injury for a person who did sedentary/desk work, may not prevent them from performing the duties of their job.

As you can see, determining someone’s chances of being approved is quite a difficult process.  And, while there are certain factors which may make a person more likely to get approved, even then, there is no guarantee.  But, if you are thinking of applying for Social Security Disability benefits, it is important to have an experienced attorney helping you along the way.  When Is The Right Time To Get A Workers’ Compensation Attorney? At Troupe Law Office, we have over 40 years of experience in this fields. Please visit our web site at https://www.troupelawoffice.com for more information. Or, call us at (978) 531-7401. We offer free consultations for all cases.

People who have sustained a work-related injury, which puts them out of work indefinitely, have immediate concerns.  The first, and probably most important question is, will I be able to sustain myself, financially, while I’m out of work.  This is precisely why Workers’ Compensation benefits exist; to provide financial, and medical, security while the injured employee remains out of work.

However, the period immediately following a work injury is an extremely confusing period.  In addition to dealing with the actual injury and resultant medical care, workers’ compensation insurance companies almost instinctively swarm the injured employee with paperwork, forms, etc.  This is because these insurance companies go to work immediately to try and defend themselves against a potential claim.  That is why it is imperative that any injured employee contact an experienced workers’ compensation attorney as soon as possible.

This does not mean, however, that an attorney will necessarily need to get involved right away.  Often times, filing an appearance too soon on a workers’ comp claim can cause more problems than it solves.

For example, under the MA Workers’ Comp law, M.G.L. Chapter 152, Section 8(1), there is what is known as the “pay without prejudice period.”  This is an initial period of time of up to 6 months, which can be extended to a full year from the date of injury.  During this period, an Insurer can commence disability payments to an injured Employee, without effecting its rights to defend against this claim.  The purpose of this pay without prejudice period is to help facilitate quicker payments to the employee, rather than after a lengthy investigation between the Insurer and Employer involved.

Should an Insurer commence the payment of benefits during this period, it is often the best practice for the Employee’s attorney to not file their appearance right away.

However, during this time period, it is crucial that the injured Employee and his/her attorney remain in close contact.  The Employee’s attorney must be informed of any potential developments early and often, so that he/she can advise the Employee appropriately.

So, the short answer to the question of when an injured Employee should retain an Attorney is:  as soon as possible.  The Insurance companies don’t wait.  Neither should the injured party.

At Troupe Law Office, we have over 40 years of experience in these fields. Please visit our web site at https://www.troupelawoffice.com for more information. Or, call us at (978) 531-7401. We offer free consultations for all cases.

In Part 1, we used an exmaple of someone in an “offset situation.” That individual was receiving both weekly workers’ comp benefits at the rate of $500 per week, and a monthly SSD check for $633.35. In this example, his full SSD rate, or PIA, was supposed to be much higher, at $1,200 per month. But, because of his receipt of weekly workers’ comp checks, he was in offset, and thus, his SSD benefit was reduced.

If this individual were to “settle” his workers’ comp case, he would cease to receive a weekly workers’ comp check. Rather, he would receive a final lump sum cash payment to close out/settle his case. The question then becomes, what effect does this settlement have on his ongoing Social Security Disability benefit.

If done properly, the employee’s attorney will take the necessary steps on the workers’ compensation settlement papers to ensure that any future offset going forward is either minimal, or eliminated completely. This is done by doing what is known as a “Sciarotta Allocation.” A Sciarotta Allocation is a process in which the settlement amount is prorated over the Employee’s life expectancy. The is done to create a small “compensation rate” post settlement. With as small a compensation rate as possible, this will serve to create a minimal offset against the employee’s SSD monthly benefit, going forward.

Any time an employee settles his Workers’ Compensation Case under M.G.L. Chapter 152, Section 48, his or her attorney must prepare a number of settlement documents; most notable is a DIA Form 117. The Form 117 essentially sums up the terms of the settlement, which the DIA Administrative Judge then reviews to determine if this settlement is in the best interest of the Employee.

A Sciarotta Allocation is done on the second page of the Form 117. At the top right hand corner of page 2 of this form, there is a spot to list the Employee’s “Compensation Rate.” If the Attorney were to list the Employee’s full weekly rate, then Social Security would continue to offset the Employee based on this rate. This would, in turn, keep that individual in the same offset situation as they were pre-settlement. You do not want to do this.

As a result of the holding in Sciarotta v. Bowen, practitioners are allowed to take the settlement amount and prorate it over the employee’s life expectancy. Note, there are various sources of life expectancy figures. There is a fair degree of leeway in which figure is used, as most charts are rather consistent in their life expectancy figures. Once you determine the employee’s life expectancy figure, you would simply take the gross lump sum amount and divide it by their life expectancy figure (in weeks), to get a weekly compensation rate post settlement. This lower figure will then be used on page 2 as “compensation rate” figure.

There is one final step, however. Recent practices at the Department of Industrial Accidents and the Social Security Administration require an explanation of how the attorney arrived at their Sciarotta rate. This is done in the narrative portion of the lump sum papers. All that is required is a sentence or two explaining which life expectancy figure was used, and that the Employee’s compensation rate has been prorated pursuant to the holding in Sciarotta v. Bowen.

Referring to our example above, let’s assume that this employee was 45 at the time of the settlement and were to settle his case for $100,000 (gross). According to one life expectancy chart, this individual would have a remaining life expectancy of 33.33 years, or 1,733.16 weeks. You would then divide the gross amount (100,000) by the weekly life expectancy (1,733.16). This would result in a weekly “prorated compensation rate” of $57.70 per week.

So, as a result of this settlement and the Sciarotta allocation, post settlement, this employee will no longer be offset at the rate of $500 per week, as he was pre-settlement. Rather, he will be offset at the much lower rate of $57.70 per week, or $250.03 per month.

Recall from Part 1 of this blog, the 80% ACE figure sets the limit of what one can receive in workers’ comp and SSD. In our example, this figure was $2,800 per month. His full SSD rate is $1,200 per month, plus his new monthly compensation rate of $250.03. Adding the two gives us $1,450.03. This figure is well within the 80% ACE figure/cap. Thus, this employee can receive his full PIA rate of $1,200 per month and is no longer in any offset.

As mentioned before, the interplay between Workers’ Compensation and Social Security Disability can be somewhat complex. It is important to have an attorney who is experienced in these areas, to ensure that you rights are protected. At Troupe Law Office, we have over 40 years of experience in these fields. Please visit our web site at https://www.troupelawoffice.com for more information. Or, call us at (978) 531-7401. We offer free consultations for all cases.

However, depending upon certain factors, one may not be able to collect his or her Social Security Disability benefit in full. This is because the receipt of weekly workers’ compensation benefits under M.G.L. Chapter 152 can create an “offset” on Social Security Disability (SSD) benefits. In other words, workers comp benefits could cut in to and thereby reduce one’s social security disability benefits. Sometimes, it can eliminate Social Security Disability altogether.

To determine whether or not someone is in an offset situation, you must first determine that person’s high year of income. This is done one of two ways. Either, you would take that persons highest year of income within the 5 years prior to being injured, or you would take the average of his income within the past 20 years; whichever is highest. Let’s say, for example, that an individual were injured in 2011, and between 2006 and 2010, his highest year of income was $42,000

The next step would be do determine 80% of his average current earnings. This is commonly known as the “80% ACE” figure. This is done by simply taking his high year of income ($42,000), and dividing by 12 to get a monthly amount. In this example, this would be $3,500. You would then take 80% of this amount, which would equal $2,800. This is his 80% ACE figure.

The significance of this 80% ACE figure is that it sets the limit on what this individual can receive in both workers’ compensation benefits and social security disability benefits. The two cannot exceed this figure. Once you determine both the individuals high year of income and their 80% ACE figure, it is quite easy to determine if they are in an offset situation or not.

So, in our example, let’s say this individual were receiving weekly workers’ compensation benefits at the rate of $500 per week. This would equal $2,166.65 per month. As mentioned above, the 80% figure is the most he can receive from both benefits. So, to figure out the most he could receive under SSD, you would simply subtract his workers’ comp monthly rate from the 80% ACE cap ($2,800 – $2,166.65). So, the most he could receive from Social Security Disability is $633.35 (even though the person’s full Social Security Disability benefit could have been substantially higher had they not been collecting Workers’ Comp).

If this individual’s full Social Security Disability rate (also known as his Primary Insurance Amount /PIA) were to be, for example, $1,200 per month, than this individual would be in offset. That is because he is not collecting his full PIA. His receipt of workers’ compensation is offsetting and, therefore, reducing his SSD rate.

In some instances, depending upon the circumstances, the individual may be in complete offset. In our example above, if the individual were collecting a weekly comp check of $700 per week, or $3,033.33 per month, this monthly amount would already exceed his 80% ACE figure. He would therefore just collect his workers’ comp benefit in full, and receive nothing from Social Security Disability. This person is in complete offset.

Individuals with higher incomes generally do not have this problem. That is because there 80% ACE figure can be much higher. So, if an individual’s highest year of income were $125,000 per year, this would yield an 80% ACE figure of $8,333.33. Even if that individual were to collect a weekly workers’ comp check at the maximum weekly amount of $1256.47, or $5,444.70 per month, the difference would be ($8,333.33 – $5,444.70) = $2,888.63. Chances are, this amount could be higher than his full PIA, and therefore, he would be able to collect his full PIA, free of offset.

What Then Happens If You Settle Your Workers’ Comp Case? – Please continue to Part 2 of this Blog.

As you can see, the interplay between Workers’ Compensation and Social Security Disability can be somewhat complex. It is important to have an attorney who is experienced in these areas, to ensure that you rights are protected. At Troupe Law Office, we have over 40 years of experience in these fields. Please visit our web site at https://www.troupelawoffice.com for more information. Or, call us at (978) 531-7401. We offer free consultations for all cases.

This is one of the most common questions asked of attorneys practicing in workers compensation, or any personal injury type of law. For someone who has sustained a work-related injury, with potentially career ending consequences, this is often times their primary concern. Are they going to be able to get enough money to support themselves going forward?

Section 48 of Chapter 152 provides that the parties to a workers’ compensation case may enter into an agreement to “settle” the claim by the payment of a lump sum amount. In other words, the parties can agree to “close out” the case by a payment of a certain sum of money to the Employee. As mentioned above, the main question on the Employee’s mind is usually, “how much am i going to get?”.

Unlike personal injury cases like a motor vehicle accident, or a products liability case, workers’ compensation cases are valued in a very specific way. The two main components to determining the monetary value of a workers compensation case are 1) the Employee’s compensation rate, and 2) the amount of time the Employee could remain on workers comp weekly benefits. With some limited exceptions, these are often the only two factors that will go into determining a settlement amount.

To explain further, a person who is disabled from working is entitled to receive a weekly workers comp check so long as they remain disabled, in some degree, from their previous job. The weekly rate is determined by the Employee’s pre-injury wages. This amount is usually set in stone, and subject to very little debate. Sections 34, 35, and 34A of Chapter 152 set the amount of time the injured Employee could potentially collect a weekly check. Determining the value of a case involves figuring out the remaining exposure to the Insurer. This is simply the result of multiplying the Employee’s compensation rate by the amount of time he/she has left on weekly benefits.

For example, if an Employee were partially disabled collecting Section 35 benefits at the rate of $500 per week, and had about 3 years left of potential weekly benefits, the remaining exposure to the insurance company is $78,000 (500 x 52 weeks x 3 years). If that same person were 46 years old, and was determined to be permanently and totally disabled (Section 34A), that person could potentially collect workers’ compensation for the rest of their lives. Based on a life expectancy chart, this Employee has a remaining “life expectancy” of 32.45 years, or 1,687.4 weeks. Thus, the remaining exposure to the Insurer, in this particular example, is $843,700 (500 x 1,687.4). This assumes the same compensation rate of $500/week. (Please note: There are numerous sources of life expectancy figures, which all differ. This particular figure is being used for and as an example)

What about pain and suffering? What about all the stress I’ve endured? What about all the hassle the Insurer put me through? These are very common questions asked of Employee’s attorneys. Unfortunately, these factors do not get factored into a settlement. To do so would add a subjective component to any case. There are no sections under Chapter 152 which provide enhanced benefits based on the severity of the injury, or the incidental side effects of a work injury. Therefore, these aspects of an injury do not get factored in. A person who breaks their leg on the job may have a case that is valued less than someone who sprains their wrist. It all depends on their particular compensation rates, and the amount of time they could potentially remain on weekly benefits.

“But I had a friend who got much more money and he/she had the same injury.” This is another common “question” asked of attorneys. The bottom line is that every case is unique and specific. Though cases may seem similar at first glance, there are numerous factors, specific to each case, which may affect the potential “value” of a workers’ comp case. More often than not, the friends case is quite different than the case at issue.

There are other factors which may increase or decrease the potential remaining exposure. To ensure that a case is properly valued, from a monetary standpoint, it is crucial that you have an experienced workers comp attorney. Please visit our web site at https://www.troupelawoffice.com for more information. Or, call us at (978) 531-7401. We offer free consultations for all cases. We look forward to working with you.

You’ve been injured at work. Your doctor says you’re disabled from working. You need to file a claim for workers’ comp benefits, and you need certain information to do so. Unfortunately, your Employer is refusing to give you the information you need. Though the Massachusetts Workers’ Comp law requires information of this type to be readily available, some Employers simply ignore these requirements.

Or, say you’ve been injured at work, and your Employer has sent you to their clinic to begin treatment. Many Employers have a “preferred medical provider” that they work with. In situations like these, if an employee is injured, the Employer will often take steps to “steer” the employee towards their preferred clinic. They may assure the employee that this is the quickest way to get treatment, and that they won’t be responsible for out of pocket costs. However, the problem is that this provider has both the Employee’s, as well as the Employer’s interests in mind. As a result, many Employees soon learn, or soon suspect that their doctor is not 100% on their side.

Where there are others dictating the way things are handled during these early stages of a workers’ comp case, often times things gets mishandled, or mismanaged. And often time, the injured employee suffers as a result. Furthermore, fixing the damage caused during these initial periods becomes one more hurdle for the injured worker to overcome.

Situations like this, unfortunately, are increasingly common. To be fair, many Employers are quite cooperative. This makes things much easier. However, some are not, and this can make things quite difficult.

It is important to contact an attorney specializing in workers’ compensation law as soon as possible following a work injury. They can help guide you during these crucial early stages. Situations like the ones described above are unique and can occur in a countless number of different ways and manners. There are no concrete answers. What might the correct course of action involving one Employee or Employer, might be the wrong course of action involving different parties.

At Troupe Law Office, we concentrate our practice in the area of workers’ compensation law in Massachusetts, and we have over 40 years of experience in this field. Call us any time for a free consultation of your case at (978) 531-7401. Or, visit our website at https://www.troupelawoffice.com.

M.G.L. chapter 152, Section 27, pertains to situations involving an injury caused by the “serious and wilful misconduct” of the Employee. In these situations, if it is determined that the injury was, in fact, caused by the serious and wilful misconduct of the employee, no compensations shall be awarded. Section 27 is, in many ways, the counterpart to Section 28, which deals with serious and wilful misconduct of the Employer.

Historically, both sections are rarely applied because of the high thresholds in making a determination/ruling that the conduct in question rises to the level of “serious and wilful.” In many ways, the conduct must rise above mere negligence, or even gross negligence, and must be almost to the level of quasi-criminal in nature. In other words, the conduct in question usually must be quite severe to be considered “serious and wilful” per these Sections.

In this most recent case, the Administrative Judge, both at conference and hearing, awarded the Employee Section 34 benefits. After hearing, the Insurer appealed to the Reviewing Board, arguing that the Employee’s serious and wilful misconduct cause his injury and, as a result, his compensation should be barred per the provisions of Section 27. The facts show that the Employee suffered a number of industrial accidents over the years, with injuries in 1991, 1995, 1996, and 2001. The Employee returned to work around 2004, as a laborer, going against the advice of several doctors. Upon his return to work, he was taking methadone and percocet daily to control his pain, and make it through the work day. He was injured again in April of 2012, for which this present claim was based.

The Insurer’s position was that because he went against the advice of his doctors in returning to work in 2004, this constituted “serious and wilful” misconduct on his part. They further argued that because he had actual knowledge of his severe and permanent back injury, returning to work as a laborer “created a substantial probability” that he would suffer a further disabling back injury. Both the Administrative Judge at hearing, and the Reviewing Board rejected this argument.

In their decision, the Reviewing Board notes that “A plain reading of the language requires that the alleged misconduct must be the cause of the injury.” (Emphasis added). In this case, the employee was injured when a co-worker dropped a piece of staging onto his back. It had nothing to do with the Employee’s prior injuries, nor his working for several years against the advice of doctors. This was an unfortunate accident of being in the wrong place at the wrong time. “Where the employee’s serious and wilful misconduct at the time of the injury is the crucial element under section 27, an injury that is not proximately caused by his alleged misconduct does not operate to bar the employee’s claim.”

Situations involving both Section 27 and Section 28 are somewhat rare. However, they do come up on occasion. Situations like these are very fact specific. An experienced workers’ compensation attorney is essential in determining the viability of any such claims.

Workers’ compensation cases, in general, can be quite complex. If you are an injured employee with a workers’ compensation matter, having an experienced workers’ compensation attorney, who is knowledgeable in this area of the law, as well as the practices at the Department of Industrial Accidents, is essential in assuring that your rights are protected.

At Troupe Law Office, we concentrate our practice in the area of workers’ compensation law in Massachusetts, and have over 40 years of experience. Call us any time for a free consultation of your case.

This year, he was part of the panel discussing the ongoing paradox of dealing with chronic pain. Members of this panel included two Administrative Judges from the Department of Industrial Accidents (The Honorable Maureen McManus, and The Honorable Roger Lewenberg), one Administrative Law Judge from the DIA (The Honorable William Harpin), Diane Neelon, also from the DIA, as well as Attorney Edward Moriarty. Guest speakers included a pain specialist, Dr. David DiBenedetto, MD.

Dr. DiBenedetto gave a general background about the physiology associated with chronic pain, as well as treatment plans, guidelines, and goals. Attorney Adam Troupe then presented the considerations of the Employee’s attorney when dealing with cases involving chronic pain, with particular focus on the injured employee and how they may respond in these situations. Attorney Moriarty addressed the Insurer’s point of view, and the Judges then expressed their concerns from a Judicial perspective.

Workers’ Compensation cases involving chronic pain are quite common. Often, following a severe injury, one continues to suffer from daily pain for which they seek treatment. Quite often, treatment will consist solely of narcotic pain medications. In a significant number of cases, this type of treatment works quite well. However, in an equally significant number of cases, the injured worker can develop a dependence to these substances. Situations such as these can have drastic results.

An insurance company’s approach to dealing with these issues can range from full cooperation to flat out refusing to pay for any further medications. In situations where the injured employee has developed a dependance, this can result in an extremely stressful situation, as well as a several financial burden.

If you have been injured at work and are suffering from chronic pain, it is important that you seek an experienced workers’ compensation attorney as soon as possible. An experienced attorney can provide proper guidance in these matters.

At Troupe Law Office, we concentrate our practice in the area of workers’ compensation law in Massachusetts, and have over 40 years of experience. Call us any time for a free consultation of your case.

In this most recent case, Jane Sullivan v. Centrus Premier Home Care, the Insurer appealed the decision of the Administrative Judge after Hearing. One of the points raised on appeal was that the requirements set for in Chapter 152 § 1(7A) were not met with respect to disability after 9/23/09, which was the date of the § 11A Impartial examination. Section 1(7A) states, in part, that where a work injury combines with a pre-existing condition, not compensable under the MA Workers’ Comp Act, the resultant condition shall only be compensable to the extent that the compensable/work-related injury remains “a major, but not necessarily predominant cause of disability and need for treatment.”

In laymen’s terms, § 1(7A) states that where a work injury combines with a pre-existing, non-work-related injury, you must show that the work injury remains “a major, but not necessarily predominant cause” of the resultant condition. The phrase “a major, but not necessarily predominant,” has thus become subject to extensive interpretation by the Judges at the DIA, as well as the Reviewing Board.

So, the question becomes, what constitutes “a major cause?” While every case is unique and presents an almost endless array of possibilities of interpretation, the Reviewing Board, in the present case, gives a nice summary of the well established case law pertaining to this question.

In the present case, Dr. Anas, the Board Impartial physician opined that the employee’s disability was 50% related to her underlying, pre-existing, non-work-related conditions, and the remaining 50% was attributable to her injury at work. So does a work injury which contributes only 50% to a resultant disability rise above the standard set forth in §1(7A)? Here, the Reviewing Board ruled that 50% does, in fact, satisfy the “a major” requirement of § 1(7A). Citing Goodwin’s Case, 82 Mass.App.Ct., 642 (2012), which stated that “a major cause need not be more than fifty percent.” (internal citations omitted).

Going further, they also cite a number of other cases. Durfee v. Baldwin Crain and Equip, 20 Mass. Workers’ Comp., Rep. 163 (2006), states, “In fact, a smaller percentage is capable of satisfying the “a major” standard.” Lesione v. Corcoran Mgt. Co., 22 Mass. Workers’ Comp. Rep. 153 (2008), states that “medical opinion that work injury was forty percent of cause satisfied” the 1(7A) standard. Finally, Abad v. Stacy’s PITA Chips Co., 25 Mass Workers’ Comp. Rep. 173 (2011), “in the proper circumstances a twenty percent contribution of a work injury to the disabling condition could satisfy the “a major” standard.”

As mentioned above, every case presents a unique set of facts and every case will likely give rise to their own unique interpretation of the 1(7A) standard. However, this case gives a good summary of some significant prior decisions in making the determination of what percentage a work injury must contribute to an underlying disability, in order to get beyond the 1(7A) standard.

Pre-existing conditions play a role in a large portion of the cases we, at the Troupe Law Office, handle on a daily basis. If you have sustained an injury at work, of any kind, it is crucial that you speak with an experienced workers’ compensation attorney as soon as possible. Please visit our web site at https://www.troupelawoffice.com for more information. Or, call us at (978) 531-7401, or email at atroupe@mac.com. We offer free consultations for all cases. We look forward to working with you.

Pursuant to Section 11A of the Workers’ Compensation Act, the employee was examined by an impartial physician. After the hearing, the Judge ultimately adopted the opinion of the impartial physician, who found that the employee was restricted “to work which requires her to be able to change positions frequently and not require sitting of more than 30 minutes at a time, no lifting more than 10 pounds and no more than 4 hours a day.” The Judge was also “persuaded by the employee’s testimony” concerning her subjective complaints of pain. In her decision, the Administrative Judge ultimately awarded the Employee ongoing total disability benefits.

The Self-Insurer appealed the decision on 3 grounds: 1) that the expert medical evidence failed to support a causal relationship between the employee’s work injury and her disability, 2) the judge’s finding that the employee is totally disabled was not supported by the evidence and reasonable inferences therefrom, and 3) the judge failed to consider all of its evidence.

The Reviewing Board rejected the Self-insurers’ arguments. They found that the Judge correctly adopted the opinion of the 11A Impartial Physician and that the Judge acted within her discretion in giving “decisive weight” to the Employee’s subjective complaints of pain. The Reviewing Board also found “harmless error” in the Judge’s failure to list or consider the medical evidence it submitted at conference, which was part of the record. Citing Driscoll v. Town of Framingham, (February 25, 2014)(citation omitted), “misinterpretation of medical opinion rendered harmless when viewed in context of other findings.” The evidence in question, actually supported the Employee’s claim, and therefore, the Reviewing Board found this to be a harmless error.

As such, the favorable decision of the Administrative Judge was affirmed.

Registered Nurses and other nursing staff are among the most common clients we encounter at the Troupe Law Office, as is the mechanism of injury that occurred in this case. Injuries of such can often be career ending, given the physical demands in the nursing profession.

If you have sustained an injury at work, of any kind, it is crucial that you speak with an experienced workers’ compensation attorney as soon as possible. Please visit our web site at https://www.troupelawoffice.com for more information. Or, call us at (978) 531-7401, or email at atroupe@mac.com. We offer free consultations for all cases. We look forward to working with you.