Workers Compensation is a Wage Replacement System. It is a “no fault” law and it’s not designed to compensate for Pain & Suffering. It is designed merely to replace wages. The statute of limitation for Workers Compensation is 4 years unless there is notice. Once an employee is injured, he must be out of work for 5 days in order to accrue a claim. The employer has 7 days to file the First Report of Injuries to the insurer. Failure to do so, will result in sanctions under section 14, especially if the employer does not give the employee insurer’s information. The insurer has 14 days to accept, deny, or pay without prejudice. "Accept" means that the employer agrees the employee got hurt on the job and is disabled as a result. Employer will be responsible for life for all medical bills that are reasonable, necessary, and related to the work accident. If the employer does not believe that the employee is disabled or got hurt on the job, the claim will be denied. If the claim is denied, the employee must file a Form 110 signed by him and his attorney. All competent medical records showing it was work related and his disability status must be attached along with the Form 110. The attorney should send it with return and receipt (certified mail) to employer and to the insurer. (The form also gets filed in the Division of Dispute Resolution at the DIA.) Please note that if the medical records are not sufficient the Conciliator (defined below) will send them back. However, the employer must wait for 30 days to pass prior to filing a 110 claim. If the employee goes back to work before 21 days, the employee’s pay will not be retroactive. A claim may also be paid without prejudice, which means the employer will not yet deny or accept the claim, but will wait and see. Paying does not necessarily mean accepting liability. Payment without prejudice will last for 6 months and no claims can be made. However, if employer voluntarily pays beyond the 6 months period without the employee’s consent, the employer automatically accepts liability and becomes responsible for any medical bills that are reasonable, necessary and related to the work accident.
Three Levels Of Litigation: Assuming the claim was denied and the Form 110 was filed appropriately, there are three levels of litigation in Worker Compensation. The employee can bring a claim for weekly benefits or just to pay for his medical bills that are resonable, necessary and related under section 30. Also, the employer may file a claim to discontinue, disqualify, or recoup payment. The first level is the Conciliation stage. The most important function of the conciliator is he acts practically as a gatekeeper. Conciliation is similar to mediation and the conciliator does not have to be an attorney. He does NOT have the power to decide if the employee should or should not receive compensation. However, the conciliator can prevent or allow the claim to go to the next stage, the Conference level. The conciliator decides whether there is enough competent medical evidence that the employee suffered an injury out of or in the course of his employment. If the conciliator decides that there is not enough medical records, the employee should not withdraw the claim. The attorney should ask the conciliator to hold the claim for 30 days. Lastly, the conciliator may make recommendations in which the conference judge can look at but is not bound to them.
Assuming the conciliator decides that the medical records are sufficient, the next level is he Conference Stage, which usually last around 15 minutes. Prior to conference, the employee must file a Temporary Conference Memo (Form 140) which is submitted to the conference judge. At the conference, only the attorneys and the judge are present. It’s an informal procedure and there is no FRE allowed. Here, the attorneys introduce medical records and argue their case. This stage used to entail a dual doctor scenario, however, it is no longer in existence after the1991 amendment. It was replace with sec.11a, Impartial Medical Examiner Report. This report is prima facie and will be the only report in which the judge will consider at the hearing which it the last level of litigation. Unlike the conciliator, the judge can decide if the employee should be on compensation. The judge at the Conference level has exclusive jurisdiction and will be the same judge at the hearing. After the conference, the parties will get a decision by mail. Either party has 14 days to appeal and file a Form 121 with a copy of the order. Failure to appeal on time, the order will be deemed accepted. After the appeal, the court must have a hearing within 28 days(ya right!).
Please note that if there is a dispute on disability, then the parties would have requested an Impartial Medical Exam to evaluate the employee. The attorney should not waive the right to depose the Impartial on the Form 110. If both attorney’s waive section 11a, it is because disability is not an issue, however, the disability that arose out of or in the course of employee is an issue. The impartial report must be prepared one week before trial. Prior to trial, the employee’s attorney should request any production of documents in order to be prepared and not surprised. The request must be submitted with a letter of relevancy and supplemented seasonably. If the other side does not submit the production of documents in 5 days (452 CMR 1.12 sec.3), they will be subject to fines and request the documents to be inadmissible do to unfair surprise.
The last level of litigation is the Hearing stage. Here Federal Rules of Evidence apply and witnesses (experts, vocation or laymen) may testify. Also, Impartial may be deposed as long as the request for permission was requested on Form 140. The Impartial report needs to address the following criteria: 1) Whether liability exists. 2) Whether liability is total or partial, and permanent or temporarily. 3) Whether there is a causal relationship, or whether or not within a reasonable degree of medical certainty such disability is the major or predominant contributor to a work related personal injury. 4) Whether the end result has been reached. 5) And if so, whether there is a permanent impairment of loss of function. The report does not address all of these issues, the attorney should file a motion that the report is inadequate as matter of law and additional medicals should be introduced due to the complexity.
