Workers' Compensation

Have you or a loved one been hurt on the job?

Zanni and Pesce Law Office have represented Massachusetts residents in workers' compensation claims. We handle claims involving on-the-job injuries such as:

Head injuries
Neck injuries
Back injuries
Shoulder injuries
Knee injuries
Repetitive stress injuries

We understand that this is physically, mentally, and/or finanically stressful time in your life. You need a lawyer who available to answer your questions and willing to fight for your rights.


Important: Workers' compensation cases are handled on a contingency basis. That means you pay no legal fees if we are not successful.


Select from each topic below to learn more about the laws!

As your attorneys, we would need to analyze to see if the injury is a prima facie case for Workman’s Compensation under Massachusetts General Law chapter 152. For a prima facie case, there are two requirements. First, the employee must suffer an injury as defined under section 1(7a) that arose out of or in the course of employment. Secondly, the person must be disabled as a result of the injury. Under section 1(4), the employee must show that the employer had control of his duties at the time of injury and the employee was injured during the furtherance of benefiting the employer.

There are two distinction of employee classes under chapter 152, section 18. The first distinction is an employee, which was discussed above, and the second distinctions are independent/subcontractors. Under section18, it states that the insurer (of general contractor) shall pay to such employees any compensation which would be payable to them under this chapter if the independent or subcontractors were insured.
The standard for compensation for preexisting medical condition under 1(7a), the employee has the burden to show that the injuries is the "major, although not necessarily the pre-dominant contributing factor to the present day disability".
The psychological standard is if an employee has physical injuries and psychological overlay, the psychological injury will be compensable if the employee can show a causal relationship/connection, however, in a chase where an employee has purely psychological injury, the employee has to show that his mental and emotional disability is through an event or series of events at work.
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.
Section 13 deals with attorney fees. It’s 20% if it’s on an acceptance bases. If unaccepted basis, attorney only receives 15%.

Section 28 is the standard of quasi-criminal nature. The employer must be more than gross negligence. His acts must be wanton or reckless disregard for human life. It must be “serious and will misconduct”. If the supervisor was notified that the law was being violated, the employer is on notice and has knowledge of the violation. The employee can show through employer’s malice intent.

Section 30 deals with medical bills/benefits. Payment will pay for life as long as they are R,N,R.

Section 34 is Temporary and Total Disability. One may collect up to 156 weeks and 60% of his gross average weekly wage (base on 52 work weeks which include overtime).The cap/maximum on WC is $876/week plus $6/child. Comp minimum is $116.

Section 35 is Temporary and Partial Disability. One may collect up to 260 weeks (5yrs) and injuries that are serious one may collect up to 10yrs. One can collect up to 75% of full compensation rate. However, one may get <75% but="" never="" more="" than="" 75="" of="" the="" 60="" comp="" rate="" --75="" --="">

Section 34a is Permanent and Total disability. This does not come an issue until sec. 34 is exhausted (156 weeks). Compensation will be 66.66% of the gross average weekly wage. It will not be prorated. Also, one can file a 34 claim if the person is definitely Permanent and Totally disabled.

Section 36 entails permanent and loss of function and Scar disfigurement. The scar must be on the face, hands, or neck. The scar must be on place where it’s uncovered in order to collect under this section. Copy of table are available in determining the value of scars. Scars are not evaluated until 6 months have passes. Attorney can not collect a fee on this section. The attorney must subtract the amount received under this section under the settlement and then take the 20% fee.

Section 65 involves a trust fund when the employer does no have workman’s comp insurance. Please note that employee, prior to employment, may opt out of Workers Compensation and request to follow common law which means if an accident occurs on the job then employee may bring civil action. Under sec. 65 the trust steps into the shoes of the employer as the insurer. Trust can stop employer from continuing it’s business and seek criminal action.

Section 66 relates the employee’s right to file a civil lawsuit if the employer does not have WC insurance. The employer, as an uninsured, waives any common law defenses and the judgement will be good for 20 years. Sec. 28 and Sec. 66 are the ways in which an employee can collect for Pain and Suffering. An attorney should pursue this claim not the trust fund because an attorney can collect 1/3 attorney’s fees.