Procedure For Handling Cases at The Department of Industrial Accidents
If you have been injured at work, your employer has the duty of reporting an injury which disables an employee either totally or partially for five (5) or more calendar days. The employer must report the injury within seven days of their knowledge that it has caused five (5) or more days of disability. Including weekends, that total period could take up to 14 days. The employer's first Report of Injury should be filed with the insurance company, the DIA and the employee. As a practical matter, the employee and the DIA rarely get copies. The insurer then has 14 days to investigate the case and take action. They must, within 14 days of receipt of the employer's first report of injury, either make a payment to the employee or notify the employee in writing that they are refusing to make payment. The insurer must also advise the employee as to why they are refusing to make payment and inform the employee of his rights to file a claim with the DIA.
There are penalties to both the employer and the insurer if they fail to follow these procedures. If the employee receives a notice that his claim is being denied, he may file a claim on Form 110 with the DIA. Medical documentation should be attached to the claim and it is advisable for employees at this point to obtain competent legal advice since the insurance company will be represented by counsel at all proceedings at the DIA. The employee cannot file a claim for benefits immediately. They must wait until he/she has been disabled 30 days. Claims made prior to 30 days will be returned as being premature.
After receiving an employee's claim for benefits, the DIA schedules the matter for an informal conciliation within two-three (2-3) weeks. At the conciliation, the employee and his or her attorney will be present along with a representative of the insurer. They will appear before a representative of the DIA, a conciliator, who unlike a judge, does not have the power to make a binding order against either party. The conciliator's goal is to try and narrow the issues, see where parties can agree on certain things and get the matter resolved without the need of formal proceedings before a judge. At conciliation, it is important to bring proofs of wages, pay stubs, medical reports, medical bills, etc. Most matters are not resolved at the informal stage and are sent on to an Administrative Judge for a formal conference. Within three to four (3-4) months following a conciliation, a conference is usually held before an Administrative Judge. Legal counsel is definitely recommended at this point since the insurer will be represented by an attorney. The proceedings before a judge are quite complex and formal and the paperwork is extensive. The judges have the right to make an Order that is binding upon the parties. Even if the insurer is dissatisfied with an Order requiring the payment of benefits, payment is required even if they have appealed. If the employee is dissatisfied, he/she can also appeal. If there are medical issues in dispute at the time of the Conference, and one or both of the parties appeal, you will be examined by a court-appointed "Impartial Medical Examiner" who will decide the issues in dispute such as whether you are disabled from work or whether your disability is causally related to work. An appeal by either party will result in the employee and the insurer coming before the same judge for a formal hearing within six to nine (6-9) months. At a hearing, testimony is taken under oath, whereas the initial conference is less formal.
Strict attention to appeal times must be given at the conference and hearing stage. Parties dissatisfied with action taken at a conference must file an appeal to request a hearing within 14 days of the conference order. A late appeal may disqualify the party from any further chance to pursue their claim. Following a hearing decision, the parties have 30 days to appeal to the Reviewing Board which is made up of three judges from the DIA. Further appellate review in the Appeals Court of the Commonwealth of Massachusetts is available although quite rare.