Workers’ Compensation FAQs - Part 4

What If My Injury Was Caused By Another Person's Negligence?

If someone other than the employee, co-employee, or the employer, is at fault in causing the employee's injury, the worker or the workers' compensation insurance company may bring a suit against the negligent party (a so-called third party). If the employee or insurer receives monies in the third party action, the workers' compensation insurer has a right to be reimbursed for a portion of the benefits they had previously paid. Since, in a third party claim, an employee can seek recovery for all damages including pain and suffering, the third party recoveries are usually larger than the workers' compensation payments. Therefore, it is in the employee's best interest to pursue actions against the negligent third party, even though you may have to reimburse the workers' compensation insurer for some of the benefits paid.

If the employee brings a third party action against the negligent third party and the insurer receives a payback on their workers' compensation lien, the workers' compensation insurer must pay a proportionate share of the employee's third party legal fees. Some common types of third party suits brought by injured workers are claims against the general contractor for failure to maintain a safe work site; claims against asbestos manufacturers for injury caused by inhalation of asbestos products; a suit against the scaffolding manufacturing company who provided defective parts that caused a scaffolding collapse; a machinist who loses his fingers in a punch press and sues the manufacturer of the press alleging that the product was defective and lacked an adequate guard or warning, or an employee injured while operating a motor vehicle in the course of his/her employment.

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What Effect Does Receiving Social Security Disability (Ssdi) Have On My Workers' Compensation Benefits?

Another disability benefit available for employees injured and out of work for more than one year is social security disability. For more information on who qualifies for SSDI benefits and how you can apply for SSDI, please refer to our SSDI practice area page. It is important to note that any worker who is out of work for one year or who has a condition which will clearly lead to disability lasting more than twelve months should consider filing for social security disability.

There are certain coverage requirements which generally state that a worker must have had a fairly steady work history to qualify; but assuming you do qualify, social security disability could provide significant additional benefits to you and your family in addition to your workers' compensation benefits. There is no effect on your workers' compensation claim by filing for social security. Indeed, an award of social security disability benefits may even help your workers' compensation claim. Social security disability could pay an injured worker and his family up to an additional one thousand five hundred dollars ($2,400.00) per month, depending on the amount of the worker's pre-injury wages. In addition to monthly money, social security can also provide the worker with Medicare coverage after the second year of social security entitlement. This may be important since many workers who are on workers' compensation have their health care insurance canceled after being out of work for a period of time.

Many people who file for social security disability are not initially approved, however, our office has an extremely good record of winning social security disability appeals. There is no legal fee unless the appeal is successful.

If you are approved for Social Security Disability (SSDI) benefits, and you are receiving weekly workers’ compensation benefits, the Social Security Administration may be entitled to a reduction, or offset, of your monthly SSDI benefit. Generally, an injured worker can collect a combination of workers’ compensation and SSDI benefits up to a maximum of eighty percent (80%) of your Average Current Earnings (ACE). Your Average Current Earnings is the maximum gross wages you earned in any one tax year in the five (5) years before you were injured at work. For example, if your Average Current Earnings is $50,000.00, you cannot receive more than $40,000.00 per year, or $3,333.33 per month, in combined workers’ compensation and Social Security Disability (SSDI) benefits. Thus, if you are receiving $30,000.00 per year ($2,500.00 per month) in temporary total disability workers’ compensation benefits, you are entitled to only $833.33 per month (or $10,000.00 per year) in Social Security Disability (SSDI) benefits.

In certain circumstances where you have been approved for SSDI benefits and remain on weekly Massachusetts’ workers’ compensation benefits, it may be in your best financial interest to have an attorney negotiate a lump sum settlement of your Massachusetts workers' compensation benefits. The Social Security Administration allows an injured worker to pro rate the proceeds from your workers' compensation lump sum settlement over your life expectancy, which in most situations allows you to collect the maximum amount of money your would have been entitled to in Social Security Disability (SSDI) benefits if not for the reduction, or offset, due to the receipt of workers’ compensation benefits.

Determining whether a lump sum settlement is in your best interest can be a very complicated and complex analysis. You should contact our Boston workers’ compensation attorneys immediately to find out whether accepting a lump sum settlement is in your best interest.

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I Heard That Many Employees Lose Their Health Insurance While On Workers' Compensation, Isn't This Illegal?

The simple answer to that is "no". While it seems unfair, there is no state or federal law requiring employers to continue health insurance to injured workers while they are on workers' compensation. Unless a union contract or employee handbook requires continued coverage, the employer is free to cancel insurance for people who are not working, even those out on workers' compensation.

There is, however, some limited protection in the Federal COBRA Law. This law states that if an employee has his health insurance canceled by the employer, the employee can elect to continue coverage for up to eighteen months, but the employee must pay the premium. These premiums can be extremely burdensome, sometimes six to eight hundred dollars ($600.00 to $800.00) per month for a family plan.

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Can My Job Be Filled Or Can I Be Fired While Out On Workers' Compensation?

This question arises quite frequently. Employers, in order to keep their business running in an efficient manner, must fill injured employee's job positions while they are out for prolonged periods of time. This, in some cases, results in employer's canceling the group insurance benefits and terminating the worker's employment. Unless this violates some collective bargaining agreement with your union or employee handbook, there is little that can be done to remedy loss of insurance or loss of job other than your rights for re-employment as mentioned earlier

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Can I Collect Unemployment While Collecting Workers' Compensation?

Employees collecting, or claiming workers' compensation for total disability would not be allowed to collect unemployment benefits. To collect total disability compensation, you must be unable to perform any form of work. To collect unemployment benefits, you have to allege that you are able to work, and are looking for employment. Once you settle your workers' compensation claim, you may have remaining unemployment compensation entitlement, and you should consider filing for it, if you are unable to find employment.

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Do I Have To Sue Or File A Lawsuit In Order To Get Workers’ Compensation Benefits?

No, you do not have to file a lawsuit in order to obtain workers’ compensation benefits. Nearly all Massachusetts employers are required to state law to provide workers' compensation benefits to those injured on the job. Most often, your employer’s workers' compensation insurer will deny you your benefits, even if your employer is agreeable to you receiving your workers' compensation benefits. If your workers' compensation benefits are denied by your employer’s workers’ compensation insurance company, you must file a claim at the Department of Industrial Accidents. This is not a lawsuit, although due to the complexity of Massachusetts workers’ compensation laws and procedure at the Department of Industrial Accidents, it is strongly recommended that you consult with an attorney.

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Conclusion

Our law firm has earned an excellent reputation in representing injured workers and their families before the Department of Industrial Accidents. Our practice in the area of workers' compensation law is exclusively devoted to representing the interest of injured workers.

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