Massachusetts Workers’ Compensation Update
The TKCK Appellate Department successfully argued at the Massachusetts Appeals Court that an employee is precluded from filing a claim for a body part known but not claimed after an approved settlement “unless the rights to claim this injury is specifically reserved in the settlement.”
The Appeals Court and the Review Board completely agreed with TKCK’s argument overturning the hearing judge’s decision, which allowed the claim to proceed.
SHUT THE DOOR, WILL YOU PLEASE?
The Massachusetts Appeals Court has followed the DIA Reviewing Board in agreeing with TKCK that because the insurer timely raised the lump-sum agreement as a bar at the hearing before the administrative judge, the Reviewing Board correctly reversed the administrative judge’s decision as “contrary to law”. The Court held that the omission of the employee’s left shoulder injury compelled that the lump-sum agreement settled all claims arising out of the industrial accident and extinguished any further recovery.
An employee is precluded from filing a claim for known but unspecified injured body parts stemming from an industrial accident known prior to a lump sum settlement. Once an administrative judge has approved an agreement, payment made by the insurer is a full settlement of all compensation due to the employee under the Workers’ Compensation Act, unless a benefit is specifically reserved in the settlement papers. If the parties intend to reserve the right to claim an injury or body part, they must specifically state so in the lump sum settlement.
The § 48 lump sum settlement agreement between the employee and the insurer for injuries to the employee’s right shoulder and neck arising out of an industrial accident barred further recovery for different known injuries arising out of the same accident, where the employee was aware of the different injuries (i.e., to her left shoulder) at the time she entered into the lump sum agreement but failed to specifically reserve or exclude the left shoulder injuries from the agreement’s scope.
This decision elevates the force and effect of an approved Lump Sum Settlement to limit all future medical responsibility to only those body parts and conditions specifically listed, described, and accepted. Failure to expressly reserve, protect, or preserve in clear and unambiguous language, upon the agreement permanently closes the door to later claims. No insurer is required to explicitly exclude all body parts not accepted in a lump sum settlement. The employee cannot later raise an injured body part that was voluntarily relinquished in the lump sum settlement.
This case was briefed and argued on appeal by Attorney Robert Martin of TKCK.
Please contact Attorney Steve Bolognese for any Medicare implications, but Medicare is not implicated unless the settlement explicitly closes out liability for future medical care on claimed body parts or conditions, not unclaimed ones.
“If it isn’t on there, it isn’t in there.”
Please click here to read the decision from the
Massachusetts Appeals Court
Massachusetts
Workers’ Compensation
and the new PFML Laws
(“Paid Family Medical Leave”)
Please note that a workers’ compensation offset runs in favor of the PFML Trust Fund.
(6) Reductions:
“The weekly benefit amount for a period shall be reduced by the amount of wages, wage replacement, or leave that a covered individual on family or medical leave receives for that period from…(a) Any government program or law, including unemployment benefits M.G.L. c 151A, or workers’ compensation under M.G.L. c 152…”
The regulations and the law did not create a process for reimbursement to the Fund so this shall be carefully monitored by the employer or the workers’ compensation insurer.
Employees applying for leave benefits must indicate if they are receiving workers’ compensation and that their answers are truthful.
An employee on partial workers’ compensation benefits could be entitled to some partial PFML benefit but the amounts will be affected. Any post-PFML payment of workers’ compensation benefits shall consider the amount paid by PFML and deal with it appropriately and consider repayment to the PFML Trust Fund by the employee.
Proposed Massachusetts
Legislation Changes
There is a bill pending at the Massachusetts Legislature to significantly increase the amount paid under Section 36 for disfigurement from a maximum of $15,000 from a work-related injury to a maximum of 30 times the October 1, 2019 SAWW of $1,431.66, or $42,950.00.
If this is passed by the Legislature, it would be a significant increase in the amount paid for compensable bodily disfigurement and will have a major effect on workers’ compensation settlements.
Heard through the grapevine
A few lawyers are reporting that settlement checks are being stolen. Insurers and self-insurers may want to keep this in mind and consider direct deposit of checks, overnight delivery, or notifying the employee and the attorney that the checks have been sent, especially on larger settlements.