DEFENDING WORKERS’ COMPENSATION CLAIMS IN THE NEW ENGLAND STATES
Your Massachusetts Workers’ Compensation questions answered during the COVID -19 crisis!
Workers’ Compensation is considered essential and the various administrative agencies that hear these cases are up and running at least to some extent in each New England state.
In Massachusetts all proceedings are going forward except for impartial exams and as a result, the corresponding hearings have been continued until at least mid-May.
QUESTION:
If a claimant is on light duty in Massachusetts, working reduced hours and receiving Temporary Partial Disability benefits, and the facility closes due to COVID-19, are we to continue to pay Temporary Partial Disability or do we now have to pay Temporary Total Disability due to the closure of the facility?
ANSWER:
We recommend you continue to pay the partial as if he continued to work, and have the employer tell the employee to file for unemployment right away. With the enhanced unemployment you will have an offset which is a dollar for dollar offset. Make sure the employee and the employer tell you as soon as he receives unemployment. However, if the employee does not apply for unemployment, then you would still pay the partial and the insurer can request that the employee applies for unemployment. If the employee refuses, then you have the right to stop all compensation payments. The employee can still file a claim and seek total disability benefits but that should be denied pending the DIA involvement. A max partial can be considered in some cases.
~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~
QUESTION:
We have received a number of claims for COVID-19 exposure where the injured workers have tested positive. Would these be considered compensable in Massachusetts?
ANSWER
: In Massachusetts, if the nature of the employment is such that the hazard (or risk) of contacting an infectious or contagious disease (like COVID-19) disease is “inherent“ in the employment, then contracting that disease is considered a personal injury under the WC Act and therefore is compensable. “Inherent” is not defined but should be considered a basic element of the employment. Therefore, if these workers are working and treating patients who have the disease or are cleaning up the rooms they were in or have some direct involvement this would probably be compensable.
However, there must also be the actual risk of exposure – for example if they are sent to a new facility and there were no patients yet but still contracted the disease, then the second aspect of compensability is not there. Remember, an injury must both arise from the inherent risk of the employment and it also must occur in the course of employment. Hence, in this second scenario, if there was no actual exposure then it did not occur in the course of employment.
Finally, there must be an actual personal injury – the mere belief they have the disease and are told to go home and self-quarantine is not yet considered a personal injury under the Massachusetts Workers’ Compensation Act. The employer should be paying their wages in that instance.
So each separate claim must be decided on a case by case basis. The disability aspect must be carefully monitored as well.
~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~
QUESTION:
If someone volunteers to be furloughed does that waive his/her right to file a Massachusetts Workers’ Compensation claim?
ANSWER:
No. An employee cannot waive his/her right to receive workers’ compensation benefits. In Massachusetts, this can only occur when they are first hired and if they do waive that right, they can waive back in if they are hurt at work. A furloughed employee can still file a workers’ compensation claim. If they are receiving unemployment benefits, they can only file for a partial disability and their workers’ compensation benefit, if any, would be a dollar-for-dollar offset of their unemployment benefits. A settlement or a final denial of the case by a judge are the only ways to effectively close out a person’s right to file for workers’ compensation benefits in Massachusetts.
~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~
QUESTION:
Under the COVID–19 crisis, we are seeing doctors or medical providers cancel or not schedule appointments, or employees who do not want to attend treatment appointments. How do we deal with this in Massachusetts and confirm they continue to be disabled?
ANSWER:
This is a judgement call. If you are paying without prejudice and the belief is that the employee is not being honest with regard to their disability or being unable to see a physician, then you can suspend payments with seven days’ notice. If it is an accepted case you can file a Form 108 (discontinuance). Some medical documentation would be needed to file a Form 108 discontinuance, either by an examination, a medical review, a recent treating medical note showing some earning ability or an exam conducted by video or phone. Refusal to attend reasonable medical treatment (not surgery) is a valid ground to seek a termination of benefits. However during this crisis it would be considered reasonable to not attend medical treatment visits for a period of time at least until the lock down order is no longer in effect.
~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~
QUESTION:
An employee working from home left in a company van to make a house call for an appliance repair. On the way he was injured in an auto accident. Is that injury compensable in Massachusetts?
ANSWER:
Generally injuries on a commute are not compensable, but in this case since he was driving to an appointment and in a company van, this incident would be compensable. These types of cases are very fact specific as are injuries occurring in the home itself and the advice of counsel should be obtained before a decision is made to pay or deny the claim.
~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~
QUESTION:
Does a Massachusetts employer have to file a First Report of Injury if an employee is sent home for self-isolation but not yet tested?
ANSWER:
No a First Report of Injury (Form 101) does not have to be filed until an employee has tested positive for COVID-19 and indicates that they believe they were exposed at work. At that point a FROI should be filed and a determination made if the risk of exposure was inherent in their workplace (this is changing as the disease becomes more prevalent) and if there was the probability of an actual exposure. Benefits would be paid without prejudice while the period of actual disability is determined.
~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~
QUESTION:
How would the
potential amendment to the Massachusetts Workers’ Compensation Act
affect insurers?
ANSWER:
This amendment to the Workers’ Compensation Act, if passed, creates a presumption for some health care workers that they were exposed to an infectious disease while at work. If passed, it would not be retroactive unless the Governor feels it is emergency legislation. A presumption means that the case would be deemed compensable for those employees and the burden would shift to the employer or insurer to prove that it was not compensable.
MASSACHUSETTS
DEPARTMENT OF INDUSTRIAL ACCIDENTS HAS IMPLEMENTED NEW EDI NATURE & CAUSE OF INJURY CODES FOR COVID-19 PANDEMIC
The Massachusetts Department of Industrial Accidents has adopted new
Nature & Cause of Injury Codes
specifically for the COVID-19 Pandemic. The DIA is accepting these codes for EDI First Reports of Injuries effective immediately.
A new Cause of Injury Code #83 for “Pandemic” and a new Nature of Injury Code #83 for “COVID-19” have been approved.
For online forms and submissions entered on our web portal please use the drop down or list of values for the new additions by searching COVID-19 for injury code and Pandemic for injury source where applicable.
These codes have been updated by the
WCIO (Workers Compensation Insurance Organizations)
and are used by the
IAIABC (International Association of Industrial Accident Boards and
Commissions)
to reflect specific coding in response to COVID-19.
Please visit the links for the updated tables:
https://www.wcio.org/Active%20PNC/WCIO_Cause_Table.pdf
https://www.wcio.org/Active%20PNC/WCIO_Nature_Table.pdf
WE ARE FULLY PREPARED TO REVIEW OR
DISCUSS ANY ISSUES INVOLVING WORKERS’ COMPENSATION DURING THIS CRISIS.
FEEL FREE TO CONTACT US VIA TELEPHONE,
CELL PHONE OR EMAIL.