Understanding the Financial Aspects of Workers’ Compensation (Podcast)
In this podcast, Yolla Sabounji from the Law Office of Robert Frawley explains how workers’ compensation payments are calculated. She talks about wage replacement payments as well as coverage for medical expenses.
John Maher: Hi, I am John Maher and I’m here today with Attorney Yolla Sabounji from the Law Office of Robert Frawley, a law firm in Lawrence, Massachusetts serving clients in Massachusetts and New Hampshire with cases involving workers’ compensation, personal injury and social security disability benefits. Today our topic is understanding the financial aspects of worker’s compensation. Welcome, Yolla.
Yolla Sabounji: Hi, John. Thanks for having me.
Workers’ Compensation Eligibility
John: Sure. So Yolla, am I automatically eligible for worker’s compensation?
Yolla: John, I wouldn’t say automatically eligible for worker’s compensation. Nobody’s automatically eligible. You have to have a compensable work injury, which means you have to have an injury that happened in the course and scope of your employment. Sometimes the employer’s insurance company will start to pay you benefits without filing a claim. But the problem with that is that they can stop it at any time. So it’s really important to file a claim to secure those benefits.
Are Employers Required to Have Workers’ Compensation?
John: Are all employers required to have workers’ comp insurance?
Yolla: Employers are required to have workers’ comp insurance, but in the state of Massachusetts, you are protected by what’s called the trust fund. So if you are employed and you get hurt, and it turns out your employer does not have workers’ compensation insurance, there is a trust fund that we could file a claim against for benefits.
Then they actually can place fines on the employer for not having workers’ comp insurance. But it’s there to protect the employee so that you still get your benefits even though your employer did not do what they were supposed to do and have coverage.
Workers’ Compensation Benefits
John: So what worker’s compensation benefits am I entitled to receive if I have been injured?
Yolla: So if you’ve been injured at work, you are entitled to receive your weekly compensation. So the money that you would get in place of your check. So your lost wages benefits. You’re also entitled to medical care. So the worker’s comp should be paying for all of your medical treatment and the worker’s comp will also pay the attorney’s fees. So it doesn’t cost you money out of your pocket to have an attorney. The worker’s comp insurance pays us to represent you.
Payments for Lost Wages Due to Job-Related Injuries
John: Okay. Yeah. So when am I entitled to receive payment for lost wages due to a job related injury?
Yolla: So if you came to me and you had a job injury, an injury at work yesterday, unless the insurance company filed a denial, I am restricted by statute from filing a claim for 30 days. So unless the insurance company for your employer denies it, whether it be on the basis of the injury or the accident or whatever reason, unless they actually file a denial of your claim, I cannot file the claim for benefits prior to 30 days after your accident.
Are Employees Covered If the Injury Was Their Fault?
John: Is there any fault involved in a worker’s compensation claim? Can an employer say, “Okay, well you were injured but it was your fault that you were injured. You didn’t follow the guidelines that we set or the rules that we set for, I don’t know, using this machinery or equipment or something like that.” Is there any sort of issue that the employer can bring up in terms of saying that it was your fault?
Yolla: I wouldn’t say that they would bring up an issue of fault. I mean, there’s always issues that the insurer brings up. The insurer being the company representing the employer, they’re going to bring up many, many things. Whether it’s the liability, or the fault or the extent of the injury, they have multiple claims for why they shouldn’t be responsible.
But if it happened at work and it was not a deliberate act of a third person, I would say that was inevitable outside of work, we’re getting into a whole new area of the law there. But typically if it happens at work and all you’re doing is your job, you’re covered. I’ve even had cases where an employee is physically assaulted by another employee or even a customer if they’re in retail or whatnot, and they’re exposed to customers. Even physical assaults have been deemed compensable under workers’ compensation.
So you really have to take each case individually to determine that because there’s a lot of exceptions to every rule, but for the most part, the general rule, if it happened at work and you got hurt, call a lawyer because there’s most likely a chance that you should be compensated for your injuries.
When Do You Start Receiving Workers’ Compensation Payments?
John: Okay. So say I’ve been injured, I stopped working, I’ve told my employer that I’m going to be filing a worker’s compensation claim, and I go ahead and I talk to a lawyer and we start to file that claim. When do I start receiving checks?
Yolla: So that is a little bit more complicated. There’s multiple ways for checks to start. So oftentimes the attorneys enter into an agreement early on in the case, so you could start receiving your checks as early as a couple weeks after you’ve hired the attorney. Oftentimes, that’s how it works.
Other times when there is no agreement, the case has to go before a conciliator, which is a person hired by the Department of Industrial Accidents. They actually work for the court. They hear both sides and they determine if there is enough information and evidence for the case to move forward to a judge as a compensable injury under the Worker’s Compensation Act.
Then if it does, then you get scheduled for a conference. That’s when all the parties appear before a judge and the judge hears all the sides and arguments to the claim and makes a determination. If there hadn’t been an agreement early on in the case, it’s this determination by the judge that will decide whether or not the employee is going to receive benefits. It could be early on within a couple weeks, but it could also be two months before you start receiving benefits.
Amount of Compensation for Workers’ Comp Claims
John: Right. Okay. How much compensation am I entitled to receive?
Yolla: If you’re determined to be totally disabled, meaning you absolutely cannot do any aspect of your job because of your injury, you’re going to get 60% of what they call your average weekly wage. So if you make on average a thousand dollars a week, you’ll get $600 a week.
But if they determine that you’re only partially disabled, meaning you have some work capacity, you’ll get 75% of that total disability rate. So that $600 becomes 450 and that’s what you would get paid weekly if a determination of partial disability is made.
Calculating Your Average Weekly Earnings
John: You said it’s 60% for the total disability is 60% of the average weekly wage. Is the average because not everybody has a salary position where they’re getting the same amount every week and they’re working the same hours, less hours one week and more hours another week. Or maybe they’re compensated differently from week to week for some reason. So the average would sort of compensate for that. Right?
Yolla: Right. So basically they look at… A lot of people work overtime. Sometimes they work 30 hours, some weeks they work 40 hours, so their hours could be different. Not everybody’s on a salary. A lot of people who get injured at work are usually doing physical work and they’re usually hourly employees. So the way the average weekly wage is calculated is they take what the employee made every week for the last 52 weeks, it gets added together and divided by 52, and then that gives you your average weekly wage.
John: So the 52 weeks of the last year? So that would cover any kind of ups and downs in seasonality as well. If you were a roofer and you’re only working mostly during the summers, but in the winters you’re not really working, that would kind of compensate for that.
Yolla: Absolutely because it wouldn’t be fair just to take the last month. It’s a very fair system. So it takes a larger amount of time and it puts it all into consideration.
How Long Do You Receive Workers’ Compensation Benefits?
John: How long can I receive the benefits for?
Yolla: Between the partial disability and the total disability you’re entitled to benefits for up to seven years. This is something that I would like to touch on, John if that’s okay.
What people don’t understand oftentimes in workers’ compensation is that there’s no allocation for pain and suffering in workers’ compensation. It’s basically exposure. So even in a settlement of a worker’s compensation claim, it’s basically how much money is left of those seven years of benefits that you were entitled to. That would be the most that your claim would possibly settle for.
I mean, it’s not like a car accident where you broke a bone. So a broken bone is worth X amount of dollars. It just doesn’t work that way. So there’s three years of the total disability and four years of the partial disability. That’s what the statute allows you to be paid for.
So if you are paid a year of partial disability and a year of total disability, so that end result, what’s left for the settlement is two years of total disability and three years of partial disability. You calculate what those wages would be, you multiply them and that’s what the demand would be because the exposure is not greater than that.
Yolla: That’s what the attorneys argue about. Excuse me. Not argue. Discuss, negotiate.
How Are Benefits Disbursed?
John: So then are you getting a weekly check or a monthly check with the worker’s compensation benefits, or do you get it all at the beginning as like a lump sum or how does that work?
Yolla: Nope. If benefits have been ordered, you’re getting a weekly check and then the lump sum is at the end when the case is settled.
John: I see. Okay.
Yolla: When the case is settled, there’s actually language in there that you understand that your weekly checks are going to stop. You’re taking this lump sum as the final payment and your weekly checks will stop.
Do You Have to Continue to Prove That You’re Unable to Work to Get Paid?
John: Okay. Do I have to continue to show that I’m still injured and that I still can’t perform my job in order to continue to receive checks?
Yolla: Well, there’s an order in place from the judge for a certain amount of time, but every step of the way we are gathering more medical records. We are continuing to prove that you as the employee remain disabled. Whether it’s partial or total, we are proving that through the medical records continuously throughout the case.
So whenever we submit medical records at the conciliation, we submit medical records at the conference, we continue to share records with the insurer counsel, the attorney for the insurance company. We present records at the pre-hearing. We present more records at the hearing if the case doesn’t settle. Our staff is constantly getting medical records. Probably, half of our mail every day is medical records. We’re constantly receiving new medical records.
John: All right. Well, that’s really great information, Yolla. Thanks again for speaking with me today.
Yolla: Absolutely. My pleasure, John. Thank you so much for having me. Contact the Law Office of Robert Frawley to Learn More.
John: Sure. For more information, you can visit the law office of Robert Frawley at frawleylaw.com or call 617-523-2929.