Workers’ Compensation 101 (Podcast)
In this podcast, Yolla Sabounji from the Law Office of Robert Frawley explains workers’ compensation. She outlines the definition of a covered workplace accident. Then, she talks about why it’s important to work with a judge even if your employer starts paying your claim right after the injury.
John Maher: Hi, I’m John Maher. 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 workers’ compensation 101. Welcome, Yolla.
Yolla Sabounji: Good morning, John. How are you?
What Is Workers’ Compensation?
John: Good, thanks. So Yolla, what is workers’ compensation first of all?
Yolla: Workers’ compensation is a benefit that is provided to anybody that basically shows up to work every day and then gets injured on the job. It’s there to protect the employee. If you show up to work and you get hurt at work and you are in a position that you can no longer do your job, you’re entitled to compensation and medical treatment for that injury that you sustained while in the course and scope of your employment.
What Does Workers’ Compensation Cover?
John: Okay. So what are some of the things that are included or covered by workers’ compensation?
Yolla: Workers’ comp is pretty comprehensive. If you’re working and you get into a car accident, that’s covered. If you’re working and you slip and fall or if you pick up something that’s too heavy, pretty much anything that you do while in the course and scope of your employment is typically covered under the workers’ comp statute.
The main thing is that you are in the course and scope of your employment. So typically if you’re driving to work it’s usually not covered, but if you drive, if you’re, let’s say, a PCA and you drive from one patient’s house to another, that would be covered because driving from one patient’s house to another is in the course and scope of your employment. But driving to work in the morning is a different situation.
Types of Driving Accidents Covered by Workers’ Comp
John: So commuting is not covered. But if you’re driving, like you said, as part of your job. What if you were just running an errand for work? Your boss says, hey, can you run out to the store and get us some more paper for the copier or something like that, would that be considered that you’re still on the job and you’re doing that for work?
Yolla: I would argue that yes, it would be covered because the purpose of your trip is for work. Now, if you were off the clock and running an errand for yourself personally, let’s say going to the supermarket or going to the post office, now that trip would probably not be covered. But if you are running an errand for your job, then that would most likely be covered.
What Is Not Covered by Workers’ Compensation?
John: Are there any other things that you could think of that would not be covered by workers’ comp or any questions that you typically might get from a client saying, hey, I got injured and this is how it happened, am I covered? Are there situations where you’d have to say, yeah, no, not really in this case?
Yolla: There are definitely situations that you’re not covered. When we meet a new client, we have a very extensive intake so that we have a really good understanding at the beginning of the process whether it’s something that will be compensable or not under the workers’ comp statute. And then after we agree to take your claim, we have to file a claim with the workers’ compensation and then we have what’s called a conciliation.
At that point, a conciliator determines if there’s enough to move forward and then we would be at a judge. So, there’s the process, so before you get to a judge you’ve been through our screening process and through a conciliator. By the time you get to the judge, there’s already two people that have looked at it and determined that there’s enough for a workers’ compensation claim.
Conciliators in Workers’ Comp Claims
John: Who’s the conciliator, who do they work for?
Yolla: The conciliators work for the Department of Industrial Accidents. Many of them are attorneys, some of them are not. They’re just regular people that work in the legal field and they have been hired by the Department of Industrial Accidents, they know the rules inside and out. They know the case law inside and out. They listen to the employee’s attorney. They listen to the insurance attorney.
And then they determine if there is enough information and evidence for the case to be pushed forward to a judge. And if not, they will tell you that the case is basically dead in the water and they either deny it or you withdraw the claim and then it’s over. Whether it’s the wrong employer or non-compensable injury, you figure it out, and then if it’s the wrong employer, you refile the claim with another employer. But by the time you get to the judge, it’s pretty solid of a case.
How Is Workers’ Comp Calculated?
John: Right. Okay. How is workers’ comp calculated?
Yolla: So workers’ comp is calculated, there’s two different tiers. There’s total disability and then there’s the partial. So the total disability pays you 60% of your average weekly wage. So let’s say average weekly wage, they take what you make in the last year of employment divided by 52. Let’s say you make an average of $1,000 a week, 60% of that would be $600. So that would be your average weekly wage if you were totally disabled, you could do no work.
John: So totally disabled doesn’t necessarily mean I can’t walk, it just means I can’t do my job at all. I can’t work at all.
Yolla: Exactly. The job that you are doing, you can no longer do.
And then if they determine that you are partially disabled, meaning that there’s something you can do, and this doesn’t mean that it’s total. It doesn’t mean it’s permanent. It’s not forever, it’s a temporary thing. And then for the partial disability, you would get 75% of your total disability rate. So your $600 would then turn into $450, and that’s what you would get paid weekly based on your average weekly wage of $1,000.
How Does a Partial Disability Affect Workers’ Comp and Returning to Work?
John: And is that with the assumption that you’re going to be able to go to work at least part of the time and complete your job or that you can do certain parts of your job? How does that sort of work?
Yolla: Typically, people do not return to work, even if it’s a partial disability, they don’t work. They just get paid a lower amount because the understanding is that they do have some earning capacity. But typically the employee doesn’t work even though there is an earning capacity.
Who Determines the Extent of the Disability?
John: So who figures that out and decides that? Is that the court, the judge that ends up deciding whether or not you are totally disabled or partially disabled and what those payments will be?
Yolla: Yes, John. So the average weekly wage is determined based on what you’ve gotten paid, there’s usually no negotiation on that. As I was explaining earlier, you have the conciliation and then you get moved forward to the judge. Once you get to the judge, both sides make their argument and then the judge will make an order.
From that order it will either be an order of total disability, so you get your 60% pay, order of partial disability where you get your 75% of your total disability rate, or the judge could deny it all together. That doesn’t happen very often because, like I said, we’ve screened it, the conciliator has looked at it, but sometimes new evidence comes up and it has happened before where the judge denies it. But usually when we get there, we’re in a good spot.
How to File a Workers’ Comp Claim
John: Take a step back and say, I’m injured in the course of my job and I feel like I probably deserve workers’ compensation. How do I go about filing a workers’ compensation claim? What’s the first step?
Yolla: I would suggest your first thing is to notify your employer that you’ve been injured because oftentimes we see that there’s a problem with the notification to the employer. So notify your employer that you’ve been injured, so there’s a record of it, and then I would contact-
John: So, that should be in writing of some kind, like you should send a document or make a copy of that or an email or what’s the best way to do that notification?
Yolla: Not necessarily. Most places you can just tell them verbally and then they document it. But you want to follow up. Whether you have an HR department or you work for a smaller company, whoever you’ve notified, you want to follow up with them. A lot of people just notify their employer verbally and then the report is written and that’s perfectly fine. You just need to follow up, make sure that it happens.
Contacting an Attorney After You Notify Your Employer
John: And then what comes after notifying your employer?
Yolla: And then after notifying your employer, I would highly suggest contacting an attorney because it’s probably the safest way for you to secure your rights. We will fight for you, we will try and get an agreement before we even go to a conciliation. And if we do that, then we are getting you your weekly benefits before we are even in front of a judge, which is way ahead of time.
John: So it would speed up the process and you’d be able to start getting your compensation much earlier that way?
Yolla: Absolutely you would.
John: So it’s not required that you end up going before a judge and having the judge decide this. If your employer says, oh yeah, you definitely got injured on the job and I’m willing to pay their workers’ compensation and everybody’s in agreement, you don’t even have to go before a judge at all?
Why You Need a Judge’s Order and an Agreement
Yolla: Correct. I mean, eventually you will, but for the beginning you will not. You’ll start getting paid. But a lot of people think they don’t need an attorney at this point because what a lot of employers try doing is they say, oh yeah, you were definitely hurt on the job. We’re going to pay you your workers’ comp. And then the employee thinks, oh, well I don’t need a lawyer. They’re going to pay me.
And then they think they’re all set, but then they don’t realize that during this time, there’s no judge’s order, there’s no agreement. The employer just decided to pay them the workers’ comp rate. So they could stop that payment at any time. So if we haven’t started the process with the claim in the Department of Industrial Accidents, we’re behind the eight ball at this point. Because if we’re filing the claim after they’ve stopped your payments, then we’re that much farther behind from getting your payments restarted.
John: All right. So it’s important. So even if your employer says, oh yeah, it’s fine, we’ll pay you the workers’ comp, you still should go and see a lawyer and make sure that you get that claim actually filed?
Yolla: Absolutely. And then in that same instance, we can communicate with the insurance company and the attorney for the insurance company and work out an agreement for that payment that they are making and have it be for a certain period of time pending certain medical appointments or whatnot. And then at that point, we’ll still be going through the court process.
So, by the time the agreement is over we’ll most likely be in front of a judge. So we’re trying our best to make sure that you’re not going a long period of time without payment, which I’ve seen happen very often when people decide that, oh, well, I’m getting paid I don’t need an attorney. And then they come in after the fact and they’re just frantic because the insurance company just decided to stop paying them.
John: Right. Okay. All right, well, I think that covers it, and that’s really great information Yolla. Thanks again for speaking with me today.
Yolla: Thank you John for having me. It was a pleasure.
Law Office of Robert Frawley
John: And for more information, you can visit the Law Office of Robert Frawley at frawleylaw.com or call 617-523-2929.