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Chapter One:
The Massachusetts Workers’ Compensation Act

he Massachusetts Workers' Compensation Act was enacted in 1911 to provide monetary benefits, medical care and rehabilitation services to injured workers.

Contrary to popular belief, workers' compensation was not created in response to workers' demands. The forces behind workers' compensation were the National Civic Federation and other business-supported groups, which were trying desperately to deter workers and their families from suing after fires, explosions and other workplace disasters. The American Federation of Labor offered only lukewarm support.

The compensation system is sometimes described as a trade. For a limited number of weeks persons disabled by job injuries are guaranteed a portion of their pay. In exchange, workers and their families lose their right to sue employers, supervisors or coworkers in court for pain, suffering, loss of support or other damages.

Over time the trade has proven to be one-sided. What employers obtain through lawsuit immunity far outweighs what they pay in compensation benefits. Put another way: What workers and their families are forced to give up is far greater than what they receive.1

Ups and Downs

In its first 73 years, few dramatic changes were made to the Massachusetts compensation system. Meanwhile, other states implemented speedier procedures and paid more adequate benefits. In the early 1980s injured workers, unions, and health and safety organizations in Massachusetts campaigned for reform.

In 1985 these groups convinced the state legislature to revamp the system: the Massachusetts Division of Industrial Accidents was reorganized, benefits were increased, cost-of-living protection was added, and insurers were made responsible for workers' legal expenses.

Five years later, however, the Massachusetts economy entered a downturn. Business groups, exaggerating the burden of insurance premiums and threatening to leave the state, demanded rollbacks in worker benefits.

In 1991, in a shameful display of blaming the victim, the legislature:

• Reduced the total-disability benefit rate to 60% of wages
• Shortened the duration of total-disability benefits to three years
• Reduced the partial-disability benefit rate by 10%
• Shortened the duration of partial-disability benefits to five years
• Eliminated payments for the first five days of disability (except for extended injuries)
• Eliminated benefits for scarring other than on the face, neck and hands
• Reduced cost-of-living benefits
• Eliminated certain injuries from coverage

No advances have been made to the Compensation Act since 1991, despite annual efforts by unions and others to restore balance to the system.

Coverage

All private sector employers, even those with only one employee, are required to purchase workers' compensation insurance or to qualify as self-insurers. Policies must cover all employees from day one, except for seasonal and casual workers and part-time domestic workers, for whom coverage is elective. A workplace notice must be posted with the insurer's name. Failure to insure is a criminal and civil offense. Penalties may include a stop work order, a fine of $100 per day, and imprisonment for up to one year.

Self-insuring employers pay compensation benefits directly. They must purchase surety bonds to cover claims if they should go out of business. Among the larger self-insurers in Massachusetts are AT&T, Massachusetts General Hospital and Verizon.

Workers' compensation is elective for cities and towns. Although the vast majority participate, some municipalities, such as Hopedale and Tewksbury, have never accepted the Act, and others, such as Lawrence, Newton, Brookline, Brockton, and Beverly, do not cover teachers or other white-collar employees.2

Exclusions. Railroad workers, seafarers, police officers, firefighters and independent contractors are excluded from the compensation system. Also excluded are persons such as babysitters and home gardeners whose employment is not part of their employer's regular business. Shipyard and harbor workers and employees of the U.S. government are covered by federal compensation programs.

The DIA

The Division of Industrial Accidents (DIA) administers the compensation system from Boston, Fall River, Lawrence, Springfield and Worcester. (See Appendix D for addresses.) A commissioner, 21 trial judges and six appeals judges are appointed by the Governor. No more than 11 trial judges and three appeals judges may be from the same political party. Current appointees and their party affiliations are listed in Appendix C.

The DIA website, www.state.ma.us/dia, posts general information, news releases, reviewing board decisions and forms.

Questions and Answers

Non-profits covered

Q. Do charities and unions have to carry workers' comp?

A. Yes. The Compensation Act applies to charities and other non-profit organizations except those that are staffed exclusively by volunteers.

"Independent contractor"

Q. I was injured working for a roofing company. The company says I can't collect compensation because I'm an independent contractor. What are my rights?

A. True independent contractors — persons having their own distinct businesses — are not eligible for workers' compensation. But labeling you an independent contractor does not determine your status. If the roofing company controls the manner and means of your work, supplies your equipment, can terminate you at will, or pays you a wage based on time worked, you may qualify as a covered employee and can claim compensation benefits.

NOTE: Although excluded from compensation, independent contractors can sue in court if injuries are caused by employer or coworker negligence or other misconduct.

No forfeiting compensation rights

Q. When I left my job I signed an agreement releasing the company from all claims. Does this apply to workers' comp?

A. No. A departing employee cannot give up his or her right to workers' compensation except in the form of a lump-sum settlement approved by the DIA for a particular injury. A pre-employment waiver of compensation rights is likewise invalid.

Compensating the undocumented

Q. Can an immigrant without proper papers collect compensation if he is injured on the job?

A. Yes. The DIA Reviewing Board has ruled that undocumented workers are entitled to full compensation benefits.

When employer goes naked

Q. My employer does not carry compensation insurance. If I get hurt, what should I do?

A. File a DIA claim (or have an attorney file for you) against the Workers' Compensation Trust Fund, a DIA department that pays benefits to employees of uninsured employers (and then sues employers for reimbursement). Also consider a lawsuit: Without compensation insurance your employer has no immunity and would be liable to you for civil damages. Tip: Pressure your employer to buy compensation insurance by reporting its name to the DIA. You will not have to identify yourself.

Smoke and mirrors

Q. I've been told that there is a way to keep my right to sue if I should get injured. Is this correct?

A. Yes and no. Section 24 of the Compensation Act allows a worker to sue his employer for personal injuries if the worker claims such right in writing on the day he is hired. Defenders of the system assert that this shows that workers are not forced to give up their legal rights, but this claim rings hollow: What job-seeker can safely submit a right-to-sue notice before work begins?*

Check, please

Q. How are employers' workers' compensation premium rates determined?

A. The Massachusetts Division of Insurance sets rates for job classifications based on the likelihood of injury. The rates, such as $2.50 for a sprinkler installer or $.25 for a clerical worker, are paid on each $100 of weekly wages. Many businesses are also "experience rated," meaning that yearly premiums are adjusted by the number of claims or the amount of losses.

NOTE: Labor groups contend that large amounts of employer premium fraud rob money that could go toward benefits. Among such schemes are underreporting payroll, misclassifying occupations, and misrepresenting claims experience.

Labor’s say

Q. What role do labor unions have in overseeing the compensation system?

A. A Workers' Compensation Advisory Council conducts studies and makes recommendations. Five of the ten voting members are appointed by the Governor from the ranks of organized labor.

Who's minding the store?

Q. The business I worked for is closing. Will this affect the checks I receive from the insurance company?

A. No. Paying compensation benefits is the insurer's responsibility.

The name game

Q. How can I find out the name of our comp insurer? There is no posting in the shop and my employer will not tell me.

A. The DIA Office of Insurance keeps a record by employer. Call for information.

Police and firefighters

Q. If police and firefighters are excluded from the workers' compensation system, what happens when they are injured?

A. State law guarantees full pay to a police officer or firefighter "incapacitated for duty because of injuries sustained in the performance of his duty without fault of his own."

Compensation rebels

Q. Why aren't railroad employees covered by workers' comp?

A. At the turn of the century railway workers, led by their unions, rejected inclusion in workers' compensation programs. Along with seafarers, they are the only employee groups able to sue employers for job injuries.

School bells ringing

Q. Where can I attend classes on workers' comp?

A. The Labor Guild of Boston provides classes on a variety of subjects including workers' compensation and labor law. (See Appendix D).

The real thing

Q. How can I get a copy of the Workers' Compensation Act?

A. A booklet containing the Act (Chapter 152 of the Massachusetts General Laws) along with DIA regulations can be purchased from the State House bookstore for $10 plus $2.90 postage. The law is on the internet at www.state.ma.us/legis/laws/mgl.

Notes

1. Proof? Despite incessant complaints about the costs of workers' compensation, no employer group has ever called for a repeal of the system.

2. Public employees not covered by workers' compensation can sue municipalities or school departments if injuries are caused by management negligence or other misconduct. Recoveries are limited to $100,000.

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