After receiving a claim, the DIA follows a three step procedure involving a conciliation session, a conference and a hearing.
The first step in a case contested by the insurer is called conciliation. Conciliation is an effort to settle the case at an early stage. It consists of a meeting between a DIA official (Conciliator), the employee and/or the employee's attorney, and the insurer's attorney. The conciliation session should take place within 15 business days of the claim filing. The conciliator tries to get the parties to reach a voluntary agreement but has no authority to order the insurer to pay benefits, although a recommendation is made. If a conciliation fails, the case will be referred for conference with an Administrative Judge, where the recommendation will be accorded some weight.
The conference should be held within 28 days from the date of referral. The employee and the insurer's representative or attorney must be present at the conference. If the employee has an attorney, the employee's attorney and the insurer's attorney will present legal arguments to the judge. The judge will receive evidence, including hospital records and physician's reports, and will issue a conference order within seven days. If the judge orders the insurer to pay benefits, the insurer will also be required to pay the employee's attorneys' fees.
The employer and the insurer both have 14 days following the conference order to request a formal hearing before the same judge to reconsider his decision. The judge must schedule a hearing within 28 days. In the meantime, the insurer must pay any benefits included in the conference order.
Note: In practice, the DIA does not strictly follow the set scheduling guidelines. For example, it usually takes more than 28 days after a conciliation before a conference is held.
At the hearing, witnesses testify under oath and are subject to cross-examination, and an official transcript is made. The judge may order that an impartial medical examination be performed. In that event, the employee must attend a medical examination by an impartial physician either chosen by the DIA or agreed to by the parties. The impartial physician's report or testimony will be the only medical testimony considered at the hearing unless the judge finds that the case is so complex that other medical opinions would be helpful.
The judge then issues a decision. (Again, any benefits specified in the conference order must be paid.) The judge's decision can be appealed to the DIA Review Board (a panel of judges). A further appeal can be taken to the Massachusetts Appeals Court.
Termination of Benefits: 180 Day Rule
As mentioned earlier, the insurer has 14 days after receiving the First Injury Report to either begin payment of benefits or send a notice of rejection. An insurer who begins payments under the 14-day rule can unilaterally terminate or modify payments within the first 180 days of disability.
The insurer does not need permission from the DIA to terminate or reduce benefits during this 180 day "payment without prejudice" period if said change is based on actual income of the employee or if it gives the employee and the DIA at least seven days written notice of its intent to stop or modify benefits and contest any claim filed. The employee can contest discontinuance by filing a claim with the DIA.
Note: The 180 day "payment without prejudice" period may be extended to one year by written agreement between the employee and the insurer.
After 180 Days
After 180 days, the insurer's ability to discontinue or modify benefits is more restricted. Termination is allowed only where one of the following conditions occurs:
1. The employee's treating doctor, or an impartial physician appointed by the DIA writes a report stating that he or she can return to the job held at the time of injury and the employer states in writing that the job is available. Copies of the doctor's report and the employer's offer must accompany the notice. The insurer petitions the DIA for a determination of ability to work. This is known as a complaint for discontinuance of benefits, and follows the three-step process of conciliation, conference, and hearing. The complaint must be based on a physician's report indicating the capacity to work.
Note: The employee must appear for examination by a physician selected by the insurer. Failure to appear can result in suspension or loss of benefits. The insurer must pay the employee's expenses for travel to and from the exam. The examination must be scheduled for a day and time convenient to the employee.
2. The employee has returned to work and is earning his or her regular wages. If the employee is earning less than usual wages, due to disability, the insurer must continue to pay partial compensation, i.e., sixty percent of the wages lost due to disability, but not in excess of 75 percent of the previous total disability rate. An employee who returns to work must be given a 28-day trial period. If the employee's disability causes him or her to leave work during this twenty-eight day period, and if the employee informs the employer and insurer by certified mail during the 21 days after he or she leaves work, the insurer must resume benefit payments.
Lump Sum Settlements
Be Aware: This is Strictly Voluntary.
The first point to keep in mind is that no one can force you to sign a lump sum settlement agreement. If an insurer asks you to sign a release, you should consult an attorney.
In a lump sum situation, the insurer gives the employee a single sum of cash; in exchange the employee releases the insurer from any further obligation to make weekly cash benefit payments. Acceptance of lump sum settlement creates a presumption that the employee is physically incapable of returning to work with the employer where the injury occurred. Such presumption shall continue for a period of one month for each fifteen hundred dollar amount included in the settlement.
However, a lump sum settlement for injuries occurring after November 1, 1986, will not release the insurer's responsibility for medical and vocational training benefits.
Exception: A worker injured after November 1, 1986, can release the insurer from future "foreseeable" medical expenses if he or she "lump sums" before the insurer has accepted a claim and before a DIA judge orders payment.
Note: It is illegal for an insurer or self-insurer to demand the employee's resignation as a condition for lump sum settlement.
Most employers take injured employees back following recovery. However, they are not required to do so by the Compensation Act. Employers are only obligated to give injured employees preference over new hires for vacancies. The employer can replace and injured employee while out on disability.
It is illegal for an employer to discriminate against an employee for filing a compensation claim, collecting benefits or testifying at DIA hearings.
Rights to Accommodation
Under the Massachusetts Handicapped Workers' Rights Act, employees on workers' compensation are considered "handicapped." As a result, their employers must make reasonable accommodations to help them continue in employment, such as adjustments in schedules and duties as well as providing special equipment.