DI 52120.120 Massachusetts Workers' Compensation (WC)
Massachusetts WC is administered by the Department of Industrial Accidents (DIA). WC insurance is provided through private carriers but employers may self-insure.
A. Types of WC payments
NOTE: Per Massachusetts WC law (Chapter 152: Section 35A), an additional $6 per dependent per week is added to TT, PP, or PT WC, but only if the additional amount does not cause the total weekly WC to exceed $150 per week.
Temporary Total (TT) [Chapter 152: Section 34, ‘total incapacity’]. TT is based on 60 percent of the injured worker’s gross wages before the injury. These payments are limited to 156 weeks.
Permanent Total (PT) [Chapter 152: Section 34A, ‘permanent and total incapacity’]. PT is based on 66 2/3 percent of the injured worker’s gross wages. Weekly PT continues for the duration of the disability.
Permanent Partial (PP) [Chapter 152: Section 35, ‘partial incapacity’]. PP is based on 60 percent of the difference between worker’s earnings before and after his injury, but may not exceed 75 percent of the TT rate. These payments are limited to 260 weeks but can be extended to 520 weeks for certain types of severe disability.
Scheduled Award payments for a Specific Loss (Chapter 152: Section 36, ‘specific injuries’). These lump sum awards are made to compensate for the loss of (or loss of use of) a specific body part. Although they are calculated without regard to loss of wages, they ARE offsettable WC. Often referred to as ‘Section 36’ payments, scheduled awards are paid directly after the date of injury and are made in addition to TT benefits. They are not reduced for receipt of TT. If concurrent TT is awarded, offset is based on the total of both types of WC.
Bodily disfigurement awards are also made under Section 36, and are paid in addition to all other WC, including sums due under this section. However, for workers injured 12/24/1991 or later the disfigurement award amount may not exceed $15,000.
NOTE: The POMS provision showing that scheduled award payments for a specific loss are offsettable was added on 04/30/2001. Prior to that, various offices had not offset for these payments. This was not a "change of position" per GN 04001.100; cases that were worked erroneously treating these WC payments as not offsettable should be handled under the normal rules of administrative finality.
Lump sum (LS) settlement awards
Pay close attention to the wording in lump sum settlement awards.
Were Section 36 payments included? A life expectancy rate expressed in the award might have been calculated using the amount due after excluding Section 36 payments instead of the gross lump sum amount. Section 36 WC is offsettable, so if this was done add the Section 36 payment amount back in and recalculate the proration rate. For more information on life expectancy proration, see DI 52150.065.
Were payments for inchoate rights included? Amounts paid for inchoate rights (which are for a dependent of the injured worker but included in the LS) are NOT offsettable and NOT an excludable expense. These amounts are simply deducted from the gross amount of the lump sum before proration (and before calculating the proration rate in life expectancy LS settlements).
NOTE: Lump sum settlements often include an addendum with the life expectancy proration information that was completed on the same day as the settlement. Check the date of any addendum. If it was completed the same day as the settlement it is a valid part of the original settlement.
B. Cost-of-living Adjustments (COLA)
COLAs are given by statute and apply to workers receiving PT WC whose date of injury is at least 24 months prior to October 1st of the COLA year.
COLAs are given every year, effective October 1st. The COLA increase amounts are capped by the State.
A COLA is payable as long as the increase would not cause additional offset in SSA benefits (this is NOT a reverse offset plan). To help WC insurers determine if a COLA is payable, SSA provides DIB payment information to them upon request, via the State's Form CR-28 (‘WC COLA Data Form’).
NOTE: Cases involving Massachusetts WC may include a request for voluntary waiver of SSA benefits in order to qualify for the Massachusetts COLA. Effective with the month the voluntary waiver takes effect, the WC is increased by all the COLAs that applied in the interim. See GN 02409.001-GN 02409.040 on processing a voluntary waiver of benefits.
C. Form CR-28 (WC COLA Data Form)
Requests from insurers for DIB payment information are received on form CR-28. Requests from companies located in Massachusetts are normally handled by the FO that services the insurer. Insurers located outside the State send their requests to SSA, attn: WC Unit, 10 Causeway Street, Room 148, Boston, MA 02222-1213
2. Action before completion
Receipt of a CR-28 indicates the worker is receiving WC. Before completing the form, check the MBR and WC/PDB ICF Datasheet to verify that we have WC information and that it’s current. Adjust offset if necessary and then complete the form.
3. Completing the CR-28
SSA FOs are responsible for completing Part III.
Block A – Check this if there is partial WC offset to at least one beneficiary.
Block B - Check this if there is no offset because the worker attained age 62/65 or DIB terminated. Enter the appropriate month and year.
NOTE: Effective December 19, 2015 or later, WC offset termination extends from age 65 to full retirement age (FRA). See 2015 amendment in DI 52101.005.
Block C - Check this if an MBR “NIF” reply is received.
Block D - Check this if the worker is receiving Social Security benefits other than DIB, or if the DIB claim was denied.
Block E - Check this if blocks A, B, C, or D do not apply, and enter the requested data.
ITEM 1 - Enter the total family benefit (TFB) as of the first possible month of offset using the current family configuration.
ITEM 2 - Enter the 80 percent average current earnings (ACE) even if the TFB is the applicable limit. Furnish the 80 percent ACE based on the information on the MBR or WC/PDB ICF. Do not develop earnings to establish a potentially higher ACE solely for the data form.
Complete items 3, 4 and 5 only if a triennial redetermination gave an increase in benefits.
ITEM 3 - Enter the most recent 80 percent redetermined ACE.
ITEM 4 - Self-explanatory.
ITEM 5 - Enter the amounts payable to the family in the month of the redetermination (item 4), but before the redetermination increase.
Block F - the FO must complete this block.
Scan a copy of the dated form into NDRED. Return the form to the State (or its carrier) at the address provided. The consent of the worker is not needed for SSA purposes as long as the information provided is used to administer the State WC program.
D. Attorney fees
Attorney's fees are governed by Chapter 152, Section 13A.
1. Periodic Payments
The attorney fee may be paid by the carrier or the worker.
When the carrier contests the award of periodic payments, the carrier is responsible for payment of attorney fees. However, the carrier is permitted to reduce the claimant’s WC, as credit towards the attorney fee, for one month only by up to 22 percent of that month's periodic benefits. Subsequent payments then will resume at the full rate. In these cases, the claimant may receive an "Order of payments" from the DIA showing "the insurer may withhold the employee's share of the attorney fees". The carrier's payment record may show the reduced rate for the one month with a comment "less Section 13(10)A". THIS COMMENT INDICATES THE EXCLUDABLE EXPENSE WAS DEDUCTED.
When the employee appeals a decision of an administrative judge and prevails, the employee must pay the attorney fees. These can be treated like any other excludable expense.
2. Lump sum payments
The attorney fee is paid from the amount of the settlement. For LS settlements, the fee is limited to 20 percent of the total lump sum amount if the insurer has accepted or been assigned liability. If the insurer has not accepted nor been assigned liability, then the fee is 15 percent of the total amount. The fee is lower if a LS includes Section 36 (scheduled award) payments, as attorneys cannot collect a fee on those benefits.
E. Retirement insurance benefit (RIB) considerations
Massachusetts does sometimes reduce WC payments for receipt of SSA RIB, but only when the worker is age 65 or older.
F. Time limitations for filing claims
There is a 4 year time limit for filing a WC claim, or an appeal to the denial of a claim.
G. Verifying WC
1. State: Contact Information:
Department of Industrial Accidents
1 Congress Street, Suite 100
Boston, MA 02114-2017
Phone: 617-727-4900; 1-800-323-3249
If the carrier is unknown, call the Office of Insurance in Boston at 617-626-5481. They can tell you who the carrier is.
H. Massachusetts WC Forms
1. Insurer's Notification of Payment (Form 103):
This is filed by insurance carriers when weekly benefits are paid within 14 calendar days of their receipt of a written claim for weekly benefits. It’s mailed to the Department of Industrial Accidents (DIA) with a copy to the worker and the Employer.
2. Insurer's Notification of Denial (Form 104):
This is filed by insurance carriers within 14 calendar days of their receipt of a written claim for weekly benefits that is being denied. It’s mailed to the DIA with a copy to the worker and the Employer.
3. Agreement to Extend 180 Day Payment-Without-Prejudice Period (Form 105):
This form is used to increase the period of voluntary payment by the insurer (the “Pay Without Prejudice” period) up to one year, with the worker’s written consent. The DIA must approve the form. It is filed the WC Board when compensation is initiated, reduced, modified or discontinued based on an agreement of the parties outside the litigation process.
4. Insurer's Notification of Termination or Modification of Weekly Compensation During Payment-Without-Prejudice Period (Form 106):
When WC payments were made voluntarily, this form is filed to give advance notice to the worker of the carrier’s intent to stop or modify his WC. At least 7 calendar days written notice must be given to the worker unless the action is based on his actual income.
5. Insurer's Notification of Acceptance, Resumption, Termination or Modification of Weekly Compensation (Form 107):
This is used as a notice to terminate or modify weekly WC payments, outside the pay without prejudice period.
6. Employee Claim Form (Form 110):
When the worker’s claim was denied (or WC was reduced or stopped by the carrier) this form is filed by the worker to request a judicial proceeding before a judge.
7. Agreement to Pay Compensation (Form-113):
All cases involving payment for Section 36 injuries (Specific injuries) must be reported to the DIA using this form.
8. Employer's Consent to Lump Sum Agreement (Form 116a):
Effective 12/24/1991 on, in most cases an employer must approve lump sum proposals. If the employer has approval authority and does not agree to approve the lump sum, then the proposal does not proceed. This form must be filed at the lump sum conference.
9. Agreement for Redeeming Liability by Lump Sum (Form 117 and 117a):
These forms are used for lump sum settlements. Form 117 is used for injuries on or after 11/01/1986 and Form 117a is used for injuries before 11/01/1986.