Workers' Compensation

Many people are surprised by the notion that an individual injured in the workplace would need the assistance of a law firm. After all, isn’t workers’ compensation a “no-fault” insurance system in which coverage is automatic? The answer to that question is yes and no.

It’s true that fault is not a pre-condition to entitlement to workers’ compensation benefits. In that sense, it is different than our tort system, in which negligence or other “at fault” conduct must be proven before compensation is due an injured party. However, it is certainly not true that coverage is automatic. On the contrary, it is exceedingly common for claimants to be denied benefits, and in many of those instances, the claimant will actually bear the burden of proving his or entitlement to benefits.

When a claim is first presented, workers compensation insurance companies do a thorough investigation, looking for reasons to deny coverage. Questions which might trigger a denial include the following:

• Did the accident actually happen?
• Did the accident happen in the manner or in the place alleged?
• Was the injured person an employee or an independent contractor?
• Was the employee “in the course of employment” at the time of the accident?
• Did the “injury arise out of” the employment?
• Did the employee suffer a pre-existing condition?
• Is the employee’s injury disabling? 

Those are just a few of the questions that trained workers’ compensation adjusters examine before deciding whether to “accept” a claim. Each one of them can involve complex issues of fact and law, so such question are often the subject of vigorously contested litigation. In Massachusetts, that litigation is conducted through administrative proceedings at the Department of Industrial Accidents’ Dispute Resolution Division. In New Hampshire, the Department of Labor’s Workers’ Compensation Division conducts such proceedings. The rules and regulations governing the proceedings in both states are lengthy, complex and subject to frequent change. Having an experienced workers’ compensation lawyer in your corner is therefore essential to secure all the benefits to which you, as an injured employee, are entitled. You can be sure that the insurance company will have an experienced attorney in its corner.

The good news is that injured employees do not have to pay up-front out of their own pockets for the services of an attorney! This is true in both New Hampshire and Massachusetts; in both states, attorneys’ fees are specifically regulated by statute. Happily for employees, both states provide that workers’ compensation attorneys must succeed in winning benefits for their employee clients before they are entitled to any fee at all. Even then, it is usually the insurance company that is required to pay all of the successful employee’s attorneys’ fees, a system known as “fee shifting”*. So, not only is it wise for an injured employee to consult an experienced workers’ compensation attorney, but it is one of the best bargains anywhere!

​*In certain cases, attorneys in New Hampshire are entitled to a fee based on a percentage of an employee’s retroactive benefits, while in Massachusetts, insurance companies are sometimes allowed to deduct a small percentage of the fee it owes to an employee’s attorney from the employee’s current benefits. But those are small exceptions to the general rule of “fee shifting”, and in each instance, the fee is payable only if and when the attorney has prevailed on the client's’ behalf. In most instances, the successful claimant’s entire attorney’s fee is paid by the insurer.