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Fall Update: New MA Maximum and Minimum Comp Rates announced effective 10/1/2018, plus Attorney Patrick Battersby, Jr. joins TKCK

| Oct 9, 2018

The Massachusetts Department of Industrial Accidents has announced the new State Average Weekly Wage, the Maximum Compensation Rate, and the Minimum Compensation Rate for injuries on or after October 1, 2018.

The Maximum Compensation Rate is $1,383.41 for injuries on or after October 1, 2018.

The Minimum Compensation Rate is $276.68 for injuries on or after October 1, 2018.

With respect to the COLA multipliers under Section 34B, for all dates of injury on 12/24/1991 and after , use the multipliers in column 8 times the correct weekly base benefit.

With respect to the COLA multipliers under Section 34B, for all dates of injury prior to and including 12/23/1991 , use the multipliers in column 5. Remember that the new adjusted weekly benefit after 10/1/2018 can never exceed $1,383.41, regardless of date of injury.

Please be sure to verify you have filed for COLA reimbursement on claims for dates of injury prior to and including 12/23/1991 within two years of the date payments were made.

This Circular Letter also updates the Attorneys’ Fee Schedule under Section 13A for all proceedings before the DIA effective 10/1/2018.

Please call Attorney John Canniff at (617) 242-9600 x 207 ( [email protected] ) or Attorney Ryan Schaiberger at (617) 242-9600 x 268 ( [email protected] ) with any questions.

The Circular Letter #353, the Annual COLA/SAWW announcement dated October 9, 2018 (effective October 1, 2018), published by the DIA today, is attached here for your review.

To determine the Adjusted Benefit for COLA payments, you multiply the Base Compensation rate (§§ 34A or 31) by the multiplier that corresponds to the date of injury. See § 34B(b).

For instance, for dates of injury between 10/01/2000 and 09/30/2001, the multiplier is 1.3304 x the Base Benefit = Adjusted Benefit (the increased difference is the Supplemental Benefit).

Below is the specific COLA statute, M.G.L. c. 152 § 34B:

Section 34B: Review date; supplemental benefits to Sec. 31 or 34A

Section 34B. October first of each year shall be the review date for the purposes of this section.

Any person receiving or entitled to receive benefits under the provisions of section thirty-one or section thirty-four A whose benefits are based on a date of personal injury at least twenty-four months prior to the review date shall have his weekly benefit adjusted, without application, in accordance with the following provisions; provided, however, that no increase in benefits shall be payable which would reduce any benefits the recipient is receiving pursuant to federal social security law.

(a) The director of administration shall determine the percentage change between the average weekly wage in the commonwealth on the date of the injury and the average weekly wage in the commonwealth on the review date. For purposes of this section, no increase in the average weekly wage in the commonwealth shall exceed the lesser of the following: (i) the percentage change in the most recent annual consumer price index calculated by the Bureau of Labor Statistics of the United States Department of Labor for the northeast region for all urban consumers; (ii) five percent.

(b) The death benefit under section thirty-one or the permanent and total disability benefit under section thirty-four A that was being paid prior to any adjustments under this section shall be the base benefit. The base benefit shall be changed on each review date by the percentage change as calculated in paragraph (a); the resulting amount shall be termed the adjusted benefit and is the amount of benefit to be paid on and after the review date. If the adjusted benefit is larger than the base benefit, the difference shall be termed the supplemental benefit. In no instance shall the adjusted benefit under this section be greater than three times the base benefit.

(c) The supplemental benefits under this section shall be paid by the insurer concurrent with the base benefit. Insurers shall be entitled to quarterly reimbursements for supplemental benefits, pursuant to section sixty-five, for cases involving injuries that occurred on or before October first, nineteen hundred and eighty-six, and for those cases occurring thereafter, to the extent such supplemental benefits are due to the increase of greater than five percent in the average weekly wage in the commonwealth in any single year. No self-insurer, self-insurance group or municipality that has chosen non-participation in the assessment provisions for funding such reimbursements pursuant to section sixty-five shall be entitled to such reimbursements.

Below is the Adjudicatory Rule of the DIA, 452 C.M.R. 3.03:

3.03: Reimbursement of Cost of Living Adjustments

(1) A person entitled to receive yearly increases in benefits under M.G.L. c. 152, § 31, pursuant to St. 1982, c. 663, § 1, shall continue to receive said benefits on or after November 1, 1986 and shall not be eligible for benefits pursuant to M.G.L. c. 152, § 34B. For the purposes of M.G.L. c. 152, § 65(2)(a), “adjustments to compensation pursuant to M.G.L. c. 152, § 34B” shall not include benefits which are paid under M.G.L. c. 152, § 31, pursuant to St. 1982, c. 663, § 1. Any overpayment by an insurer or self-insurer resulting from the promulgation of 452 CMR 3.00 shall be recovered only through the use of future credits and not through a reduction of benefits currently paid.

(2) The initial increase in benefits under M.G.L. c. 152, § 34B shall be payable on the first October 1 st subsequent to the date marking the 24-month anniversary of the date of injury. If the date marking the anniversary falls on a review date, the increase is payable as of that review date.

(3) A party requesting reimbursement pursuant to M.G.L. c. 152, § 65(2)(a) or § 65(2)(b), shall file a form prescribed by the Department, received and date stamped by the Department no later than two calendar years from the date on which the benefit payment, for which the reimbursement request being filed, was due.

(4) An employee receiving benefits under M.G.L. c. 152, §§ 31 or 34A, who has received a written request from an insurer, shall cooperate with the insurer in obtaining or providing any information from the Social Security Administration necessary to the calculation of any adjusted benefits that may be due under M.G.L. c. 152, § 34B. No insurer shall be required to pay adjusted benefits until all necessary information is available, provided that the insurer has made a good faith effort to obtain that information.

The following is the information pertinent to CR-28 forms. The links will get you to the form and the calculation sheet to be used to determine if there is a partial or total offset.

CR-28 – Massachusetts Workers’ Compensation COLA Data Form

The following information is provided for use in determining if the offset applies to COLA benefits due to receipt of Social Security benefits. Click to access the COLA Offset Worksheet .

The Massachusetts workers’ compensation law provides for a Cost-of-Living Adjustment payment for certain WC recipients. The COLA applies to workers when have collecting benefits for a specific period of time, and is payable as long as the increase would not cause additional offset in SSA benefits.

To assist WC insurers to determine if a COLA is payable, the SSA provides disability benefit (DIB) payment information to them upon request, via the state’s Form CR-28 – COLA Data Form.

DIB payment information requests for a worker receiving WC benefits under Massachusetts law should be sent to:

Social Security District Office
10 Causeway Street, Room 148
Boston, MA 0222-1213

There are a couple of misconceptions about the payment of COLA.

Section 34B states that COLA “shall be paid without application” subject to a determination of COLA offset by Social Security Benefits. This is where Rule 452 CMR 3.03(4) comes into play and the insurer and the employee are supposed to work cooperatively to obtain and ascertain the COLA offset information.
  • The primary class of benefit recipients are those collecting §34A Permanent and Total Incapacity and §31 Dependency benefits.
  • COLA is not payable until the first October 1st which is more than two years after the date of injury.
  • A §34A recipient below age 62 and on SSDI, not SS retirement, is within the class of individuals that absolutely require a CR-28 each year.
  • A §34A recipient above age 62 and converted from SSDI to SS Retirement does not experience a COLA offset. Send them a CR-28 only to confirm that SS Retirement benefits are being paid.
  • A §34A recipient above age 65 is probably on SS Retirement and therefore not subject to COLA offset.
  • There is no offset on §31 Dependency (widow’s or other dependents’) benefit cases. Any SS that may be paid is a death benefit and is not subject to the Massachusetts COLA Offset.

The best way to complete the COLA information process is to send the CR-28 to the employee, ask them to sign and send it back to you. You then submit it to the SS address above and work with the information provided. This ensures that you have the information at your disposal, not the employee’s.

A general rule of COLA offset is that it does not apply to very high and very low wage earners. They either made too much or too little for the COLA offset provisions to apply. It is the blue-collar wage earner with WC weekly rates between $400 and $800 that typically experience the partial or complete offset.

Lastly, bear in mind the WC calculates a weekly rate and Social Security monthly. 52 weeks/12 months = 4.333 weeks per month

Now let’s talk about the SAWW (State Average Weekly Wage) and what it means:

The new SAWW of $1,383.41 means that it applies to all cases with an AWW over $2,305.68. ($119,985.53 p.a.)

The new Maximum partial rate is $1,037.56 (Represents a theoretical earning capacity of $576.41)

The new SAWW of $1,383.41 applies to all § 34A P&T and § 31 Dependent’s Cases with an AWW of $2,075.12.

The new Presumptive Statutory Period of Dependency under § 31 is now $345,852.50 (250 x $1,383.41)

The new minimum of $276.68 is now applicable to AWW’s that are between $461.14 and $276.68.

AWWs below $276.68 get the full AWW. ( § 34: “Unless the average weekly wage of the employee is less than the minimum weekly compensation rate, in which case said weekly compensation shall be equal to his average weekly wage.”)

The schedule for 13A(5) hearings has also gone up $92.30 to $5,881.93.

13A(4) for a liability conference increases $26.37 to $1,680.52.

13A(4) for a discontinuance denial increases $18.47 to $1,176.37.

Trust John Canniff on these two:
The COLA multipliers have gone up 1.59% for dates of injury 12/24/91 to present.
The COLA multipliers have gone up 3.39% for dates of injury prior to 12/24/91 (Same for the partial COLA reimbursements between 11/1/86 and 12/24/91)

The new Canniff Constant of 187.2 (187.2 x AWW):
[Use 312 for Max & Min SAWW cases, as well as for AWW below the minimum] of the maximum full value of 3 years of 34 and 4 years of 35 is now $431,623.92 ($215,811.96 + $ 215,811.96 ) ($71,937.32 and $53,952.99 p.a. respectively). ($1,383.41 & $1,037.56)

We are also attaching the statutory changes in the Massachusetts Minimum Wage for your convenience retroactive to 2015

The present rate is $11.00 effective January 1, 2017, increasing to $12.00 as of January 1, 2019.

One last thing, in the event that the employee is on partial, the new double SAWW figure is $2,766.82. (Section 35: An insurer may reduce the amount paid to an employee under this section to the amount at which the employee’s combined weekly earnings and benefits are equal to two times the average weekly wage in the commonwealth at the time of such reduction.)