Articles Posted in Workers’ Compensation

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In a recent Massachusetts workers’ compensation case, the Reviewing Board analyzed an appeal by an insurer dissatisfied with a hearing decision. The insurer alleged the judge incorrectly used the wage amount of $1,726.37 to calculate the weekly wage paid to the injured carpenter. The insurer argued the employee was not entitled to the award, since there was no appeal of the conference order.  carpenter's tableThe insurer felt the employee could only use the maximum amount of $1,490.33 to calculate his entitled average weekly wage.

The injured carpenter was hurt in an industrial accident while moving a piece of machinery. The machinery began to tip, he grabbed it, and he caught his ring on the machine. The employer didn’t dispute liability and agreed to initially pay an average weekly wage of $800 a week. The injured employee eventually sought an adjustment, which was at the center of this action. The carpenter initially asked for an average wage of $1,505.09 a week, and he submitted an IRS Form 1099 for checks from his employer, payable to him for 35 out of 52 weeks prior to the injury, as proof. The claim was then withdrawn in October 2012.

In November 2012, the injured man refiled a claim for an adjustment, this time requesting an average weekly wage of $1,490.22 per week. As proof, the employee submitted the same 35 weeks’ worth of checks. This claim was also withdrawn, but he eventually refiled a year later. This third attempt at a readjustment claim was for the same amount, and this was accompanied by medical reports and a 2011 tax return. This amount was sent to a conference. After the conference, the administrative judge ordered $1,490.33 to be used as the weekly wage amount. The insurer appealed, but the employee did not.

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Injured Massachusetts employees may be surprised to learn that workers’ compensation includes benefits for psychiatric injuries. Compensable psychiatric injuries can be caused by hostile supervisors, bullying by coworkers, or traumatic events. Anxiety and depression stemming from a physical injury can also be compensated. Claims for psychiatric benefits are discussed in a recently issued Reviewing Board decision (Bd No. 0061111-12), which looked at whether or not the administrative judge erred by ceasing all claims for benefits after May 2013.Padlocked fence  The injured worker was a court officer whose duties included transporting prisoners and providing security in the courtroom. In 2012, the employee was injured by a prisoner and taken to the hospital to care for harm to his ribs, right arm, and wrist. The officer also experienced headaches and vertigo months after the incident.

The self-insurer accepted liability for the physical injuries. Benefits for those were resolved in 2013. At this conference, the employee added claims for psychiatric counseling, PTSD, and further indemnity benefits. The insurer objected, disputing the liability for the neurological injury and PTSD claim. The insurer asserted there was no causal relationship between the psychiatric injury and the workplace.

In his decision and denial of benefits, the administrative judge adopted the expert testimony opinion the employee did not have an objective neurological impairment related to the inmate altercation in 2012, as well as the opinion of another expert who determined the injured employee did not have a psychiatric condition limiting his ability to work. The judge found that the employee’s physical injuries had resolved by May 2, 2013 and that he was able to perform the full range of activities consistent with employment.

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Many types of Massachusetts workers’ compensation benefits are directly paid after proof of treatment or travel is provided to the employer’s insurer. Some, like lost wages, require the application of a formula found in Massachusetts’ General Laws. This formula takes a percentage of the highest wage paid over a period of time and divides it by the number of weeks in this period to find what the injured employee’s Average Weekly Wage payout will be. A miscalculation can cause the employee to be underpaid or overpaid for a long period of time before correction. Fragile IceMany workers’ compensation awards go before the Reviewing Board or an appellate body to see if an employee has been overpaid benefits.

This can be seen in a recent Board decision (Bd. No. 00294-13). In this case, a medical health assistant was injured after she slipped on black ice at her workplace. This accident caused an injury to her back that was treated with injections, physical therapy, and diagnostic testing. This treatment occurred over two years, beginning with care performed by a nurse practitioner and eventually leading to a consultation with an orthopedic surgeon. During this period, she performed modified work at her original position, part-time bartending, and baby-sitting. Over a year after the accident, the injured worker went to an Independent Medical Examiner, who agreed with her treating physician that she had a lumbar spine strain with a small central disc protrusion. He also agreed that the workplace injury was the major contributing cause of her disability and need for treatment. The IME opined that she could still work a 40-hour work week with no repetitive stooping and bending, along with lifting and carrying restrictions.

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Determining if an injured employee is eligible for workers’ compensation benefits is straightforward if the accident occurs at the work site. It is not as clear if the worker is injured while traveling to and from locations. Workers’ compensation benefits are awarded to those injured while performing acts for the employer in the ordinary course of business. Thus, if a position requires an employee to travel, and the employee is injured while traveling for the employer, the employee is eligible for workers’ compensation. However, a worker is barred from receiving compensation if the “going and coming” rule applies.  Book stackThis rule blocks injured workers from receiving compensation if an injury occurs while an employee travels to and from a lone, static place of employment.

Traveling employees are different, though, and this is illustrated in a recent Reviewing Board decision (Board No. 015466-13). In this case, the insurer appealed a decision by an administrative judge that awarded payment of §§ 13 and 30 medical benefits to a nurse seriously injured in a car accident. The injured worker was a psychiatric nurse who was assigned to work in Brattleboro, Vermont. The employee traveled from her home in Massachusetts to work five days a week on the night shift. The injured nurse was provided expenses for a hotel stay and meals for five days of the week. The nurse advised she did not put in for additional travel reimbursement from the employer, nor did she tell her employer whether she traveled home to Massachusetts on her off-days. The injured nurse did not think she was required to go home on those days, nor did she believe she was obligated to tell her employer any time she went home.

The senior market manager for the injured nurse’s company testified at the hearing. The manager stated she provides all traveling employees with a seven-day per diem each week unless she was told they were traveling back to the “permanent tax home.” The manager testified that while she did not assume the contracted medical staff traveled, she did provide additional per diem payments to employees who notified her they were going home to pick up clothes or traveling for a personal event.

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In Massachusetts, an injured worker can receive workers’ compensation benefits for a work-related injury that aggravated a pre-existing condition as long as the injury is a major cause of the disability. This differs from the requirements for psychiatric injuries under G. L. c. 152, § 1(7A), which place a higher burden on the injured person to show the workplace injury was the predominant contributing cause. To determine whether or not the work-related injury rises to this standard, the Administrative Judge (AJ) hears from medical experts who have either examined the worker or looked at the injured person’s records. An award of benefits hinges on whether or not there is sufficient evidence to support the claim of psychiatric disability.

In a recent case (16-P-837), the Appeals Court reviewed an appeal of a decision of the Department of Industrial Accidents (DIA) reviewing board, which reversed an AJ’s decision in favor of the injured worker.  Moving crowdThe board determined the injured woman did not show the employment-related event was the predominant contributing cause. The injured worker appealed, arguing the decision should have been affirmed, or in the alternative, recommitted to the AJ for additional findings. The claim originated from the worker’s repeated encounters with clients through the Department of Transitional Assistance (DTA) who were verbally hostile and threatening. The woman sought psychiatric treatment in 1997 after working there for several years, but she had a stressful incident in 2013 when she was threatened by a client during an interview. The worker sought help from a supervisor but received no support. Paralyzed by anxiety, the injured worker did not return to work.

Prior to her employment, the woman suffered physical and emotional abuse from her mother. The woman did not have any family support, nor any mental health treatment during this period. During the hearing with the AJ, the independent medical examiner testified that her childhood experiences and experiences at work contributed to her diagnosed mental health disorders. The doctor affirmed that she was medically disabled and that the cause of this disability stemmed from the combined experiences. The doctor testified that after several years of traumatic incidents, the threatening client at work in 2013 was the “proverbial straw that broke the camel’s back.” In its review, the board concluded this was not enough to show the work-related incidents were the predominant cause of her disability.

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Injured employees may receive compensation beyond the emergency room bill and calculated wages under the Workers’ Compensation Act. They may also receive payments for prescriptions and therapies for persistent medical conditions. In Magraf’s Case (16-P-364), the appellate court reviewed an award of prescription drug coverage and reimbursement for medical appointments under G. L. c. 152, §§ 13(1) and 30 following a lump sum settlement for an injury. Prescription PillsThe insurer raised an affirmative defense that the employee had a pre-existing condition, but the Administrative Law Judge chose to order payment anyway, citing the opinions provided by the Independent Medical Examiner (IME). The Reviewing Board upheld the ALJ’s determination, and the following appeal ensued.

The existence of a pre-existing condition does not prevent compensation for a work injury. Massachusetts’ General Laws allow for the compensation of an injury as long as the work injury was a major cause of the disability. It does not have to be the predominant cause of the disability. An employer or insurer may raise a pre-existing condition as an affirmative defense to the payment of benefits, but they bear the burden of showing the pre-existing condition is not covered. When assessing the Reviewing Board’s decision, the Appeals Court looks at whether or not the decision was supported by substantial evidence, whether or not the Board made an error of law, or whether the Board issued a decision that was arbitrary and capricious.

The insurer argued that the ALJ failed to make findings regarding the nature of the injured worker’s pre-existing condition. The ALJ felt the issue of causation had been fully litigated and satisfied by the lump sum agreement. To avoid re-litigating causation, the court ruled the insurer must meet a new burden of production. The Board agreed with the judge’s assessment, determining that the judge rightfully adopted the IME’s opinion that the work injury was still a major cause of the injured worker’s disability and need for treatment.

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After a workplace injury, a worker is entitled to receive a weekly wage that’s calculated by plugging the worker’s earnings into a formula under Massachusetts G. L. c. 152, § 35D. A partially incapacitated worker may receive 60% of the difference between the average weekly wage before the injury and the weekly wage the worker is capable of earning after the injury. This is not to exceed 75% of the amount she or he would receive if deemed totally incapacitated. A recent Appeals Court case, Lavalley’s Case (16-P-46), assessed an earning capacity calculation for a worker suffering from bilateral carpal tunnel syndrome.

In this lawsuit, the administrative law judge (ALJ) initially ordered the insurer to pay $235.43 a week in partial benefits. keyboard typingHowever, the order did not include the calculation under G. L. c. 152, § 35D, and both parties appealed to the Reviewing Board. After the Reviewing Board remanded the lawsuit down to the ALJ for further findings of fact, the ALJ found that the insurer was only required to pay $121.91 from the day the injury began on June 1, 2011 to December 31, 2014. The insurer was then required to pay $97.91 from January 1, 2015 forward. The worker appealed this order to the Reviewing Board, which affirmed the ALJ’s calculation. The injured worker then appealed the Reviewing Board’s decision.

In its review, the Appeals Court first established that the decisions of the Reviewing Board are not overturned unless there was no evidence supporting the ruling, or the decision was tainted by errors of law. At the initial hearing, the ALJ made a finding that the injured worker could perform light work and granted her the maximum amount of weekly wage under the law. However, the ALJ did not attach the corresponding calculation with this finding. On remand, the judge used the same evidence that was presented at the first hearing but came to a different conclusion and ordered the lesser amount. The injured worker argued that the second order went against the first and that the ALJ was obligated to hear new evidence.

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Pre-existing conditions can complicate an award of workers’ compensation benefits. In the event a pre-existing condition occurs, General Laws c. 152, § 1(7A) only requires the new injury to be compensable if the work injury was a major but not necessarily predominant cause of the disability. A recent case (Bd. No. 10832-12) addresses what must be shown when an employee who suffered a back injury had a pre-existing condition related to a prior back injury.

The employee’s medical history began in 1991 following an injury while working at a grocery store.Resting Gavel In 1992, the employee had surgery to relieve pressure on his spinal cord, formally known as a laminectomy. In the following year, the employee worked for a different company, performing various jobs until he was laid off in 2009. The employee was re-hired in 2011 to work on a large order using a “4-slide” machine. During this period, the employee could not pinpoint a back injury from a specific incident, but he claimed that an injury occurred while he performed repetitive work for this employer, lifting and carrying items.

At an early hearing, the judge ordered temporary total incapacity benefits but did not order the insurer to pay for the back surgery. The conference order was appealed by both parties, and the employee was seen by an impartial medical examiner. This evaluation was the only medical evidence submitted. The judge determined at the hearing that the employee sustained an injury between August 2011 and March 2012, and the injury sustained by the current employment, combined with the pre-existing injury, caused or prolonged treatment and disability. The judge found that the injury was a major but not necessarily predominant cause of the injury and ordered the payment of temporary and permanent total incapacitation benefits. The judge also ordered the payment of medical expenses, including those for the employee’s back surgery in 2013.

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One workers’ compensation benefit that may not be as well known is the benefit provided for harm to a worker’s mental health. Like physical injuries, these injuries must be caused by an accident that occurred in the workplace or during the performance of work-related duties. The Reviewing Board decision of O’Rourke v. New York Life Insurance (Bd No. 012706-11) reveals the considerations an ALJ must make when determining whether or not to award medical and total incapacity benefits for injuries that affected both physical and mental health.

In this lawsuit, the injured worker was a vice president of marketing and held a Master’s degree in Science and Administrative Studies. She was injured when a magnet weighing half to three-quarters of a pound fell from a door jamb onto her forehead. The woman was taken to the hospital and diagnosed with a concussion. MagnetHer injuries produced severe headaches and tingling along the left side of her nose and face, around her jaw, and up the other side of her face. The woman additionally suffered lower back and neck pain. She returned to work within a week part-time, and eventually she returned full-time. However, the pain, combined with depression and anxiety, prevented her from concentrating and fully functioning at her job.

The injured worker attempted various schedules, both part-time and full-time, while also seeking treatment for her numerous injuries. Two surgeries were performed in order to reduce the headaches and pain in her jaw. While the surgeries were partially successful, they failed to fully remove the pain in her jaw and teeth. After three years passed, the worker’s surgeon opined that she was unable to continue working. The worker claimed partial disability benefits from August 1, 2013 to September 15, 2014, and then total disability from September 16, 2014 onward. The judge ordered that the benefits be paid based on her earnings from August 1, 2013. All parties appealed.

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Massachusetts General Laws c. 152, § 11A(2) of the Workers’ Compensation Act states that an impartial medical examiner is to be used whenever there is a dispute within a claim or a complaint over medical issues that is the subject of an appeal. In order to offset the cost of the medical examination, the injured worker must submit a fee equal to her or his average weekly wage in the Commonwealth at the time of the appeal. A failure to do so can quash the appeal, as seen in the Reviewing Board decision of Saini v. Jeffco Fibers, Inc. (Board No. 044894-91).

In this case, the employee had a work injury in 1991 and settled four years later for $145,000. Eleven years after the settlement, the injured worker filed a claim for the payment of medical bills, which was denied by the ALJ. Resting GavelA timely appeal was filed but was not accompanied by the appeal fee. Notice was sent to the claimant’s attorney, but the fee remained unpaid. A month after the notice of the overdue fee was sent, the case was withdrawn. The injured employee’s attorney complained after the withdrawal, but the ALJ kept it in place, pointing out that the impartial medical examination was not waived by the insurer. A second and third claim were filed but were also withdrawn. Eventually, at another hearing, an ALJ formally denied and dismissed the claim for medical benefits, tying it back to the original submission and pointing out that the failure to pay the fee amounted to an acceptance of the order under General Laws c. 152, § 10A(3).

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