Articles Posted in Workers’ Compensation

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The Commonwealth’s Appeals Court recently issued a Massachusetts workers’ compensation decision affirming the determinations made by the Administrative Judge and Reviewing Board granting temporary and permanent benefits to a bank teller who suffered a series of back injuries at work. The employee first reported transitory back pain in 2011, but she was asymptomatic for two years following her treatment. In 2014, she had another round of back pain after lifting several coin rolls from the floor to take to a service window. The employee managed to return to work but experienced increasing back pain for several months. The employee left to treat the pain and came back, but she eventually left for good in January 2015 after the pain refused to subside.

At the hearing, the judge found the teller suffered an industrial injury in 2014, which resulted in total disability from July 12, 2014 through November 3, 2014, and again from January 2015 and ongoing. The insurer was directed to pay the compensation for those periods as well as Coins and billspayment for the necessary medical treatment provided. The insurer appealed, arguing the Board’s decision upholding the administrative judge’s award was arbitrary and capricious, and it was not based on the evidence provided in the record.

The appellate court found the evidence, although conflicting, supported the judge’s findings and conclusions in favor of the teller. The administrative judge found the teller’s testimony to be credible and persuasive, and he adopted her account for all of the substantive points. The submitted notes and testimony from the treating and examining physicians backed up the teller’s testimony, and the accident in March 2014 was determined “with reasonable medical certainty” to be the cause of the teller’s pain. The judge adopted the opinion of the physician who concluded the teller was unable to carry out her previous work functions. While this opinion differed from the other physician’s testimony, the court found it was within the judge’s discretion to adopt one opinion over the other.

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The Workers’ Compensation Act has a provision that states that any employee who files a claim or accepts payment for a personal injury that occurs in the workplace releases their employer from any and all related claims. The Massachusetts appellate court recently issued a decision examining whether or not this provision barred a negligence lawsuit filed by an injured employee. The employee claimed he was hired as an independent contractor to work as a chef, which entitled him to pursue a tort remedy in civil court. The injured man’s case claimed he slipped and fell broken sidewalkon ice while working, which caused him to suffer a broken right ankle. The chef asserted his damages included more than $28,000 in medical bills, lost wages, permanent impairment, and physical and emotional anguish.

The chef initially filed a Massachusetts workers’ compensation claim, which was denied by the employer. The employer justified the refusal of benefits by arguing that they were not liable and that he was an independent contractor. The case was settled by a lump-sum payment and allowed for payment of medical expenses incurred up to the date of the approval of the settlement. The settlement excluded payment for future medical treatment of the injury. After the settlement, the injured person filed a negligence lawsuit against his employer. The employer moved to dismiss the action, arguing the action was barred by the settlement agreement.

The injured worker countered the claim was not barred because the Department of Industrial Accidents (DIA) never resolved whether or not he was an independent contractor or employee. The appellate court determined Section 23 of the Act barred his claim, regardless of whether a distinction was made regarding the type of employment. The employee entered into a settlement agreement option allowed by the Workers’ Compensation Act, which resolves a matter without acknowledging fault. The court compared it to a prior Massachusetts case, Kniskern v. Melkonian, 68 Mass. App. Ct. 461, 465-466 (2007), with an injured worker who claimed he was an independent contractor. In that case, the court pointed out a lump-sum settlement under the Act would not have been possible if the injured person were an independent contractor instead of an employee. Anything received under the Act can only be provided to employees, so the injured person’s ability to settle the claim results in an indirect determination he was an employee.

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Workers’ compensation benefits make a distinction between two categories – whether an injured employee was partially disabled or totally disabled, and whether the disability was temporary in nature or permanent. Benefits are calculated based on the combination the injured worker possesses. Administrative hearings are conducted to help determine which category applies, and this affects the amount of benefits received and the length of time it is provided to the injured employee.

The Massachusetts Workers’ Compensation Reviewing Board recently issued a decision that considers these distinctions. A personal care assistant suffered a workplace accident while assisting a bedridden patient. This accident caused radiating pain, beginning in Residential Careher lower back and going into her left leg and foot. She was eventually diagnosed by an impartial physician with chronic lumbar strain and left leg radiculopathy. The diagnosis also included a degenerative condition in her spine. At the hearing, it was agreed she would not be able to continue work as a personal care assistant, due to her inability to carry out the physical demands of the job.

The employee’s treating physician eventually cleared her to do light duty work “if available.” A month after that, the doctor conducted another examination and advised there was no work disposition until further workup and treatment. The judge utilized the first assessment and found the employee could perform light duty work but rejected the physician’s opinion that she could not work unless she received additional treatment. The judge adopted the opinions of other physicians who examined the employee six months prior to the treating physician’s assessment she could return to light duty. Total temporary benefits were awarded from December 2012 to September 2013 and partial disability benefits from September 2013 onward. The injured employee appealed, disagreeing with the assessment she was only partially incapacitated, based on the note regarding light duty and the physicians’ opinions given based on examinations performed six months before.

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A recently published Massachusetts Workers’ Compensation Reviewing Board decision assessed an administrative decision ordering the insurer for the employer to pay reasonable and related medical expenses under sections 13 and 30 of the Workers’ Compensation Act. The insurer appealed the decision, arguing the administrative judge erred by ruling in the employee’s favor, tablesclaiming the judge did not make consistent findings regarding the medical evidence and failed to address the motion to discontinue weekly benefits. The Board disagreed with some of the insurer’s characterizations of the findings but ultimately determined the case needed to be recommitted for additional findings of fact.

The employee is a 59-year-old woman with an associates degree, whose work history includes manual labor and desk positions. Prior to the injury central to this decision, the woman suffered an injury in the mid-90’s while working for a chain store, hurting her lower back. She was additionally harmed by a motor vehicle accident in 2005, sustaining head, neck, lower back, and shoulder injuries. The injury at hand occurred in 2014 while she was employed as a cook. Her position required her to make and serve lunch to over 100 people, lifting and washing heavy cookware before, during, and after every meal for an eight-hour period. The employee did not have issues with her low back for most of her employment until she slipped while moving food from one station to the other. While the employee caught herself before hitting the ground, she immediately felt pain in her low back. She then fell a second time on the same day. Both incidents were reported, and she received treatment for her injuries at a local hospital. The insurer provided payment for temporary total incapacity benefits following the accident. The injured worker also received acupuncture, injections, and chiropractic care, but those only provided fleeting relief.

Procedurally, the case moved forward with a hearing regarding a claim for permanent benefits. The insurer asked the judge to discontinue the temporary benefits. The judge denied the worker’s claim for section 34 benefits but did not address the insurer’s request to discontinue benefits. The judge additionally ordered the insurer to pay for a proposed lumbar surgery. Only the insurer appealed from the hearing decision. The Board felt the findings of fact were acceptable regarding the medical evidence, but it did agree the judge fell short by failing to address the insurer’s motion to discontinue benefits. The complaint in 2015 sought a discontinuance of the issued benefits, appealing a conference order that required it to pay the maximum partial incapacity benefits. Earning capacity was not formally discussed, even though the determination to deny permanent benefits included a finding the injured person could earn her pre-injury average weekly wage.

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After a workplace accident, a Massachusetts worker may have more to consider beyond the receipt of funds for lost wages and medical expenses. The Supreme Court addresses one of the related concerns in a recently issued Massachusetts workers’ compensation decision, SJC-12331. The injured employee in this case worked for a Massachusetts town’s department of public works for nearly 27 years. On the day he was injured, he began receiving workers’ compensation benefits as well as two hours per week of sick or vacation pay so that he could keep his union membership and life insurance.

The town decided to involuntarily retire the worker for accidental disability, allowed by G.L. c. 32, Sec. 7. The retirement board of the town approved the application, allowing the worker to receive his workers’ Resting Gavelcompensation benefits and supplemental pay until July 7, 2012. G. L. c. 32, § 7 permits three possible retirement dates:  the date of the injury, the date six months prior to the filing of the written application for retirement, or the date on which he last received regular compensation for his employment in public service. The date must be the latest of the three. The Public Employee Retirement Administration Commission (PERAC) decided the employee’s last date of regular compensation was July 7, 2012, using his supplemental sick and vacation pay as the basis of their decision.

The employee appealed, and the division of administrative law appeals (DALA) reversed the decision, finding the supplemental pay was not “regular compensation” as defined by the statute. Instead, DALA found the retirement date to be six months prior to the filing of the application because the “regular compensation” ended on the day of the injury, making this one the latest of the three options. PERAC appealed this finding to the next level of administrative review (CRAB), which upheld DALA’s decision. Judicial review was then sought in the civil court system. The superior court also affirmed DALA’s decision, which then was appealed once more by PERAC and moved to the Supreme Court on their own motion.

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If you are injured while at a construction site, the remedies and damages available to you may be multiple and varied. You may be able to receive workers’ compensation from your employer if you worked on site, as well as pursue damages from any independent contractor if multiple parties were responsible for the conditions that led to the injury. Many companies provide the monetary damages to the injured person by tapping their insurance benefits obtained for this exact scenario. Companies also look to the insurer to indemnify sidewalk constructionthem, or step into their shoes for the purpose of defending litigation. If an insurer refuses to provide funds, the injured person must hope the company has assets, or the ability to obtain them, to satisfy any judgment in her or his favor.

The Commonwealth’s Appeals Court recently affirmed a summary judgment granted to a corporate insurer who refused to indemnify its insured for a personal injury verdict against the company and its independent contractor in a Massachusetts construction accident case. The independent contractor appealed, arguing the insurer failed to preserve the right to exclude independent contractors during the original tort action and cannot raise it now. The contractor also argued the exclusion within the policy is ambiguous and must be construed against the insurance company. It also alleged the exclusion did not apply in this circumstance because the accident was actually caused by the policyholder.

A woman injured herself at a construction site while walking on a sidewalk, tripping and falling on a cold joint built by the independent contractor. The contractor was hired to construct the sidewalk in a residential housing project. The contractor ceased paving just short of a driveway and built a “cold joint,” or space between two batches of concrete set at different times. The injured woman sued both the independent and general contractors of the project for the negligent construction of the cold joint and failure to warn of the defect. At trial, the jury found for the injured woman, finding the independent contractor to be 55% at fault and the general contractor to be 30% at fault. Since the insurer refused to indemnify the general contractor for the judgment, the independent contractor (using its insurance policy) satisfied the full amount.

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If an employee seeks benefits for a work-related injury but has previously suffered medical ailments outside work, an insurer will likely point to the pre-existing condition to show the permanent condition was not caused by the Massachusetts workplace injury. A Massachusetts Reviewing Board decision (Bd. No. 019236-10) analyzed this scenario recently. The employee was severely injured after an attack by a patient. The worker was punched in the head, knocked down, and repeatedly kicked in his abdomen and chest until he passed out. He received medical treatment following the accident, but he still requires care for a fractured right lower leg, deep vein thrombosis (DVT) in his right leg, chronic lower leg pain and instability, and chronic lumbosacral pain.  towersThe employee has not been able to return to work since his injury.

At the first hearing, the worker was awarded permanent and total incapacity benefits (§ 34) from the date of the injury onward. The administrative judge found the injured employee’s neck pain, right knee injury, fractured fibula, DVT, and ankle pain were all caused by the workplace incident. The judge specifically found the employee’s long-term, pre-existing seizure and degenerative arthritis disorders did not worsen because of the injury and did not cause or add to any of the incapacity.

The employee’s injuries were so aggravated by the time of the second hearing that he could only stand for five to 10 minutes at a time, sit for 10 to 15 minutes at a time, and walk for 10 to 15 minutes at a time. Despite the use of a cane, his knee and leg would give out, causing him to frequently fall. The intensity of the pain also meant he suffered from interrupted sleep. In his findings on the second hearing, the judge relied upon the opinion provided by the impartial medical examiner (IME), reiterating his findings from the first hearing. The insurer appealed, raising three issues. It felt the judge improperly relied upon the IME’s opinion to find a permanent and total disability because the IME referred to the employee’s back and seizure conditions in reaching his opinion. Since the judge specifically found the § 34 benefits were NOT related to the industrial accident, the insurer argued this was inconsistent and should be thrown out.

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If you’ve been injured in the workplace, you are obligated to provide notice of the injury and notice of a claim within the statutory time limits. Massachusetts General Laws, c. 152, § 41 requires notice of an injury to the insurer or insured as soon as practicable within four years of the date the injured worker is able to connect the cause of her disability to her employment. While an injured person must provide notice, the insurer must also act if it perceives timing to be a problem.  nurse care A recent decision asserts it is the insurer’s responsibility to properly raise this affirmative defense of improper notice at the time of the hearing, rather than on appeal.

This decision originates from ongoing injuries suffered by a registered nurse. The nurse injured her neck at work in January 2007 and sought treatment at the time of the injury. She kept working but suffered increasing pain until a surgery two months later on her C5-C6 vertebrae.

Two years after this procedure, the nurse began experiencing and treating neck pain again, but she remained on the job for another three years. She eventually sought physical therapy and received corticosteroid injections. The nurse managed to return to full-duty work but left in April 2014, due to exacerbated neck pain. This resulted in another surgery on her spine the following year. She has not returned to work since the operation in July 2015.

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The Reviewing Board recently issued a decision assessing the earning capacity of an injured teacher who was awarded § 35 partial incapacity benefits, calculated with two separate earning capacities. In this Massachusetts workers’ compensation case, an elementary school teacher suffered from a strain in her shoulder after years of reaching to place supplies and drawings in an overhead bin. This teacher used the same arm to demonstrate techniques and painting at an easel. She also used this arm while manipulating the paper cutter’s heavy blade. These repeated motions caused her to develop worsening pain in the section of her arm above the elbow every time she used the cutter.

On one occasion in 2009, she felt a sharp pain in the problematic arm while using the cutter, but she failed to report the incident immediately after it occurred. She also did not mention her art easelbelief that she developed a work-related shoulder condition. The teacher continued to work until her retirement in May 2010. In September 2010, she filed an incident report for the 2009 pain, as well as the general shoulder problem related to her work.

The injured teacher did tell her primary care physician about the pain in November 2009. She was referred to an orthopedic physician and given a diagnosis of rotator cuff tendinitis. The injured teacher began physical therapy, which ended in January 2010. In August 2010, she had an MRI performed on the affected shoulder. Eventually, she sought care from a different orthopedic surgeon, who ordered a cervical MRI in February 2012, which revealed numerous problems with her spinal discs C4 through C6, predominantly on her right side. This physician continued to treat her, prescribing both prescription and over-the-counter medications.

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Obtaining all of the workers’ compensation benefits you are entitled to receive can be a long, arduous journey. This is seen in a recent Reviewing Board case in which an employee sustained work-related emotional injuries from a series of encounters with management in a three-year period. The employee was previously awarded temporary and total incapacity benefits and managed to keep the awarded benefits after the employer appealed the award.Fall hike The prior administrative judge found the work-related events were the major and predominant cause of the worker’s injury, disability, and need for treatment and exacerbated her PTSD from childhood occurrences.

During the appeal of the temporary benefits, the worker filed for permanent and total incapacity benefits to begin when the period for temporary benefits ended. The same administrative judge heard and awarded the permanent and total benefits to begin on May 13, 2012 and end on December 13, 2013. Both parties appealed. The judge heard the testimony of three lay witnesses but did not hear the medical deposition of the independent medical examiner (IME). The judge left the department, and the case was reassigned to a different judge. The parties agreed the judge could use the transcript of the last hearing in making her decision, but the injured person would testify again so that the judge could assess her credibility.

The IME re-examined the injured employee prior to the worker’s testimony before either judge and issued a report. The first judge found the report was adequate, and the medical issues were simple enough to avoid opening the medical record. Medical evidence was permitted, however, to provide proof between the date the permanent benefits were claimed and the date of the IME’s report. The second judge made similar findings and also allowed evidence for the “gap medicals.”