Articles Posted in Workers’ Compensation

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. However, 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. 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. Her 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. A 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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During the course of a career, the employing company may re-organize different aspects of its business, including its workers’ compensation insurer. Workers’ compensation law provides for this situation, in the event that a long-term worker suffers an ongoing injury with another injury. The successive insurer rule requires an insurer to pay for the compensation of all of the injuries that a worker suffers, even if it was not the insurer when the original incident or ongoing injury occurred. As long as the recent injury has a causal relation to the disability claimed, the insurer must cover the risk. The insurer must take the employee “in the condition in which he finds him,” so the provision of benefits is streamlined and expedited.

In Linton v. G.P.C. International (Bd. No. 035380-10), the second insurer appealed a decision granting medical benefits for a repetitive injury to an employee’s right shoulder. The employee worked for the employer since 1996, performing repetitive, heavy lifting of 75 to 100 pounds as a paper processor and machine operator.  He began having pain in 2003 in his right arm, which resulted in physical therapy. Seven years later, the worker returned for shoulder pain care and could not work for two months. During this period, he received weekly workers’ compensation benefits. The first insurer paid for medical expenses, including physical therapy and a TENS unit he still uses.

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As one nears retirement, many decisions await from family to financial matters. A recent federal appellate decision, O’Shea v. UPS Retirement Plan (No. 15-1923), reveals the importance of careful estate planning alongside serious illnesses or retirement. In this case, an employee, diagnosed with cancer, died one week before his official retirement date but after his final day of work. Following a diagnosis in the previous year, the employee originally planned to retire at the end of the calendar year. The employee met with a human resources supervisor, who advised him to take his accrued time, which pushed back his official retirement date. This advice given was standard practice, and the HR supervisor had no knowledge that he was terminally ill.

Following the submission of his retirement application, the employee was told that his annuity start date would be March 1, 2010 after his official retirement on February 28, 2010. The employee chose the Single Life Annuity with 120-Month Guarantee and named his children as the beneficiaries. The Guarantee allowed him to receive payments of over $4,000 each month for 10 years. If he died during this term, his listed beneficiaries would receive the payments. Neither the HR supervisor nor the retirement benefits applications made it clear that he needed to live until the annuity start date on March 10, 2010 for the guarantee to be realized. The employee was unaware that he risked forfeiting his payments by delaying the retirement date.

While the retirement application did not explicitly lay out the requirements in the body of the application, it did note that the benefits plan designations are subject to the terms of the Plan. The Plan states that payments can be made to the beneficiaries if the participant dies before the first payment but after the annuity starting date. The only exception listed is for a spouse or domestic partner, who would be entitled to receive a pre-retirement survivor annuity. In addition to the annuity plan, the employee also participated in the Special Restructuring Program, which provided a year’s compensation in exchange for signing a release of claims and retiring. The employee accepted this with his attorney on February 12, 2010 for a single pre-tax payment of $98,800. The release included his employer and “all related companies,” which included the benefit programs, as well as any claims of which he might not know.

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When you work at a physically intensive workplace for a long time, minor to moderate individual injuries that occur over several years can become a sustained injury. A recent Reviewing Board Decision, Breire v. Lowell General Hospital (BOARD NO. 036471-11), highlights considerations made by deciding authorities in Massachusetts’ workers’ compensation system. In this case, the injured employee worked for nearly 40 years as a certified nurse’s assistant (CNA). Throughout this time, she incurred several injuries, some from the workplace and some from her personal life.  Those of note included a workplace injury in which she hurt her back lifting a 350-pound man into a car, as well as car accidents outside work in which she hurt her back and neck. The injured CNA also sustained multiple injuries while working for the employer in this case, hurting her back, hip, and neck on different occasions over 10 years.

The injury that led to this litigated claim occurred when she helped her co-workers lift a 400-pound patient. The CNA suffered hand, neck, and back injuries. On the date of the injuries, she finished her shift, and she returned to work the next day but eventually sought a leave of absence from her job. The injured worker advised her employer that she could no longer perform her duties, due to the combination of injuries suffered. The employee sought temporary total disability benefits, among others. The insurer filed a denial, arguing that the injury suffered was not a workplace injury. After a conference and a hearing, the Administrative Law Judge (ALJ) awarded the injured CNA § 34A (total permanent disability benefits), finding that the last injury was the major cause of her disability.

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The Massachusetts Workers’ Compensation Act, under G. L. c. 152, § 31, provides benefits to the spouse of a deceased worker whose fatal injuries were caused by the workplace. The statute allows unmarried widows or widowers to receive 2/3 of the deceased’s average weekly wage. This benefit was designed to help living spouses who were not able to support themselves, and it can be reviewed at any time for cost-of-living increases, reductions, or termination.  In Freedman vs. Suffolk County Sheriff’s Office (Bd No. 012354-97), the wife of a deceased worker appealed the termination of her spousal benefits after an Administrative Law Judge (ALJ) ruled that she was fully self-supporting.

To determine whether or not the wife was self-supporting, the ALJ conducted an in-depth review of her living expenses. The ALJ found that her qualified weekly expenses were $768.50, which were more than covered by her salary of $894.97 a week. The woman had been receiving $751.04 from the § 31 benefit, and she appealed the ALJ’s finding, arguing that she was not fully self-supporting because she was putting her daughter through college.

The Board determined that the judge’s method of calculations was correct to determine what was “necessary and reasonable.” However, while the Board emphasized there is generally a high amount of deference to ALJ findings, it did not agree with the exclusion of college expenses. While there is not a “redline” for determining reasonable and necessary expenses, consideration is given to accustomed standards of living. The Board went on to hold that college tuition must be factored into a determination of whether a widow or widower is fully self-supporting.

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As an injured Massachusetts worker, you want to ensure that all your benefits get paid by the entity or entities responsible for paying them. The Reviewing Board decision published this month, John Pastore v. Polaroid Corp., Inc. (Bd. Nos. 004718-89, 029283-13, 012201-13), dissects an agreement between a self-insured employer and an excess insurance carrier regarding the § 34A benefits and § 34B cost of living adjustments (COLA) of an injured employee. The worker in this case was injured in an industrial accident in 1983. His employer was a licensed self-insurer, obligated to follow the statutory requirements that come with being its own workers’ compensation insurance carrier. These included purchasing extra insurance as back up to help meet their workers’ compensation obligations through a “reinsurer.”

After the injury, the employer agreed to accept the claim and pay the weekly benefit, eventually agreeing to pay for the permanent and total incapacity (§ 34A) benefits at around $297.85 a week. The reinsurance company had a $250,000 policy, which the employer tried to utilize. The reinsurer initially denied the claim, since the employer voluntarily placed the employee on the § 34A benefits. Eventually, the employer and the re-insurer agreed to a settlement of $155,000 to reimburse the employer’s obligation to the injured worker. Neither the employee nor the Dept. of Industrial Accidents was made aware that this settlement occurred in 1998. Both became aware of this agreement after the employer’s bankruptcy action and exhaustion of bond set aside for benefits payment. The employee then filed suit for payment to resume.

At the hearing, the Administrative Law Judge (ALJ) held that the employee was now “uninsured” and that the Workers’ Compensation Trust Fund (WCTF) was obligated to pay the benefits. The WCTF, on appeal, disagreed with the assessment, arguing that the reinsurer was the entity obligated to pay the benefits to the injured employee. The Reviewing Board agreed, reversing the prior decision and directing the re-insurer to pay the benefits. In its analysis, the Board first pointed out that the WCTF was not created until after the worker was injured, and the injured worker would not be considered to be “uninsured” because the employer was a self-insurer. The Board then pointed out the difference between standard insurance agreements for settlement and the obligations of workers’ compensation insurers under Massachusetts law. Self-insurers are regulated by the Department of Industrial Accidents, rather than the Commissioner of Insurance. Workers’ compensation insurers are all beholden to the intent of the Workers’ Compensation Act, which was designed to protect injured workers. The Board found that the agreement reached between the now-bankrupt employer and the re-insurer was valid and that the re-insurer was responsible for both the § 34A and the COLA benefits.
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When an injury occurs in a Massachusetts workplace, an injured employee can receive payment for the medical treatment of the injury as long as it was related to the workplace accident. In Thomas A. Novack’s Case (15-P-1090), a nursing home employee sustained a lower back injury while on the job. He eventually received a lump-sum payment with an agreement that the insurer would keep paying for medical treatment that was adequate, reasonable, and stemming from the workplace injury. The injured employee received treatment from various providers after the settlement, and those costs were paid by the insurer for the next five years. The insurer then ceased payment, and Medicare began paying for all of the medical treatment received thereafter.

The employee filed for reimbursement from the Department of Industrial Accidents for the treatment paid for by Medicare. The Administrative Law Judge (ALJ) pondered whether the injured employee could even seek reimbursement when a third party made the payment, but the ALJ ultimately stopped at the finding that the treatment was not adequate, reasonable, or causally related to the workplace injury. The ALJ also noted in the decision that there was a lack of proof that bills were submitted to the insurer before they were given to Medicare. The request for reimbursement was denied, and the injured employee appealed.

The Appeals Court looked at the conclusions of the ALJ to see if the evidence supported the findings. The ALJ did not find the treating physician’s letters persuasive in their attempt to show the connection from the back treatment to the workplace accident. The appellate court felt the ALJ documented sufficient evidence to rule against the injured employee. The ALJ’s ruling in favor of the insurer was affirmed.
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