Articles Posted in Workers’ Compensation

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Workers’ compensation injuries often involve individuals who work for companies that perform contract tasks for other entities. Workers’ compensation is designed to provide financial relief to an injured employee, while removing the possibility of extensive litigation for the employer. In other words, if an injured worker obtains Massachusetts workers’ compensation benefits, she or he is generally precluded from pursuing negligence damages in a civil suit with the employer that carries the insurance. However, if another party is either partially or fully responsible for the injuries, such as a contractor, the employee can pursue civil action against the third party in addition to the workers’ compensation benefits received.

Massachusetts General Laws, Ch. 152, Section 15, allows an injured employee to receive workers’ compensation from his or her employer, but it also provides the employer’s insurer the opportunity to place a lien over any third-party settlement for its payment to the employee. This statute allows the insurer to recover costs already paid to the employee and includes the ability to offset future compensation benefits. The injured employee receives the remaining amounts in addition to amounts he or she paid toward costs from the third-party settlement.

A recent Massachusetts Appeals Court case provides an example of how far insurance companies will go to recoup the costs paid to an injured employee. In DiCarlo vs. Suffolk Construction Company, an injured worker received workers’ compensation benefits and then sued the owner of the building and received a settlement from the third-party tortfeasor. Part of this settlement was allocated as non-economic damages to the injured employee for pain and suffering and lack of consortium for his spouse. The employer’s workers’ compensation insurer attempted to file a lien under G. L. c. 152, § 15, with the insurer insisting that the lien applied to the non-economic damages. The Appeals Court disagreed and ultimately allowed the injured worker and his spouse to keep the portion of the settlement allocated as non-economic damages.
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When accidents happen at the workplace, the injured person has no control over the severity of the injury and whether or not he or she suffered from other medical ailments independent of the workplace. Pre-existing conditions often present large hurdles to obtaining workers’ compensation benefits. While fault or negligence does not have to be shown, the injury must have occurred while furthering the business of the employer. Complex medical records and expert testimony from physicians or other medical professions may be necessary to show the origins of the injury and what type of medical treatment will be necessary to make the employee whole from the work-place accident.

In Lastih v. Erickson Retirement Community, a bus driver for a retirement community injured her lower back while lifting a resident’s walker. After a denial by the insurance company for benefits, she sought a hearing in front of a Workers’ Compensation Judge, where the insurance company claimed that she had pre-existing conditions as its defense. The judge ruled in favor of the injured bus driver, relying on testimony from the impartial medical examiner, who opined that she sustained lumbar and sacroiliac (lower back) strain that aggravated the pre-existing degenerative joint and disc disease in her spine. The judge found her to be totally incapacitated and ordered benefits. No party appealed this decision.

Two years later, the insurer filed to have the benefits discontinued, which was denied. The insurer then had another impartial medical examiner assess the injured bus driver. The insurer withdrew the appeal following the report, and the employee filed for total, permanent incapacity benefits. After an additional examination, reports, and appeals, the judge awarded total and permanent benefits. The judge found that the employee’s disability was casually related to the injuries she sustained when lifting the resident’s wheelchair onto the bus.
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When workers are injured in Massachusetts, they have access to different types of workers’ compensation benefits: temporary disability, permanent partial disability, and permanent total disability. When filing a claim for benefits under the Workers’ Compensation Act, there is no need to prove that a co-worker or employer was negligent. An injured worker must only show that there was an injury that occurred during the course of employment. This can require extensive medical testimony, and it usually involves a prediction about the effects of the injury upon the worker in the future.

The questions, “Is there anything I can do if my condition worsens?” and “What happens if my benefits run out?” may arise following an award of permanent partial disability. The Reviewing Board Decision of Tsitsilianos v. Worcester Housing Authority sheds some light on the process. In this case, the Board looks at two cases determining the award and claim of partial incapacity and total incapacity benefits under § 35 and § 34 benefits, respectively.

A Massachusetts industrial worker had previously been awarded payment of § 35 benefits, including medical bills and psychiatric treatment for an accident that resulted in bilateral trauma to his calf muscles and depression. However, the judge denied full disability, since the orthopedic physician opined that he could still perform full-time sedentary light work. After the employee exhausted his § 35 benefits, he refiled for total incapacity benefits, which were denied at conference. During an appeal, additional medical evidence regarding the worker’s physical injuries was submitted, but the judge determined there was insufficient proof of the worker’s mental health decline and denied benefits.
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A slip and fall in Massachusetts can lead to injuries ranging from minor cuts and scrapes to serious head, spine, and back injuries. Slip and fall injuries can occur anywhere outside the home, including shopping centers, public sidewalks, and the workplace. If civil action is taken in a slip and fall accident, the injured person typically files a personal injury suit. However, when the accident occurs in the workplace, a workers’ compensation claim must be filed with the employer, and monetary payments are handled by the employer’s workers’ compensation insurance. The recovery covers past and future lost wages and payment for medical expenses and doctors’ visits.

Insurers will often try to limit the amount of payment made to an injured worker and may utilize the appellate process to protest awards given by a workers’ compensation judge or review board. In a recent Reviewing Board Decision, Sullivan v. Centrus Premier Home Care, a recommitted decision was affirmed in favor of the injured visiting nurse. While the injured nurse was visiting a patient, she sustained injuries to her back, knee, and hip in a slip and fall accident.

At the underlying hearing, the judge, when finding for the injured nurse, relied on the nurse’s testimony of complaints of pain and physical restrictions, as well as the medical opinions of one of the physicians who testified that she sustained a traumatic strain to her lumbar spine that required surgery. The injured nurse had a previous condition, but the doctor opined that the work accident contributed to 50% of her condition. While the doctor ruled that the treatment for the spine was reasonable, he determined that the peripheral joint disease, peripheral arthralgia, neck pain, and right knee pain were unrelated to the work injury. The judge adopted these medical findings and awarded recovery for the spinal treatment and surgery. The Judge also found that the nurse was temporarily and totally incapacitated from gainful employment.
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In Massachusetts personal injury cases, an injured party must show that the other party owed a duty to them, that the party failed to uphold that duty, that the failure resulted in an injury, and the type and amount of damages suffered as a result of the injury. When an injury occurs on the job, proof of negligence or fault is not necessary for recovery, but proof of causation that the injury resulted from the workplace is required.

The Massachusetts Reviewing Board issued a ruling last month in Stephan A. Dugas v. Coca-cola that looked at whether or not an employee’s hip conditions were work-related. The employee had worked from 2003 to 2009 as a merchandiser and bulk account manager, the duties of which included stocking displays, shelves, and coolers, and moving products by lifting, carrying, pushing, and pulling carts with a non-electric hand jack. In 2009, the man sought treatment for pain in his hip and began to receive epidural steroid shots to relieve the pain. Eventually, the man received a diagnosis of congenital hip dysplasia with degenerative changes in his left hip and arthritis and osteophytes in his right hip.

The Reviewing Board Decision pointed out in its recitation of facts that the employee did not mention the hip as a work-related injury to either physician when he initially sought medical treatment. The Reviewing Board also addressed the employee’s history of playing football in high school and playing men’s field hockey three times a week until he injured his right knee in 2002. The employee filed for workers’ compensation and was denied, and he pursued compensation through a hearing. The judge, after hearing testimony from doctors, upheld the denial of payments for medical treatment. The judge ruled that the employee failed to show that the injury was the result of an industrial accident that occurred while working for his employer.
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In Massachusetts, if someone dies due to the negligence of another, recovery for damages like lost wages, loss of companionship, and funeral expenses may be available through the Wrongful Death Act. The Wrongful Death Act allows recovery if a willful, wanton, or reckless act caused the death of a person who would have been eligible for personal injury damages if he or she had survived. If there was malicious, willful, wanton, or reckless conduct or gross negligence by the at-fault party, punitive damages may be available.

Earlier this year, the Massachusetts Supreme Judicial Court issued a ruling in Estate of Moulton v. Puopolo, which prevented the estate of a counselor from pursuing damages under the Wrongful Death Act. The counselor was killed at a mental health clinic by a patient who had a long history of criminal acts and violent behavior. The pleadings alleged willful, wanton, reckless, and malicious conduct that constituted gross negligence by the collective defendants. The defendants included the directors of the mental health institution, psychiatric consultants involved in the patient’s admission, the Commonwealth of Massachusetts, and the patient himself. The pleadings claimed that the directors should have known the patient’s history of violence and that the directors failed to enact policies to handle a patient with such violent tendencies. The estate left out the hospital because the hospital was the direct employer and immune from suit under the Workers’ Compensation Act.

The director defendants appealed the lower court’s decision, which refused to extend the immunity from suit extended to employers under the Workers’ Compensation Act. The court first looked at the history of the Workers’ Compensation Act, which was designed to provide quick payment for injuries suffered by employees. In exchange for quicker, more assured recovery, employees are not allowed to pursue personal injury actions against their respective employers. Employers are provided with immunity from personal injury suits so that they aren’t entrenched in time-consuming and expensive litigation.
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Following the Newtown school shooting, Connecticut is attempting to pass into a law a bill which would cover treatment costs for mental injury stemming from the workplace. The bill will only cover future incidents of mental injury stemming from work-related trauma; however, a special fund is being planned to cover those who are suffering mental ailments as a result of the Newtown massacre.

Massachusetts covers most workplace injuries under its workers’ compensation laws, including mental injury.

Under Massachusetts law, first responders who suffer from mental illness as a result of work-related trauma (i.e. post traumatic stress disorder or PTSD) are eligible for workers’ compensation. Unfortunately, since Connecticut law does not yet cover such claims, the first responders and teachers who suffered mental injuries as a result of the shootings must rely on a special fund set up to cover the expenses of those affected.

Mental injury stemming from the workplace can be more difficult to identify than a physical injury; however, it is important to remember that such injuries do occur and are covered under workers’ compensation in Massachusetts. Mental illness can result in missed work, used sick days, decreased performance, and large medical bills, and as a result, it is important that claims be filed if the mental illness is connected to the activities performed professionally. Claims for mental injury are just as legitimate as claims for physical injury, so workers should not be afraid to file a claim if they have suffered a trauma at work leading to injury, whether mental or physical.

In Massachusetts, employees who suffer mental and/or emotional injuries as a result of a particular event or series of events can pursue a claim for a mental injury arising from such an event.

According to Massachusetts case law, there are several requirements to prove a compensable mental injury: (1) the predominant cause of the disability; (2) an event or a series of events occurring within the employment; (3) that is not a bona fide, personnel action; or (4) is the intentional infliction of emotional harm in a bona fide personnel action. See Walczak v. Mass. Rehab. Comm., 10 Mass. Workers’ Comp. Rep. 539 (1996).

Here are some helpful Massachusetts workers’ compensation links for additional reading:

Massachusetts Workers’ Compensation Guide for Injured Workers, April 2012

Hurt on the Job? Workers’ Compensation Can Help, March 2012
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Recently a man was found guilty of workers’ compensation fraud after a private investigator filmed him at the gym doing some serious weightlifting. Apparently he had a doctor’s note stating he could only lift 10 lbs. Well, this video proves him wrong. A picture may be worth a thousand words, but a video is priceless!

Committing insurance fraud is against the law. This man’s deceit and dishonesty cost him three years of probation, nine months of suspended jail time, and over $31,000.00 in workers’ compensation benefits that he must pay back.

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On April 12, 2012, Attorney James K. Meehan attended the annual National Football League Players Association (NFLPA) Workers’ Compensation Panel Meeting in Fort Lauderdale, Florida. Over several days, the group, comprising workers’ compensation attorneys nationwide, addressed issues confronting professional athletes injured while playing. This year’s meeting included lengthy discussions regarding the new collective bargaining agreement entered into by the player’s union and the National Football League.

Discussions also involved the National Football League Players Association’s (NFLPA) recent lawsuit against the National Football League for concussions. The lawsuit alleges that the league failed to disclose to players the severity of their head injuries and failed to provide adequate treatment. In addition, claims are being made that the teams forced players back into action prematurely before full recovery from their concussions. The player’s union is bringing this civil lawsuit in addition to workers’ compensation claims being made for individual players.

Attorney Meehan has been a member of the National Football League Players Association (NFLPA) Workers’ Compensation Panel for almost two decades. Over that time, he has represented numerous professional athletes who sustained premature career ending injuries. He has also represented members of the Boston Red Sox, New England Revolution, and a ballerina for the Boston Ballet Company.

The Massachusetts Workers’ Compensation Law is set forth in M.G.L. c.152. The Act provides disability benefits and medical coverage for most injuries occurring in the workplace. Types of injuries include neck injuries, back injuries, knee injuries, shoulder injuries, psychiatric/stress-related injuries, repetitive trauma injuries, and neurological disorders. Commonly, in the case of an injured professional athlete, the insurance company denies the injury and a claim is filed at the Commonwealth of Massachusetts, Department of Industrial Accidents. At this agency, the workers’ compensation claim is heard by an Administrative Judge. If benefits are ordered, then the player can receive weekly benefit checks, medical benefits, loss of function/scarring benefits, and vocational rehabilitation or job retraining benefits. The amount and length of benefits generally depends upon the severity of the injury and amount of pre-injury pay.

 
https://www.youtube.com/watch?v=fFkWTGKNLT8
 

Quite often a Massachusetts’ workers’ compensation case is resolved by way of a lump sum settlement. Generally, acceptance of a lump sum settlement of a workers’ compensation case closes out the right to receive a weekly disability benefit but leaves open medical benefits and vocational rehabilitation or job retraining benefits for two years. In the case of a permanently disabling injury, a claimant may also be entitled to social security disability benefits.
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