Articles Posted in Workers’ Compensation

In two recently released companion cases, DiCarlo v. Suffolk Construction (SJC-11854) and Martin v. Angelini Plastering, Inc. (SJC-11853), the Supreme Judicial Court reviewed whether or not liens could be placed on the recovery the injured worker receives that was paid to him or her in employee benefits. As discussed previously, the statute providing workers’ compensation benefits to injured employees exists so that the worker receives quicker payments for medical care and lost wages. Employers, by providing insurance under the law, are generally immune from suit so that the business’ time and resources are not spent defending personal injury actions. Injured workers, however, are allowed to sue at-fault third parties to recover damages incurred.

In these cases, two workers were injured during the course of their respective employments. Both men reached settlement agreements with third parties for damages, including pain and suffering, which were paid after they received workers’ compensation benefits provided by their employers’ insurer. Both cases involve the same insurer. One employee was an electrician who experienced ongoing physical and emotional suffering from a back injury. The other employee was also an electrician who suffered ongoing pain and mental anguish. Both filed suit against the construction site at which they worked, as well as contractors and subcontractors.

The insurer sought reimbursement under Massachusetts G. L. c. 152, § 15, which allows an employer to seek reimbursement if they covered costs for the employee even though another party was responsible for the employee’s injuries. In one case, the Superior Court Judge rejected a settlement offer that excluded the attachment of a lien to the pain and suffering damages, which made up 35% of the settlement. The judge in that case felt the lien attached to the whole recovery. In the other case, the opposite was true, and the judge allowed the settlement to go through, excluding any attachment to awards like pain and suffering, which was 30% of the settlement award. In this case, the insurer appealed. In the prior case, the injured employee appealed.
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During the course of your career, you are likely to have several different jobs under different employers. Injuries can occur at any of these positions, particularly ones that may exacerbate older injuries sustained during previous employment. Workers’ compensation insurance companies have often disagreed on who is responsible for paying benefits, especially permanent benefits. To assist with this scenario, the commonwealth’s workers’ compensation case law created the “successive insurer rule,” which requires the insurer at the time of the most recent injury that bore a causal relation to the incapacity to compensate the worker for her or his injuries.

The Massachusetts Reviewing Board recently issued a decision in Griffin vs. Travelers Painting Co. (BD Nos. 037293-11 and 034762-13) that reviewed who was ultimately responsible for the temporary total incapacity benefits and permanent partial incapacity benefits paid to a painter who suffered serious knee injuries over the course of his work life. The painter first suffered injuries to both his knees when he fell out of a truck, and he re-injured his knee 11 days later. The employer’s insurer paid him temporary total incapacity benefits for about five months. The painter then worked for another residential painting company that had a different workers’ compensation insurer. The painter was able to work with some pain in each knee, having “good and bad days.” While working for the second employer, the knee pain increased due to the climbing and kneeling associated with the job.

After the painter was laid off, he underwent a second knee surgery that successfully reduced his knee pain in great measure. He filed for benefits from the first employer’s insurer, which then sought to add the second insurer. The first insurer felt the worsening injuries were related to work the painter performed at his second job. Much medical evidence was reviewed by the Administrative Judge at the hearing, who adopted the testimony of the treating surgeon that the knee injuries were caused by the original accident at his first job. The first insurer appealed, and the Reviewing Board took up the appeal to consider whether or not the successive insurer rule was violated.
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In a recent Reviewing Board Decision, Harris vs. Plymouth County (BD. NO. 005307-06), the Reviewing Board looked at whether death benefits under Massachusetts workers’ compensation laws should have been awarded to the spouse of the deceased employee. The employee worked for a self-insured employer as a case-worker when he suffered work-related neck and back injuries. The injuries were sustained in the spring of 2006, and he died from acetylsalicylic acid toxicity caused by excessive aspirin ingestion four years later.

His wife sought dependency and burial benefits following his death, which were denied by the employer. The judge ordered the burial and funeral expenses to be paid but denied the death benefits. At the conference following the wife’s appeal, the wife argued that the employer’s failure to appeal the death benefits, which can only be awarded if the death is work-related, established the causal relationship for other benefits. The judge at this hearing agreed with the wife but looked more closely at whether she qualified as the employee’s dependent in whole or in part, and what amount of benefits was due.

The wife had been living separately at the time of the employee’s death, but they had only separated the month prior. The judge felt, based on the evidence, that the wife had been living apart for a justifiable cause and awarded her death benefits of $723.54 a week from the date of his death and continuing. The employer appealed the decision, but they focused on the judge’s refusal to allow them to litigate the question of whether or not the death was caused by the work-related injury. The employer’s appeal did not challenge whether the wife was a dependent at the time of the employee’s death.
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Workers’ compensation benefits include permanent and total incapacity benefits (Ch. 152, Sec. 34A of the Massachusetts General Laws), which are awarded to those who have sustained injuries so severe they prevent an employee from ever working in the same capacity and line of work. These benefits can be issued after one accident, but they can also be given after a series of workplace accidents over the course of an employee’s career. As discussed in previous posts, employers and insurance providers may contest whether or not an employee qualifies for the benefits claimed. However, if any bona fide benefits are claimed and are not paid, the injured employee may be entitled to Sec. 50 benefits under the workers’ compensation statutes. This can be seen in the recent Board Decision of Comeau v. Enterprise Electronics.

Over 20 years ago, a worker sustained a herniated lumbar disc at the L3-4 level while on the job. He was given temporary total incapacity benefits until he returned to work, and then partial incapacity benefits when he did return to work for several more months. The injured worker continued to work with back pain until nearly two years after the first accident, when he slipped and fell after climbing onto the wet running board of a truck. He then suffered another herniated lumbar disc at the L4-5 level and was taken out of work for the ongoing back pain. The injured employee has not been able to return to work since then.

After the second accident, several motions were brought by both the injured employee and the insurance company, with several hearings scheduled and rescheduled. Seventeen years after the accident, the employee filed for benefits against both insurers that provided coverage to his employer over the course of that time. One insurer denied disability and argued that the other should be responsible for benefits from a date after the second accident as the successive insurer. The judge rendered a decision that ordered the second insurer to pay the Sec. 34A benefits and the medical treatment from the second accident. The first insurer was required to pay for the medical treatment related to the first accident and for penalties due to the late and nonexistent payments for other benefits.
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To recover damages after a Massachusetts accident happens at work or in a public place, four things must be shown: duty, a breach of that duty, causation connecting the breach to the injuries, and the cost of those injuries. The first element of a personal injury case, duty, exists if the alleged at-fault party owed a duty under the law to the person who was injured. If the at-fault party fails to uphold their duty, like a reckless driver or a grocery store that left a spill on the floor, the party could be liable to anyone who suffers an injury that resulted from the breach. Once the injury is connected to the failure to uphold the duty by law, the costs associated with the injury must be shown to recover damages.

In Stefflin vs. Pinncon, LLC (14-P-1114), an injured construction worker pursued damages against the general contractor and first-tier subcontractor. The worker alleged that the contractor and subcontractor failed to provide a safe work environment. The injured worker was a drywall finisher and taper, but the other parties required him to use a scissor lift instead of a knuckle boom lift to access certain parts of the ceiling. The worker said he injured himself while using the scissor lift when he reached over the railing with the sander and heard a “pop,” suffering abdominal pain. He later underwent surgery for a large ventral hernia and suffered complications from that and additional surgeries. The worker could not return to work and claimed permanent disability.

At trial, the judge excluded results from an Independent Medical Examination (IME) from the evidence of the injuries the worker suffered. The judge ruled that they were merely cumulative of the expert and medical evidence. When the case went to the jury, the jury determined that the general contractor and subcontractor did not fail to provide a safe work environment and therefore were not negligent. Because of this finding, the jury found for the defendants, and the injured worker did not recover damages from the general contractor and subcontractor.
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When a workplace accident completely removes your ability to work, you may qualify for permanent and total incapacity benefits through workers’ compensation. These are also known as § 34A benefits. In Downing vs. Davenport Realty Trust (Bd. No. 026102-11), the board reviewed a decision awarding an employee §§ 13, 30, 34, and 34A benefits. In this case, the insurer objected to the finding of the administrative judge, who relied upon the testimony of the injured employee and the testimony of a doctor who examined him.

The employee sustained a work-related L4-5 disc herniation. He was 63 years old at the time of the hearing, and he had spent most of his work life at unskilled to semi-skilled employment in physically demanding occupations. During the administrative hearing, the injured worker testified that he had previously been able to do heavy work, including lifting up to 200 pounds, but now he had trouble lifting as much as 10 pounds. The judge made a formal finding that the employee’s pain disturbed his sleep and that his herniated discs were related to an injury sustained at work.

The judge did stop short of adopting the examining doctor’s opinion on the extent of the injured worker’s disability. Instead, she relied upon a separate testifying doctor’s opinion, which concluded that he was totally disabled from work. The last thing considered was the testimony of a vocational rehabilitation expert, who opined that the injured employee could not earn wages due to his work-related injury. Lost wages were awarded for a year, and § 34A benefits were awarded following that period.
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After a workplace accident, an injured worker can file a claim for lost wages in addition to payments for medical expenses. The Commonwealth’s statute provides a formula for calculating the wages, which incorporates the “average weekly wage” (AWW). These are known as § 34 benefits. In a recent board decision, Harris v. Mass. Gen. Hosp. (Bd. NO. 033040-11), an injured nurse sought to increase her § 34 benefits when she sustained a fractured kneecap after slipping on some wet flooring. She had been promoted and was scheduled to begin her new position around the new year, which included increased wages. Her injury occurred right before she was scheduled to begin her new position.

Immediately following the accident, the nurse sought lost wage benefits. She was granted them, based on the wage she was making prior to the fall. The injured nurse then filed a claim six months after the accident to obtain a retroactive readjustment and reinstatement of her § 34 benefits, using the new salary that would have begun two weeks after the accident. The judge awarded her the higher amount, concluding that the law provided him the flexibility to calculate the AWW using a wage that would have been earned during the time following the accident. The hospital, who was self-insured, appealed the decision.

The reviewing board agreed with the hospital’s argument that the AWW is not calculated based on future wages, even if they are “certain” in this case because the injured nurse was already promoted to a position with a known wage. The reviewing board analyzed the history of prior cases and decisions, which have used a number of ways to calculate future wages, but only wages made before the accident. Examples included using four weeks of past wages, using two weeks of past full-time wages, and even using just one day of full-time wages when an employee changed from part-time to permanent full-time on the day of the accident. The board concluded that Massachusetts law allows for all types of full-time wages to be considered, but only if they had been earned prior to or at the time of the accident. The board felt that the definition of the AWW could not be stretched to include wages that have not yet been earned.
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The Massachusetts Workers’ Compensation Act was designed to provide prompt financial relief to an injured worker or deceased worker’s family if a work-related accident occurs. Workers’ compensation claims and appeals are handled through a separate system and do not go through any of the standard civil court processes until all the administrative portions are concluded. Recently, the Appeals Court in Merchants Insurance Group vs. Spicer (14-P-798) ruled in favor of the injured worker after an insurance company attempted to stop benefits through an action in Superior Court.

The worker was seriously injured while working as a landscaper and sought workers’ compensation. His hand was dismembered by a log splitting machine. His medical bills were over $700,000, and his treatment was ongoing. The insurer for the employer providing the benefits contested the claim, but the administrative judge for the Department of Industrial Accidents (DIA) granted the injured landscaper temporary total incapacity and medical benefits, pending a formal hearing and ruling. The insurer, following an appeal of that order, also sought to have the policies rescinded in Superior Court, claiming the injured worker’s employer materially misrepresented the information provided on the applications for policies. The insurer claimed it had no duty to indemnify the employer and sought damages of the amounts already paid to the injured worker.

The injured worker and the employer did not formally object to the proceedings in Superior Court, and the judge entered a summary judgment in favor of the insurer. As part of the order, the judge ruled that the insurer did not have to pay any of the sums on the claims arising out of the injured worker’s claims. The insurer took the judgment to the DIA, which denied the insurer’s motion to dismiss the suit. As its reasoning, the administrative judge ruled that the Superior Court did not have jurisdiction, that the employee was not a party to the initial application (and alleged misrepresentation) with the insurer, that the insurer did not terminate the policy according to statute, and that as a matter of public policy the judge did not want to encourage insurers circumventing the administrative process by going to the Superior Court.
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When an injury occurs in the workplace, financial concerns of how to pay for the medical bills and daily expenses quickly appear. When an injury takes an employee away from work for an extended period of time, maximizing the amount of workers’ compensation is in the victim’s and victim’s family’s best interest. A pair of recent appellate cases, Joseph F. Driscoll’s Case (14-P-776) and Driscoll v. Contributory Retirement Appeal Board (14-P-420) analyzed whether a city employee’s injury was considered ongoing, and whether or not he was entitled to accidental retirement benefits.

The injured employee hurt his back when he jumped into a garbage truck while working for the city’s highway department. He sought benefits from his employer, which was self-insured, and was paid weekly incapacity benefits for two months immediately following the injury. The injured employee also sought ongoing workers’ compensation benefits and accidental retirement benefits. The ongoing workers’ compensation benefits were initially denied by the self-insurer and the Dept. of Industrial Accidents (DIA). The ALJ at the DIA did grant temporary total incapacitation benefits, extending from the date of the accident to approximately nine months afterward. The Contributory Retirement Appeal Board (CRAB) and the Division of Law Appeals (DALA) both denied the injured employee’s request for accidental disability retirement benefits. The injured employee, seeking to maximize the benefits available, appealed both decisions.
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Workers’ compensation may be available in different forms, depending on who your employer might be. If you work in construction, your claim would likely be filed through your employer’s insurance company and benefits reviewed through the boards and hearing officers under Massachusetts’ Workers’ Compensation Act. If you are employed as a civilian defense contractor through the United States Government, and are hurt or killed while working in construction or work related to national defense, war activities, or a public use of the U.S., you or a qualified family member can file a claim through the Defense Base Act (DBA), which is an extension of the Longshore and Harbor Workers’ Compensation Act. Like state workers’ compensation claims, the injury or death-causing accident generally occurs during the course of employment. However, under the DBA, an exception exists for injuries caused while in a “zone of special danger,” where it isn’t necessary for the injury to occur during work hours or during activities that would ultimately benefit the employer.

In Battelle Memorial Institute v. Dicecca (No. 14-1742), the First Circuit Court of Appeals reviewed whether an injury occurred in a zone of special danger in an appeal by an employer and its insurance company. The petitioners in this case argued against the award of death benefits under the DBA granted by the Benefits Review Board (Board) to the widow of a contract employee in Tbilisi, Georgia. Her husband was allowed a special stipend for vouchers to use on taxis to get around the city for any purpose, whether professional or personal, and was provided an extra 25% salary supplement for “hardship pay” for working in conditions that are unusually difficult or dangerous, or facilities that are inadequate. The man was traveling to a grocery store 20 minutes away when another driver hit his taxi and killed him. The wife filed suit for death benefits under the DBA, pointing to the special pay allotted for dangerous conditions as support for her claim, in addition to the perpetual “on call” nature of her spouse’s job.
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