Articles Posted in Workers’ Compensation

Recently, the Massachusetts Department of Industrial Accidents, Review Board, held that a judge had erred by substituting his own findings for those of the examining physician and that the employee was entitled to the reversal of his decision. In this case, the Board assessed whether in this successive insurer situation, the second employer could potentially be responsible for compensating the employee for work-related injuries. The successive insurer in this case was the most recent employer, which argued that they should not be required to compensate the employee for her disability.

Here, the Department of Industrial Accidents found the judge had erred by failing to find the second employer responsible for compensating the employee for an injury to her right shoulder due to a work-related accident suffered at her former place of employment. The successive insurer rule holds employers accountable for compensating employees who endure the worsening of an injury originally caused while working for an earlier employer.  Here, the employee worked as a certified nursing assistant. In October 2007, she worked for the first employer and was injured when she fell down a flight of stairs. Specifically, she injured her left shoulder and right knee. Her employer paid her weekly total incapacity benefits, according to § 34. Her benefits continued through March 2008.

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The Department of Labor’s Occupational Safety and Health Administration (OSHA) recently cited an employer following a fatal Boston accident that killed two employees.  The employer was cited for “18 willful, repeat, serious and other-than-serious” violations of workplace safety standards.  Generally, these standards range from providing proper safety equipment to employees to training workers in identifying and addressing potential hazards.

In a press release for the region, including Boston, OSHA made clear that two employees died when they were working in a deep trench, and it collapsed. Adjacent to the trench was a fire hydrant supply line, which broke as the trench collapsed and filled the trench with water quickly.

One hazard for people working in trenches is that unprotected walls can collapse suddenly, and the great force can trap and engulf individuals before they have time to react.  By shoring the trench walls, using a protecting trench box, or sloping the soil, cave-in hazards can be prevented in many cases.

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Recently, the Massachusetts Department of Industrial Accidents, Reviewing Board, affirmed a decision in favor of an injured employee’s temporary total incapacity benefits due to an industrial accident. On appeal, the Board focused on whether the judge had committed an error by considering evidence of the injured employee’s physical state, without writing down this observation in the record. When a judge considers evidence, it must be properly identified so that each party to a case can challenge the evidence.  This identification also allows for a complete record, in the event of an appeal.  In this case, the Board found that the judge’s statement may not have been appropriate, but there was no reversible error because the observation was merely cumulative of other findings.

The employee in this case was injured in a work-related motor vehicle accident. The insurer had not contested liability for her neck and head conditions.  However, the insurer denied payments for proposed medical treatment. In response, the employee filed a workers’ compensation claim, seeking benefits for medical treatment.

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In an appeal brought after an employee was denied claims for weekly and medical workers’ compensation benefits, the Massachusetts Department of Industrial Accidents Reviewing Board upheld the judge’s decision. The Board held that the judge had properly denied the employee’s request to include evidence set forth in his hearing before the Massachusetts Division of Unemployment Assistance (DUA).

The 62-year-old employee worked for the employer, the Town of Milton, as a custodian for public schools.  He was involved in an altercation, both verbal and physical, with the Director of Facilities for the Milton Public Schools. After the employer investigated the incident, he terminated the employee.

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In an appeal involving an employee’s award of workers’ compensation benefits for an incapacity due to a work injury, the Board upheld the decision against the insurer’s allegations that the judge had mischaracterized the medical evidence and erred in denying its request to join other insurers to the claim.  In their analysis, the Board focused on the procedural delay committed by the insurer when it attempted to join other insurers. Additionally, the Board found that there had not been supporting medical evidence documenting another cause for the injured worker’s disability.

The employee in this case worked for 42 years as a union sheet-metal worker, installing ductwork and metal roofing. The physical work led to knee injuries, the first occurring in 1981 and requiring arthroscopic surgery.  In 1998, the employee was injured while working and underwent another surgery, eventually returning to work until 2008, when he was diagnosed with arthritis in his left knee.

Working until 2012, the employee filed a claim in 2014 against the workers’ compensation insurance company, based on his 1998 date of injury.  The insurer wanted to join other parties, and the judge found that the insurer did not have sufficient medical documentation of another injury or aggravation and ordered the insurer to pay the employee § 34 benefits. The insurer appealed.

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In an appeal before the Massachusetts Department of Industrial Accidents Reviewing Board, an employee’s claim for psychological disability caused by work events ten years prior was denied, affirming the judge’s findings that the employee had not met his burden of showing that his mental disability has been caused by his industrial injury.  The employee’s most recent claim for § 34, or alternatively § 34A, benefits from March 30, 2012 and continuing had been denied based on findings of three previous decisions.  While finding the employee incapacitated, the judge had not found a causal relationship to the work-related accident of 2003. On appeal, the employee sought to show that non-work related events, such as his divorce and unemployment, had been triggered by the work-related injury and related depression.

The employee’s case had a heavy procedural history, and his initial claim was founded on an alleged psychiatric injury suffered while working as a maintenance mechanic aide for his employer.  In 2003, the employee suffered anxiety, which led to his inability to work. Other life events took place, including a divorce and financial difficulties.

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Employers are required to maintain workplace safety standards set forth by federal law.  The United States Department of Labor, Occupational Safety and Health Administration (“OSHA”), recently cited a used auto parts business in Bellingham, Massachusetts for failing to abide by required workplace safety standards.  This failure led to an employee’s death, and was preventable.

OSHA stated that the employee was working for the company when he was struck in the head by a chain come-a-long device.  He had been attempting to inflate and mount a multi-piece rim wheel onto a vehicle. Days later, he died. This type of incident, labeled a “struck by” hazard by OSHA, continues to cause many fatalities and serious injuries.  Typically, this kind of injury is caused by impact between a piece of equipment and an injured person.

Inspectors working for OSHA in the Braintree Area Office found that the company had not provided adequate training and proper safeguards that would have protected the worker, as well as other employees.  OSHA specifically maintains a publication for safety methods related to servicing multi-piece and single-piece rim wheels.

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In an appeal taken from the reviewing board of the Massachusetts Department of Industrial Accidents, an injured worker sought review of an administrative law judge’s order that reduced her earlier award of weekly benefits. The appellate court analyzed the previous orders and determined that the most recent order had evidentiary support, and in fact it addressed an omission in the earlier decision, which was the failure to calculate the employee’s earning capacity.

In July 2011, the injured worker filed a workers’ compensation claim on the ground that she had been totally temporarily incapacitated due to a work-related injury. She alleged that she suffered from bilateral carpal tunnel syndrome since June 2011. After a hearing, the administrative judge had ordered that the insurer pay the worker $253.43 per week, as partial benefits according to Massachusetts workers’ compensation laws. This amount was based on her average weekly wage ($523.19) before her injury, and it was the maximum benefit available to the employee.

However, the judge had not included a computation of the worker’s earning capacity, as is required by law. Both parties appealed to the reviewing board. The board then remanded the case, and the judge found that based on the prevailing minimum wage, the employee’s earning capacity was $320 per week for a period of her incapacity, and then $360 per week for the later period. The judge found that based on this earning capacity, the employee would receive $121.91 for approximately six months and then $97.91 per week continuing forward. She appealed, and the reviewing board affirmed the judge’s order.

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The Massachusetts Department of Industrial Accidents Reviewing Board issued a decision in a workers’ compensation case centered on whether a judge relied upon necessary evidentiary support for causation.  The Board stated the rule that the proof of a causal relationship between an accident and a disability must rest upon expert medical testimony.  In this case, the judge had relied on a surveillance video, which is non-medical evidence, to find that a causal relationship had ended, as of the date of the surveillance. The judge held that the employee’s future incapacity and future need for treatment had ceased, since the employee apparently moved without discomfort.  On review, the Board reversed the finding that the injury was not a major cause of treatment needs after the date of the video; the finding had not been based on required medical evidence.

The employee worked in construction/road repair as a laborer, and he felt a pain in his back after he lifted a manhole cover in November 2009.  After a medical examination according to § 11A, the physician opined that the work accident was the major cause of the employee’s need for treatment and his disability. The physician estimated that after the exam (March 11, 2011), the employee may be capable of returning to work within six to 12 months.

The judge adopted the medical opinion and then reviewed surveillance videos, finding that the employee had not been incapacitated as of September 1, 2011 (the date of the video).  The judge also found that the industrial inquiry was not a major cause of disability after this date.

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Some occupations are inherently dangerous, especially those that require workers to climb ladders or rooftops.  Falling from either of these locations can lead to catastrophic injuries and even death.  According to Massachusetts law, injured workers who are hurt in the course and scope of employment may pursue a workers’ compensation claim against their employer.

Additionally, the United States Department of Labor, and specifically the Occupational Safety and Health Administration (“OSHA”), protects the rights of injured workers. Recently, OSHA fined a gutter cleaning company for repeatedly exposing workers to dangerous hazards without proper safeguards and for a series of fall accidents suffered by their workers. The company specializes in gutter cleaning, repair, and installation. While headquartered in New Jersey, the company provides services on the Eastern seaboard as well as in Texas and Illinois.

According to the press release issued by OSHA, the most recent accident occurred when a worker in Massachusetts fell nine feet to the ground while cleaning a gutter.  The worker was not using fall protection, nor was his foreman, who had been exposed to a fall of over 20 feet from the roof next to the house.

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