Articles Posted in Workers’ Compensation

The Massachusetts Supreme Judicial Court recently issued a published opinion on the issue of whether a former correctional officer was entitled to receive both assault pay and workers’ compensation following a work-related injury.  The court reversed a judgment by the superior court and held that an employee of the Commonwealth had a right to assault pay, but that right ceases with separation from employment.

In Mark Marchand v. Department of Correction, the plaintiff, Mark Marchand, injured his knee when trying to protect another Department of Correction employee from an inmate assault.  After his injury, Mr. Marchand began receiving workers’ compensation benefits and assault pay.

Mr. Marchand was then deemed medically unfit for duty, and he was separated from employment as of November 19, 2010.  He received workers’ compensation benefits until July 4, 2013.  First, Mr. Marchand received benefits according to section 34 temporary total disability, and then he received partial disability under section 35 of the Massachusetts Workers’ Compensation Act.

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The Massachusetts Reviewing Board of Industrial Accidents reviewed a decision in favor of an employer’s workers’ compensation insurer, affirming the dismissal of an injured employee’s claim for psychological impairments.  In this appeal, the issue was whether it had been an abuse of discretion for the Director to deny the employee’s fee waiver petition and ultimately for the judge to dismiss the employee’s claim.

In a decision involving an injured employee’s failure to pay for one-half of a medical examination, the Massachusetts Reviewing Board of Industrial Accidents held that his claim for benefits was denied and dismissed it.

The case before the Board presented a long procedural history related to an April 10, 2007 work injury.  On appeal, the issue centered on the dismissal of the employee’s claim for psychological impairments allegedly related to that injury.  At a hearing, after the employee appealed an order denying this claim, the judge found the § 11A impartial medical report was adequate but then opened the record due to medical complexity.

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The Massachusetts Reviewing Board of Industrial Accidents recently addressed whether an administrative judge properly awarded partial incapacity benefits to an injured employee. In this case, the employee suffered injuries at work, and the employer’s self-insurer argued the judge should have determined his earning capacity as a college graduate, despite the fact that he had not graduated from college. The Board held there was no requirement the judge must consider the employee’s degree as it related to his earning capacity.

Michael Glazer worked for North Shore Medical Center Salem Hospital as a psychiatric counselor from 2006 until 2011. He attended college part-time for three years but did not graduate. His responsibilities included conducting group sessions, restraining patients, and maintaining security. Mr. Glazer was injured at work while helping to restrain a combative patient. He returned to work on light duty but then left in January 2012.  Later, the Medical Center terminated Mr. Glazer’s employment because it was determined that he had submitted a false degree from Northeastern University, with the hope it would help him secure the job.

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Recently, the Massachusetts Reviewing Board of Industrial Accidents struck down an agreement between an excess insurer and an employer, when the employee was not aware of the agreement, nor was the Department of Industrial Accidents. In this decision, the Board focused their analysis on the need to protect injured employees from insolvent employers, since the employer in this case had declared bankruptcy.  The Board also stated that the rules that might apply to insurance policy agreements outside the workers’ compensation realm did not in fact apply here, since the Department’s goal is to protect injured workers as well as the self-insurer.

John Pastore, the employee, suffered a work-related injury on September 8, 1983, while working for Polaroid Corporation, Inc. Polaroid was then a licensed self-insurer.  They purchased an excess reinsurance contract with One Beacon’s predecessor, Commercial Union. The purpose of this contract was to cover workers’ compensation obligations that Polaroid incurred between January 1, 1983 and January 1, 1984.  Included in these obligations was the payment of Mr. Pastore’s benefits.

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In an appeal involving spousal benefits issued to a deceased employee, the Massachusetts Reviewing Board of Industrial Accidents reviewed what constituted “reasonable” expenses for the surviving spouse. In this case, if the spouse was determined to be fully self-supporting, according to the workers’ compensation insurance company, she should not be receiving survivor’s benefits under § 31 of the Workers’ Compensation Act.

The employee worked as a corrections officer for Suffolk County and died in the course of his employment in 1997. His wife, the claimant in the case, began receiving § 31 benefits.  A few years later, the self-insurer sought to discontinue the claimant’s benefits, arguing that she was fully self-supporting because she worked as a registered nurse, making $894.97 weekly. Her § 31 benefit in 2012 was $551.30, supplemented by an adjustment under § 34B of $199.74, giving her a total of $751.04.

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The Massachusetts Reviewing Board recently analyzed a case involving an employee’s allegation that the judge had erred in determining that she had not proven her claim of disability based on exposure to irritants causing asthma.  The Board stated that an employee’s claim for workers’ compensation based on environmental conditions at work requires showing a causal relationship between the work conditions and the injuries sustained. In this case, the Board held the employee suffered an industrial accident while working, emphasizing that the judge adopted medical evidence that causally related her condition to her exposure to irritants at work.

Valerie Bonds worked for the Boston Public School Department, teaching from 1989 until October 20, 2011.  Respiratory distress caused her to leave her position. She worked in buildings that were dilapidated, with water damage, leaks, exposed water pipes, and poor soil quality. While Ms. Bonds did not have a history of asthma, she had smoked for 34 years, and she began having respiratory issues in 2008. Ms. Bonds found her breathing issues took place when she was working inside school buildings, but her symptoms dissipated when she left school for fresh air.  While Ms. Bonds temporarily left the school, she decided on October 20, 2011 that she could not return to work.

Ms. Bonds was diagnosed with rhinitis and work-related asthma.  The judge found that Ms. Bonds’ condition was aggravated, if not caused, by the school air quality.  But the judge denied and dismissed Ms. Bonds’ claim on the grounds that she had not presented persuasive evidence of her inability to work in the school buildings and that she had failed to prove she could not work at all. The judge cited the medical opinion that Ms. Bonds could work in an environment free of airborne irritants and factors increasing the growth of mold and water damage.

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In an appeal involving two separate work-related injuries, the Board affirmed a lower judge’s finding that a second incident was not the cause of further harm.  Since the employee worked for two separate employers, the workers’ compensation insurance company for the first employer argued that the second employer (and insurer) should be liable for the injuries from the second incident.  The Board reviewed the judge’s findings and held that a compensable personal injury did not take place when the employee’s knee gave out a second time.

Jair Ortiz Vasquez worked as a houseman for Sheraton Springfield, insured by AIM Mutual Insurance Company (AIM).  During work on September 7, 2011, he fell through a gap located between a loading dock and a truck, and his left leg twisted, resulting in pain in his left knee. After treatment, he returned to work five days later for Sheraton and his other concurrent employer, SPHS Mercy Medical Center, insured by ACE American Insurance Company.

On September 28, 2011, while working at Mercy, the judge found that Mr. Vasquez lost control of his left leg and fell forward, and in the weeks before that incident, he had lost control of his left leg.

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The Massachusetts Reviewing Board of Industrial Accidents recently reviewed an administrative judge’s decision regarding § 34 and § 35 benefits, as well as § 13 and § 30 benefits, in a workers’ compensation appeal regarding an employee’s psychological harm. The Board reviewed whether the impartial examiner set forth an opinion that the predominant cause of the employee’s disability had been caused by workload issues.

The employee, 44 years old at the time of the hearing, worked as a corrections officer from February 2010 to March 20, 2012, and he alleged he suffered a psychiatric disability due to both his heavy workload and an inmate’s threat of harm.  The judge had found that the employee’s workload was the predominant cause of his disability. He also found that the employer’s actions were not “a personnel action,” so they did not immunize the employer from liability.  The self-insurer argued that the judge erred when he relied on the impartial examiner’s report after rejecting some of the history on which the report was based.

The employee in this case worked at MCI Concord as a corrections officer. He tested inmates for drugs and was assigned other duties as well. The employee testified to his heavy workload and the resulting stress caused by working overtime.  He also explained that an inmate threatened to harm him if he went back on an agreement not to raid his cell.

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Recently, the Massachusetts Reviewing Board of Industrial Accidents reviewed a decision in favor of an injured worker who received compensation benefits for permanent and total incapacity from his employer until his employer filed for bankruptcy.  The issue in this appeal was how the employee would receive compensation, without a gap in payments.  Both the Workers’ Compensation Trust Fund (WCTF) and Safeco Insurance Company cross-appealed a lower court decision awarding § 34 benefits to the employee.

The Board, in reviewing the decision of the judge, based much of the analysis on the purpose of the Workmen’s Compensation Act and an employee’s right to benefits.

In this case, the employee had worked for the employer until his injury on January 21, 2005. At that time, the employer was self-insured.  The employee began receiving § 34 benefits and then § 34A benefits.  On the date of the injury, the self-insurer had reinsurance that it bought from ACE.  The employer also posted a bond with the department before filing for bankruptcy.  Safeco held the bond and began to pay compensation to the employee.

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Recently, the Massachusetts Reviewing Board of Industrial Accidents analyzed whether an employee had met her burden of proving that her falls suffered at work were compensable under the Massachusetts Workers’ Compensation Act. In this case, the Board found that even without considering the falls, the medical evidence supported a finding that it was the repetitive and strenuous work that caused the employee’s disability.  The Board affirmed the decision to award the employee § 34 temporary total incapacity benefits, ongoing § 35 partial incapacity benefits, and §§ 13 and 30 benefits.

At age 61, the employee had been educated through the fourth grade in the Azores. She worked first as a housekeeper for the employer, and later as a certified nursing assistant.  She described this job as physical, requiring her to bathe, dress, feed, and move patients.  In the course of performing these duties, she testified that she felt pain in her knees, particularly her right knee.  She also stated that while bringing a tray to a patient in 2011, she fell and landed on her right knee.  Initially, she stated she “fell in the bed,” but then upon further questioning, she testified she fell directly to the floor, without hitting anything.  She also testified that before this fall, she had fallen a few times.

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