Articles Posted in Workers’ Compensation

In a recent case, Estate of Moulton v. Puopolo, the Massachusetts Supreme Judicial court handed down a landmark decision for workers’ compensation claims in Massachusetts.

The case arose out of an incident in which a 25-year-old female employee, who was working as a residential treatment counselor at a non-profit mental health and rehabilitation facility, was left alone with one of the facility’s residents, during which time the resident assaulted the employee and thus caused her death. Following her death, the employee’s estate brought a wrongful death action, essentially alleging that the employer was liable for the woman’s death because the employer failed to adopt proper policies to screen clients, and that as a result of this failure, the plaintiff (employee) was left alone with the client, who then killed her.

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Hasbro Employee Injured on Assembly Line Receives Benefits

When a self-insured employer appeals a decision awarding workers’ compensation benefits to one of its employees, it must at least raise its objections at the original hearing or risk losing the option on appeal. In the case at Board No. 007702-09, Hasbro, Inc., a national toy manufacturing company with a Massachusetts factory, lost a decision by the Reviewing Board of the Massachusetts Department of Industrial Accidents, at least partly because it failed to raise an objection at the hearing and tried to bring it up for the first time on appeal.

The employee, Maria Kiaresh, was a 57-year-old Italian immigrant who had come to the U.S. at age 13. She had no high school education and could not read or speak English. Her participation in her case required an interpreter. On May 17, 2005, while performing repetitive work on an assembly line at Hasbro’s Massachusetts factory, she felt pain in her right shoulder while “flattening bags of game chips to put into boxes. . . .” She received treatment from the company nurse and physician. In 2008, she underwent neck surgery, and in 2010, surgery on her right shoulder. Hasbro had laid her off in 2008  “due to her work restrictions from her industrial injury in 2005.” Hasbro accepted her claim and began paying her weekly benefits.

Hasbro Moves to Discontinue Benefits

On June 23, 2011, Hasbro filed a complaint to discontinue or modify the employee’s benefits. The employee moved to join her claim for § 34A benefits, which was allowed. In a conference order dated February 16, 2012, the judge denied Hasbro’s complaint but did not address the employee’s claim. Both parties appealed, but Hasbro withdrew its appeal, leaving only the employee’s § 34A claim to be adjudicated at hearing.

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Employee Suffers Back Injury At Work

Mr. Carlos Araujo, age 58 at the hearing, was educated through the sixth grade in Uruguay. He speaks limited English and testified with the assistance of a Spanish interpreter. His work history consists of heavy labor. On his injury date, he was working as a construction laborer for United Walls Systems, LLC. His average weekly wage was $896.67. Mr. Araujo testified that on November 17, 2010, he was attempting to lift a manhole cover with a co-worker.  While lifting, he felt the onset of low back and right leg pain.

Physician Finds Employee Permanently Partially Disabled Due to Work Injury

Mr. Araujo was examined by Dr. Marc Linson pursuant to § 11A. In his May 16, 2012 report, Dr. Linson opined that Mr. Araujo had injured his back in the course of his employment on November 17, 2010 and that this injury had aggravated pre-existing lumbar degeneration and borderline stenosis at the L4-5 level. The pre-existing back condition had not been causing symptoms prior to the work injury. Dr. Linson found Mr. Araujo to be in severe and ongoing pain a year and a half after the injury. In Dr. Linson’s opinion, Mr. Araujo was permanently partially disabled with the injury of November 2010 being a major causal factor. The doctor found Mr. Araujo could do light work full-time but would not ever be able to resume his former heavy paving work. The judge adopted Dr. Linson’s opinions respecting causal relationship, diagnoses, and the nature and extent of Mr. Araujo’s disability subsequent to November 17, 2010, and that day he suffered an industrial injury.

Judge Uses Video Evidence to Discontinue Workers’ Compensation

Video evidence of Mr. Araujo’s activities was also admitted at the May 22, 2013 hearing. The video is less than 13 minutes long and purports to capture Mr. Araujo’s activities over approximately 52 minutes on December 10, 2012. He is seen driving women to a store. He remains outside, where he stands and occasionally walks. He drives the women back to a residence with their purchases. He then makes one trip from the vehicle while carrying several small white shopping bags into the residence. There is no reliable way of knowing how much weight he is carrying, and there was no testimony concerning this issue. The judge did not avail himself of the option of forwarding the video evidence to Dr. Linson to inquire if the actions of Mr. Araujo in the video would have altered the doctor’s opinions. See General Laws c. 152, § 11. The hearing judge noted he specifically relied upon the video of the employee’s activities as depicted on December 10, 2012, to terminate Mr. Araujo’s entitlement to § 35 benefits as of that date.

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Employee Signs Employment Contract Under Indiana Law

An employer may present a prospective employee with a contract that includes a forum selection clause. This requires the employment relationship to be governed by the law of a different state than the state where the employee is hired or expects to work. However, that contract may not, under Massachusetts law, deprive the employee of the workers’ compensation benefits available in Massachusetts, if the employee is otherwise eligible.

Mark Mendes applied for a job with Franklin Logistics, Inc., an Indiana-based trucking company, and before he was hired he agreed to sign an employment agreement, stating that any claims he might later bring for occupational injury or illness from his work for Franklin Logistics would be governed by the laws of Indiana.

Employee is Injured

On January 18, 2010, while working for Franklin Logistics in Maine, Mr. Mendes sustained an injury to his lower back. Due to the pain, he declined the dispatcher’s directive to seek treatment in Pennsylvania and instead traveled to St. Luke’s Hospital in New Bedford, Massachusetts. At the time of the proceedings before the Reviewing Board, Mr. Mendes had not returned to work.

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Workers’ Compensation Benefits Only Available for Emotional Injury Due to Personnel Actions if in Bad Faith

Under Massachusetts workers’ compensation law at Mass. G.L. ch. 152, § 1 (7A), an employee is not eligible for an award of benefits for  a psychological and emotional injury that results from a bona fide (good faith) personnel action. But the employee would be eligible for benefits if a personnel action, such as a transfer, a promotion, a demotion, or a termination, is an intentional infliction of emotional harm, which, under the law, is not in good faith. To justify an award of benefits, the action must also be the predominant cause of the employee’s inability to work.

Hearing Judge Finds Employer Actions in Bad Faith

A dialysis nurse employed by Fresenius Medical Care Holdings, Inc. had been previously diagnosed with post-traumatic stress disorder (PTSD) from a brutal childhood, but her mental state was stable at the time of the incidents leading to her workers’ compensation claim. The hearing judge had awarded § 34 benefits and medical benefits to the employee. The judge had found that some of the work events that the nurse claimed led to her being disabled due to worsening of her PTSD could be construed as personnel actions, but that they were not in good faith and the exclusion from recovery for emotional injuries under § 1(7A)[1] did not apply.

Findings on Appeal

The insurer, American Casualty of Reading, Pa., appealed, denying that the actions that formed the basis of the employee’s injury were in bad faith, but claiming that they were “bona fide personnel actions” under current law and not intentional inflictions of emotional harm, as would be required under §1(7A) and § 29] for the employee to be eligible to receive benefits.

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A Massachusetts company has put its workers in danger due to unsafe work practices involving the risk of electrocution and other injuries from power lines and possible injury or suffocation due to collapsed trench excavations, according to the federal Occupational Safety and Health Administration (OSHA).

P. Gioioso & Sons, Inc. is a Hyde Park contractor that has multiple contracts with government and private customers. OSHA inspectors determined that the company’s employees were at risk of electrocution while working near live power lines at a Cambridge work site, due to their employer’s not using mandated safety measures.The OSHA inspection in May 2014 revealed that employees were moving excavating equipment onto a work site by moving it under live power lines. The employees used a long fiberglass pole that had a metal tip to lift the overhead lines, a potentially dangerous practice. As a result, the Hyde Park contractor was cited for safety violations and faces $70,290 in proposed fines.

The OSHA inspector found that, although no one was injured or killed this time, there was still substantial danger and a risk of burns or electrocution. The inspector also concluded that the employer knew that the overhead lines were energized and therefore hazardous.

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An article in the American Journal of Industrial Medicine 55:487-505 (2012) raises the question of why so many workers suffering from occupational illnesses and injuries receive no workers’ compensation benefits. The researchers, a law professor from Northeastern Law School in Boston, Massachusetts and a Labor and Management Studies professor from Rutgers University in New Jersey, found many obstacles standing in the way, the worst being increasingly restrictive rules in many states’ workers’ compensation programs.

A construction worker who falls at a job site and breaks his arm may obtain benefits easily. On the other hand, an employee with a legitimate work-related condition, but one that doesn’t show much “objective medical evidence,” may encounter obstacles. The path to benefits may be even rougher for the employee who develops cancer decades after the work exposure to cancer-causing chemicals, or the employee whose disability is due to stress from his job.

The authors analyzed a number of databases:

• Occupational Safety and Health Administration (OSHA) logs, consisting of employee reports of work-related injuries and diseases;
• Bureau of Labor Statistics (BLS) data; and
• The National Health Interview Survey (NHIS), a study conducted annually by the National Center for Health Statistics.

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A successful plaintiff in a lawsuit for personal injury due to an intentional or negligent act by another may be awarded damages by a judge or jury for emotional distress, in addition to compensation for physical injuries and lost wages. A Massachusetts court recently confirmed that compensation for emotional distress is also available through the workers’ compensation system to an employee suffering from work-related stress.

The Appeals Court of Massachusetts in February 2014 ruled in favor of an employee who sued his employer for intentional infliction of emotional distress. The court found that the proper remedy for the employee is workers’ compensation. (The case is Jason Nicholls vs. Boston Transportation Department & Another, 13-P-293, 85 Mass. App. Ct. 1102; 3 N.E.3d 1119; 2014 Mass. App. Unpub., February 27, 2014.)

The plaintiff in this case was a parking control officer, a stressful job in itself, but to add to his stress, he had an allegedly abusive supervisor. The plaintiff worked for the Boston Transportation Department (BTD), patrolling the streets of Boston, ticketing and towing motor vehicles.  Angry car owners sometimes reacted to his ticketing or towing their vehicles by subjecting him to verbal, emotional, and even physical abuse. One outraged motorist slammed him against a utility pole.

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The Massachusetts Legislature legalized medical marijuana in the Commonwealth by enacting the Humanitarian Medical Use of Marijuana Act of 2012. Massachusetts become one of 22 other states (Alaska, Arizona, California, Colorado, Connecticut, Delaware, Hawaii, Illinois, Maine, Maryland, Michigan, Minnesota, Montana, Nevada, New Hampshire, New Jersey, New Mexico, New York, Oregon, Rhode Island, Vermont, and Washington) and the District of Columbia to allow health care providers to recommend medical marijuana for their patients, and to allow patients to obtain this product from dispensaries licensed and regulated by the state.

Many physicians see medical marijuana as a desirable option for their patients with severe pain, offering pain relief as effective as opiates with less danger of overdose or addiction. The response from employers and insurance companies is less favorable. Workers’ compensation insurers throughout the United States are viewing with alarm the increasing number of states legalizing medical marijuana. Many organizations are advising employers and insurers to decline to pay for or reimburse employees for the cost of medical marijuana, even when it is recommended by a health care provider for relief of severe pain from a work-related injury.

The primary justification for this refusal is federal law. Under 21 U.S.C. §§ 812, 822, 823(f), the federal Controlled Substances Act (CSA), marijuana is classified as a Schedule I controlled substance, illegal to use or possess except in federally approved research, but not medical use. However, the United States Justice Department has stated that medical use of marijuana is not one of the areas where it prioritizes enforcement, instead deferring to state and local laws. Continue Reading ›

An Administrative Law Judge (ALJ) who hears and decides a claim for workers’ compensation benefits must consider a detailed technical record before rendering a decision. Sometimes a crucial piece of information is overlooked or ignored in the course of the judge’s decision-making process. When this happens, and the claim for benefits is denied, the claimant’s attorney brings the omission to the court’s attention through the review process.

In a case decided on appeal in May 2014, the Reviewing Board found that the ALJ’s findings omitted a significant diagnosis made by an examining physician. The omission was significant enough that the Reviewing Board at Board Nos. 019900-92 and 064092-92 sent the case back to the ALJ for a new hearing and decision.

At the time of the two injuries for which the employee first submitted a claim, in 1992, he was working as a Cable and Conduit Installer. He slipped and fell while working inside a manhole, injuring his left leg, hip, and low back. Following that injury, he was out of work for approximately six weeks and was paid workers’ compensation benefits.

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