Massachusetts Workers' Compensation Lawyer Blog

Workers’ Compensation Insurer Accepted Causation Between Work Injury and Death When Failing to Appeal Award of Burial Benefits to Spouse According to Massachusetts Law

Published on: July 13, 2017 | by Pulgini & Norton, LLP

In a Massachusetts Reviewing Board Decision, the Department of Industrial Accidents determined that the spouse of a deceased worker was entitled to burial benefits, although they affirmed the denial of her claim for dependency benefits. The issue on appeal was whether the insurer had, by failing to appeal the award of burial benefits, established that causation existed (that the employee’s death was work-related). The Board rejected the notion that burial benefits lack a causation element, and it held that by failing to appeal the order that awarded burial benefits, the insurer established that there was a causal relationship between the employee’s work-related injury and his death.

The facts of the case indicate that the employee in this case worked for the Sheriff’s department as a caseworker, and he suffered back and neck injuries at work. He was paid § 34 benefits until his death, caused by excessive aspirin ingestion. At the time of his death, the employee was married but living apart from the claimant.

The claimant (spouse) filed a workers’ compensation claim for benefits based on dependency benefits and burial benefits provided by Massachusetts’ workers’ compensation laws. At a hearing, the insurer argued the claimant was not entitled to those benefits, but the judge ordered that burial or funeral expenses be paid. The judge denied the claim for dependency benefits, and the claimant appealed.

Reviewing Board Recommits Case After Massachusetts Judge Erred in Failing to Consider Injured Employee’s Properly Admitted Evidence and Set Forth Disability Findings Inconsistent with Dates

Published on: July 6, 2017 | by Pulgini & Norton, LLP

Recently, the Massachusetts Department of Industrial Accidents, Review Board, held that an administrative judge had not considered evidence the injured employee had properly submitted regarding his medical condition due to a work injury. The Board vacated the decision and remitted the matter for further review, noting also that the judge had mistakenly set forth dates for disability findings that were inconsistent with his adopted evidence.

In this case, the injured employee worked as a court officer and was hurt during an altercation with a prisoner in March 2012. The employee underwent treatment at a hospital for injuries to his ribs, right arm, and wrist. After the self-insurer accepted legal fault for the injured employee’s physical harm, the parties stipulated the injuries had resolved by May 2013.

At conference, the employee joined a claim for psychiatric counseling and further indemnity benefits, as well as a claim for post-traumatic stress disorder (PTSD). The insurer contended they were not liable for the PTSD injury. Since the judge deemed the § 11A report inadequate regarding the PTSD claim, the parties were allowed to submit additional medical evidence.

Massachusetts Review Board Holds Employee Entitled to Average Weekly Wage Set Forth in Conference Order, Employee Had Not Appealed the Order

Published on: June 29, 2017 | by Pulgini & Norton, LLP

The main issue in a recent case before the Massachusetts Department of Industrial Accidents, Reviewing Board, was a dispute regarding an injured employee’s average weekly wage. A judge had determined that the employee was entitled to benefits, based on an average weekly wage of $1,726.37. The employer contended that the employee had not appealed from a conference order and therefore should have received the lower amount, $1,490.33, the average weekly wage set forth at the conference.

The employee worked as a carpenter and was injured at work while moving a large piece of machinery that tipped. His claim was covered by workers’ compensation, and there was liability for the injury. After receiving benefits, based on an average weekly wage of $800.00 per week, the employee sought an adjustment of this amount.

Massachusetts Reviewing Board Recommits Case When Judge May Have Been Biased and Failed to Rule on Objections in Medical Depositions

Published on: June 22, 2017 | by Pulgini & Norton, LLP

In an appeal before the Massachusetts Reviewing Board, Department of Industrial Accidents, the issues was whether an administrative judge had lacked impartiality in deciding that the insurer must pay benefits to an employee who suffered a workplace injury. The Board also addressed whether the judge had failed to rule on objections regarding the medical depositions.

In this case, the employee worked as a manager of a donut franchise for approximately nine years, until she injured her left knee and lower back. The workers’ compensation insurer paid § 34 benefits in accordance with a conference order, but then it terminated them after offering the employee a job based on medical restrictions set forth in an independent medical examination report. Since the judge found that the impartial report was adequate, but the medical issues were complex, the parties were allowed to submit additional medical evidence.

When making his determination, the judge had relied upon part of the medical opinions to find the employee was totally disabled due to the industrial accident. The employer had made two job offers to the employee, but the judge found that neither offer was suitable. The judge then awarded the employee ongoing § 34 benefits, as of the date of discontinuance. The insurer appealed.

Massachusetts Reviewing Board Recommits Case to Determine Injured Employee’s Average Weekly Wage Because Judge Had Not Provided Basis for Ultimate Finding

Published on: June 15, 2017 | by Pulgini & Norton, LLP

In a recent appeal, the Massachusetts Reviewing Board, Department of Industrial Accidents recommitted a case to further determine whether the employee’s average weekly wage had been properly determined.

The employee in this case was 27 years old when the hearings took place, and she worked as a mental health assistant at the time of her injury. In January 2013, she slipped on black ice at the employer’s premises and injured her back. After receiving medication at the hospital, she was treated conservatively for two years, receiving injections and undergoing physical therapy and diagnostic testing. In February 2013, the employee returned to modified work and also worked as a part-time bartender and a nanny.

Massachusetts Review Board Upholds Compensation Award to Injured Employee, Rejects Insurer’s Argument That “Going and Coming” Rule Applied

Published on: June 8, 2017 | by Pulgini & Norton, LLP

In a recent case before the Massachusetts Department of Industrial Accidents, Review Board, the issue was whether the “going and coming” rule applied, such that an injured employee was barred from receiving compensation. In this case, the Board turned to precedent to determine liability. The issue was whether the employee was due compensation for her injuries sustained while traveling by vehicle to her permanent home.

The employee in this case was a nurse, 71 years old at the time of the hearing regarding her claim for compensation. At the time of her injury, the employee had been working as a psychiatric nurse for her employer, who assigned her to work at a mental health facility in Vermont. The employee worked a night shift and traveled from her home in Danvers to her job in Vermont at the beginning of the week, returning home after five days.

Massachusetts Review Board Finds Employee’s Lyme Disease Was Caused by Exposure During Work For First Employer; Causation Established and Closed Period Benefits Awarded

Published on: May 25, 2017 | by Pulgini & Norton, LLP

The Massachusetts Reviewing Board recently upheld a decision in favor of an employee diagnosed with Lyme disease after being exposed to tick bites while working as a lineman. The issue in this workers’ compensation case centered on when the tick bites were sustained. The employee’s symptoms had begun potentially years after the tick bite, and the focus of the hearing before the administrative law judge was on causation.

The employee in this case worked for one company from 2005 to 2007 and another beginning in 2008. While working for Employer 1, he was often outside, exposed to tick bites. The employee explained that beginning in 2006, he endured abdominal pain, arthritic joint pain, and other symptoms that accelerated by June 2009. In September 2011, the employee left work due to the effects of Lyme disease, which is a tick-borne illness. The disease disabled him until July 2012, but one year later, he was no longer in treatment.

Massachusetts Reviewing Board Affirms Decision Denying Injured Employee’s Expenses for Hip Replacement After Work Injury

Published on: May 18, 2017 | by Pulgini & Norton, LLP

Recently, an employee appealed a decision to the Massachusetts Department of Industrial Accidents Review Board after a judge denied his § 30 claim for reimbursement of costs for a total left hip replacement. While the Board upheld the decision, they noted that the judge had set forth a standard for assessing medical complexity that had been rejected. The rule, stated by the Board, is that a subjective approach must be used to determine medical complexity.

In this case, the employee had worked for his employer for over 30 years, as a machine operator and an x-ray technician. He suffered injuries in an accident at work, when a revolving door struck his knee, and he fell onto his side. After receiving medical treatment from two doctors, the employee underwent surgery on both knees, and during the recovery period, he received weekly indemnity benefits.

Massachusetts Court Holds Workers’ Compensation Law Provides for Interest from Filing Date of Claim Ultimately Resulting in Award of Benefits

Published on: May 11, 2017 | by Pulgini & Norton, LLP

According to Massachusetts workers’ compensation law, interest must be assessed on unpaid claims from the date the Department of Industrial Accidents receives notice of the claim. At issue in a recent case before the Massachusetts Court of Appeals was whether interest would begin as of the date the Department receives notice of a claim that leads to an award of benefits, or whether interest would run from the employee’s filing date of an earlier, similar claim that was eventually terminated.

After suffering injuries in 1993 in the course and scope of employment, the employee in this case filed a claim and received workers’ compensation benefits for total incapacity until he was able to return to work. He suffered another injury in 1995 and stopped work, according to the recommendation of his physician, and he had not worked since.

After Three Workers Fall At Massachusetts Worksite, OSHA Administrative Law Judge Holds Both Contractor and Subcontractor Responsible as Single Employer

Published on: May 4, 2017 | by Pulgini & Norton, LLP

According to the Health and Safety Act of 1970, employers are required to provide a safe workplace for employees. Recently, an administrative judge with the Occupational Safety and Health Review Commission held that two contractors had been operating as a single employer at a worksite in Wenham, Massachusetts when three employees fell from a scaffold and suffered injuries. By holding both employers responsible as a single entity, the judge rejected one employer’s contention it had no personnel on-site and was not aware of OSHA violations.

According to a press release, an investigation by the Occupational Safety and Health Administration (“OSHA”) after the incident found that a wooden plank that the employees had been using to perform residential roofing work snapped. The employees fell 20 feet to the ground. OSHA determined that the plan had not been graded for scaffold use, and it was not intended to be used for scaffold use. Additionally, the components and structure of the scaffold, as well as the lack of fall protection for employees, had contributed to their injuries. For example, the width of the scaffold had not met the standards set forth by OSHA, and the platforms exceeded the height limit.

In the decision, the judge looked at factors that demonstrated the general contractor had a degree of control and oversight over the subcontractor, such that they were rendered a single employer. The general contractor secured contracts with homeowners seeking roof replacements. The other employer was a subcontractor, working as a roofing company.

Massachusetts Workers’ Compensation Lawyer Blog