Massachusetts Workers' Compensation Lawyer Blog

Massachusetts Reviewing Board Holds that Judge Had Not Based Finding on Specific Facts Regarding Employee’s Repetitive Lifting and Weight

Published on: February 9, 2017 | by Pulgini & Norton, LLP

In a recent appeal before the Massachusetts Department of Industrial Accidents Review Board, the workers’ compensation insurer for the employer argued that the employee’s back surgery was not causally related to his work injury. In this case, there had been a discrepancy of facts supporting the judge’s decision to award benefits to an injured employee.

The employee, 44 years old at the time of the hearing, injured his back in 1991 while working at a supermarket, and he underwent a laminectomy (also known as decompression surgery, it involves enlarging the spinal canal to relieve pressure on the spinal cord and nerves) in the following year. In 1993, the employee returned to work for his employer, an electrical company, until he was laid off in 2009. He briefly returned to work for a large order in 2011 and then was laid off in March 2012.

According to the employee, he did not recall a specific incident that injured his back, but he stated that his injury took place during repetitive work-related carrying and lifting.

Massachusetts Reviewing Board Holds Missing Medical Evidence Requires Vacating the Decision Denying an Employee’s Claim for Benefits

Published on: February 3, 2017 | by Pulgini & Norton, LLP

In a recent decision, the Massachusetts Department of Industrial Accidents Review Board addressed whether a judge’s decision denying an injured employee’s claim for workers’ compensation benefits could be upheld when medical evidence submitted by the parties had not been considered, including the employee’s most recent disability opinion. After suffering an injury while working as a cook and laborer for his employer, the employee in this case had received total incapacity benefits according to Massachusetts law (§ 34 benefits). Once the employer sought to modify or discontinue these benefits, a hearing was held. Ultimately, the judge found that the injured employee’s medical documentation was dated, and he found the employee partially disabled, capable of light-duty work. The employee appealed, and the Board analyzed the judge’s decision and findings of fact.

After being treated at the hospital for a back injury due to a work-related slip and fall, the employee in this case was unable to perform his work, and he remained out of work at the time of the hearing.

Massachusetts Reviewing Board Holds Medical Opinion Necessary to Support Finding of Compensability and Evidence Supports First Insurer’s Liability for Injured Painter’s Incapacity Period

Published on: January 26, 2017 | by Pulgini & Norton, LLP

In a decision involving the successive insurer rule, the Massachusetts Reviewing Board of the Department of Industrial Accidents held that a medical opinion must support a finding of causality between an injury and compensability and that the evidence in the case at hand indicated the injured worker’s incapacity was due to an industrial accident that occurred while working for the first insured. The first workers’ compensation insurer for a painting company was deemed liable for incapacity benefits awarded to an employee who, after suffering an industrial accident with the first company, had secured employment with another company, while continuing to suffer from residual knee problems.

In their review, the Board analyzed the judge’s reliance on medical evidence. In order to shift legal responsibility from one insurer to another, the Board made clear there must be a supportive medical opinion. In this case, the Board rejected the first insurer’s argument that the worker’s knee complaints were related to his work for the second company.

Massachusetts Seafood Wholesaler Cited by Federal Agency for Serious Violations that Fatally Injured Employee and Exposed Employees to Risk of Harm

Published on: January 19, 2017 | by Pulgini & Norton, LLP

Under Massachusetts law, employees who suffer work-related injuries may be entitled to benefits and medical costs. Workers’ compensation is a form of insurance that provides reimbursement for medical costs, reduced wages due to a disability, and other coverage, such as job retraining. In addition to state law, the federal government sets forth standards to ensure the safety of employees throughout the nation. As federal agencies, the United States Department of Labor and specifically the Occupational Safety and Health Administration (“OSHA”) protect the rights of injured workers.

In some cases, employees may be aware of an unsafe working condition or a workplace hazard. OSHA gives employees the right to file a complaint if they believe there is a serious work hazard or if their employer is not following OSHA standards. Workers need not know whether a specific OSHA standard has in fact been violated in order to file their complaint. In many cases, OSHA will inspect the workplace upon receiving a complaint. If you are injured at work, and your employer did in fact commit an OSHA violation, you may be entitled to recover damages in addition to any workers’ compensation benefits you may receive.

Recently, a Boston seafood wholesaler was cited by OSHA, and the agency issued the employer fines for violating industry and OSHA safety standards. In fact, an employee was fatally injured on the job in March 2016 after inhaling ammonia that had leaked from a burst pipe in his employer’s machine shop. OSHA inspected and found serious violations.

Workers’ Compensation Insurer did not Meet Burden of Showing Improvement in Employee’s Medical Condition; Massachusetts Reviewing Board Affirms Award of Total and Permanent Incapacity Benefits

Published on: January 12, 2017 | by Pulgini & Norton, LLP

Recently, the Massachusetts Department of Industrial Accidents, Reviewing Board affirmed a judge’s decision to continue an award of section 34A permanent and total incapacity benefits, according to Massachusetts workers’ compensation laws, to an injured auto mechanic. The workers’ compensation insurer for the worker’s employer had moved to modify or discontinue his award of benefits. In this appeal, the Board assessed whether the insurer’s argument that an administrative judge had erred was legitimate. Ultimately, the Board held that the judge had not erred in relying on a medical opinion that causally linked the employee’s disability to his work injury.

The employee worked as an auto mechanic for most of his career, and as a 58-year-old, he engaged in heavy work, such as lifting up to 100 pounds alone and 250 pounds with the assistance of others. The employee suffered a back injury at work, while bending and lifting. The insurer accepted the workers’ compensation case and paid his section 34 temporary total incapacity benefits.

After undergoing surgery as well as physical therapy and taking multiple pain medications, the employee continued to suffer. The insurer filed a complaint for a modification or discontinuance of his benefits, and the employee joined a claim for section 34A permanent and total incapacity benefits. Twice, administrative judges found that the employee remained permanently and totally disabled, and one complaint was withdrawn before the hearing. At a hearing for the fourth complaint for modification or discontinuance, the judge adopted the opinion of the employee’s examining orthopedist.

Massachusetts Reviewing Board Upholds Judge’s Determination that Employee was Permanently and Totally Disabled and Suitable for Vocational Rehabilitation

Published on: January 5, 2017 | by Pulgini & Norton, LLP

At issue in a recent appeal before the Massachusetts Department of Industrial Accidents Reviewing Board was whether an employee was entitled to benefits for being partially and totally disabled while undergoing vocational rehabilitation training. The workers’ compensation insurer in this case appealed a decision that denied its complaint to modify or discontinue the employee’s section 34 benefits. The insurer had been ordered to continue paying those benefits until their statutory exhaustion and then pay section 34A benefits.

In analyzing the judge’s decision, the Board assessed the policy of vocational retraining. The Board, citing Massachusetts law, made clear that vocational rehabilitation serves the purpose of working to return injured employees to jobs that pay “as near as possible” to their pre-injury wage. In order to serve this purpose, the Department should encourage and facilitate agreements between injured employees and insurers to use vocational rehabilitation services so that employees can return to suitable employment.

Massachusetts Reviewing Board Holds Claimant Was Independent Contractor, Not Entitled to Workers’ Compensation

Published on: December 29, 2016 | by Pulgini & Norton, LLP

At issue in an appeal before the Massachusetts Department of Industrial Accidents Reviewing Board was whether the judge had applied the proper analysis of employment status in determining that a workers’ compensation claimant was an independent contractor, who was not entitled to workers’ compensation benefits following a work-related injury. The judge had analyzed several factors set forth in the cases of MacTavish v. O’Connor Lumber Co., 6 Mass. Workers’ Comp. Rep. 174 (1992) and Athol Daily News v. Bd. Of Rev. of the Div. of Employ. and Training, 439 Mass. 171 (2003).

The “MacTavish” factors are considered to control the issue of whether a claimant is an independent contractor or an employee for the purposes of workers’ compensation benefits under Chapter 152. The claimant argued that the MacTavish factors and the “so-called independent contractor statute, G.L. c. 149, § 148B,” should have applied, and they would have resulted in a finding that she was an employee, entitled to workers’ compensation benefits.

The claimant in this appeal worked for Publishers Circulation Fulfillment, Inc. (PCF), delivering newspapers. Her position was defined as an independent contractor. The claimant identified herself as a sole proprietor when she filed her income taxes.

Reviewing Board Holds Judge Made Findings Contrary to Medical Evidence and Massachusetts Workers’ Compensation Rules of Law Concerning Modification of Benefits Award

Published on: December 22, 2016 | by Pulgini & Norton, LLP

The Massachusetts Reviewing Board of of Industrial Accidents recently reviewed a decision involving a judge’s allegedly harmful reliance upon medical opinions to modify a workers’ compensation award. Modification benefits must be grounded in evidence showing that the employee’s medical or vocational status changed. In this case, the employee appealed a judge’s order that found he was not in active treatment for a hurt left shoulder, and he was not totally incapacitated. The Board reviewed the evidence and found that, in fact, the judge’s reliance had been in error, and the decision must be vacated.

The employee in this case worked as a foreman or “job boss” for large construction projects. In October 2013, he suffered injuries when he was hit by a truck on a construction site. He fell into a trench and landed on PVC piping, injuring his left minor shoulder, left ribs, and face.

Massachusetts Reviewing Board Finds Harmful Error in Inconsistent Findings Regarding the Cause of Employee’s Psychological Harm

Published on: December 15, 2016 | by Pulgini & Norton, LLP

In an appeal involving issues of causation, the Massachusetts Reviewing Board of Industrial Accidents stated that the judge had committed harmful error by mischaracterizing the evidence, leading to inconsistent findings. The psychological injuries suffered by the employee in this case had allegedly resulted from physical harm due to a work incident. The Board stated that it was not clear that the employee’s injuries and symptoms were caused by the industrial accident.

Procedurally, the judge adopted some of the medical opinions but not the most recent opinions regarding causation. The employee had undergone two surgeries and continued treatment for anxiety and depression. While there had not been a dispute about whether the employee suffered an injury, the specific symptoms and injuries caused by that incident were at issue. The Board found it had been an error for the judge to make inconsistent findings that factored into his determination that the work incident caused the employee’s injuries.

The employee in this case, who was 48 years old, worked as vice president of marketing for her employer. This task required strong analytical and communication skills, as well as attention to detail. The employee suffered injuries when a magnet, weighing 8-12 ounces, fell from a door and hit her on the forehead.

Massachusetts Reviewing Board Focuses on Fee Requirement for Impartial Medical Examination on Appeal, Precludes Claimant from Pursuing Medical Benefits

Published on: December 8, 2016 | by Pulgini & Norton, LLP

Massachusetts law requires that an impartial medical examiner examine the claimant when there is a dispute within a workers’ compensation claim over medical issues that serves as the subject of an appeal. At the time of the appeal, the workers’ compensation claimant must submit payment of an average weekly wage in order to offset the cost of the examination. Recently, a case before the Reviewing Board presented the issues of whether a medical dispute required an examination and whether the claimant’s failure to pay the appeal fee precluded his claim.

The facts of this case indicated that after suffering a work injury in 1991, the injured employee accepted his liability case for $145,000. Eleven years later, in 2007, the employee filed a claim, and then when the claim was denied, he appealed the conference order denying the claim. He failed to pay the required appeal fee. Notice was sent to his attorney, but the fee was not paid. The case was administratively withdrawn.

Massachusetts Workers’ Compensation Lawyer Blog