Massachusetts Workers’ Compensation Lawyer Blog

The Massachusetts Supreme Judicial Court issued a decision stating that the state’s insolvent insurers fund was able to recover for workers’ compensation claims paid on behalf of high-net-worth insureds.  In this case, Berkshire Bank argued that the Massachusetts Insurers Insolvency Fund could not recover workers’ compensation payouts made on behalf of an employee hurt while lifting a bag of coins. The superior court had found in favor of the bank, noting that amounts paid by the Fund would not have been “on behalf of” the insured employer and therefore would not have been able to be recouped.  The Supreme Court focused on the term “on behalf of” under Massachusetts law, concluding that the funds were paid “on behalf of the Bank” and could be recouped.

The Supreme Court reiterated Massachusetts law stating that the Massachusetts Insurers Insolvency Fund (Fund) may recover certain amounts paid “on behalf of” insureds, when those amounts were first paid by high-net-worth insureds. In this case, the employee who suffered an injury while working at a bank received workers’ compensation benefits under section 34, allowing for temporary total incapacity benefits, until those were exhausted, and she received section 35 benefits for partial incapacity.  The employee sought permanent and total disability compensation after her entitlement to section 35 benefits was exhausted.

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In an appeal involving a defunct workers’ compensation self-insurer, the Massachusetts Department of Industrial Accidents Reviewing Board held that a settlement agreement reached between a re-insurer and a bond holder was contrary to statute and invalid.  Partly, the Board held the agreement was invalid because there was no notice to the Department, or to the workers’ compensation claimant, the widow of a deceased employee.  In this case and the previous appeals, the claimant sought payment of her survivor benefits, which had ceased when the self-insurer’s bond was exhausted. The Board vacated the decision that had held the Workers’ Compensation Trust Fund responsible for paying the benefits and mandated the insurer pay all of the benefits directly to the claimant.

The facts of this case indicate that the employee began working for the employer, Polaroid Camera, in 1959.  In 1987, he contracted asbestosis from work-related asbestos exposure.  He worked until January 1989, when the asbestosis incapacitated him.  He was eventually awarded section 34 benefits from January 1989 and continuing.

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The Massachusetts Department of Industrial Accidents, Reviewing Board, recently analyzed a case involving two insurance companies and an employee’s claim of a repetitive injury to his shoulder. The second insurance company, Federal Insurance Company, argued that the judge had erred when he transformed the employee’s allegation from one alleging a single event in 2012 into a claim of a repetitive, ongoing aggravation of a shoulder condition. They also contended they should not be found liable for the injury under the successive insurer rule.

In this case, Kenneth Linton was a long-term employee of G.P.C. International/Chartpak, Inc.  Beginning in 1996, he worked as a paper processor and machine operator in the employer’s California plant. Then, Mr. Linton transferred to the Leeds, Massachusetts plant, where he continued to perform the same job duties.

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The Massachusetts Supreme Judicial Court issued a decision earlier this year that affects settlements for injured workers pursuing compensation for their injuries.  In the case of DiCarlo v. Suffolk Construction Co., Inc., which reviewed lower court rulings in two cases, the Court held that a workers’ compensation insurance company cannot recover its lien from a third-party settlement that has been allocated to the injured worker’s non-economic damages.  Under the workers’ compensation statute, pain and suffering damages are not compensable. Therefore, the court held, the lien holder cannot assert a lien for pain and suffering damages recovered in a third-party settlement.

The cases involved two employees, both of whom were hurt in the course of employment at construction sites and collected workers’ compensation benefits.  They settled agreements with third parties (construction site owners and managing contractors) that included damages for pain and suffering, among other things.  The insurer then sought to be reimbursed from the employees’ recoveries, including the awards for non-economic damages.

In one case, the insurer argued before a Superior Court Judge that its lien should attach to the pain and suffering award. The judge agreed and did not approve the settlement. The employee appealed, and the appellate court reversed. In the other case, the insurer appealed from a judge’s decision to approve the settlement, and this holding was affirmed on appeal. The Appeals Court held that the employee’s awards for pain and suffering were not to be included in liens placed by the insurer.

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The Massachusetts Department of Industrial Accidents, Reviewing Board recently affirmed a decision in favor of an injured employee. In this case, the court examined whether a medical report submitted after the close of evidence in the underlying hearing could form the basis of an ongoing award of section 35 benefits.  The issue was whether an employee’s disability was ongoing, requiring payment of maximum partial incapacity benefits after section 34 benefits had been exhausted.

There were two previous decisions in this matter. The first decision included the judge’s findings that as of July 6, 2012, the date of an impartial medical examination, the employee’s work injury was not related to her ongoing partial disability and incapacity. The judge awarded a closed period of section 34 benefits, from the date of the injury, July 11, 2011, to July 6, 2012.

Then, the employee appealed this decision, stating that the judge erred in denying her motion for finding that the medical record was inadequate.  The Board agreed, since the report had been ambiguous and inconsistent, and it was not to be accorded exclusive, prima facie status. The judge then allowed gap medical evidence to be introduced before the July 6, 2012 examination.  But the judge erred in relying on gap medical opinions supporting his findings, including basing his findings on an opinion that was not admitted into evidence at all.

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The Massachusetts Department of Industrial Accidents, Reviewing Board, recently issued a decision in an appeal addressing whether an injured certified nurse’s assistant’s work-related injuries were due to an industrial accident or the result of previous injuries.  The employer’s workers’ compensation insurer argued that an incident at work, the incident at issue, did not cause her disability or need for treatment.  But the Board stated that when a prior condition combines with an industrial accident, the employee need not prove “a major cause” of the disability if that prior condition was work-related.

Cheryl Briere worked as a certified nurse’s assistant from 1972 to 2011. Over the years, she suffered injuries, some of which were work-related. In 1994, she hurt her back lifting a 350-pound man into a vehicle. She received workers’ compensation benefits for it. In 1998, she hurt her back and neck in a vehicle collision, but she did not lose time from work.

In 1991, Ms. Briere began working for Lowell General Hospital. On unspecified dates, with injury reports for some dates, she injured her back and hips. In 2004, she sought medical treatment after being involved in another car accident.  She was then treated for hip and back pain in 2005, as well as neck and back pain in 2008.

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In a recent opinion, the Massachusetts Department of Industrial Accidents, Reviewing Board, reviewed a decision awarding benefits to an employee injured in the course and scope of her employment. One issue in this appeal was whether the judge had properly awarded the employee partial incapacity benefits based on an earning capacity above minimum wage, without evidence showing that her earning capacity was in fact above the hourly minimum wage.

In this case, the employee had appealed a decision awarding her a closed period of § 35 partial incapacity benefits, based on an earning capacity of $360.00 per week. She was also awarded § 30 medical treatment based on a contusion to her left hand. The Massachusetts Reviewing Board found that the employee’s award should be reduced to reflect the minimum wage at the time of the order, since there had not been vocational testimony assisting in determining the amount she should receive.

The employee worked as a construction supervisor and claimed that she injured her left hand, left arm, shoulder, neck, lower back, and hip when a box truck sideswiped her car while she had her left hand extended out the window.  The judge did not credit the testimony the employee gave regarding how the accident took place, or the injuries she had suffered.  He did adopt the impartial examiner’s medical opinions and the self-insurer’s examining orthopedist’s opinions, finding the employee sustained a contusion of her left hand.

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In this appeal before the Massachusetts Department of Industrial Accidents, the Reviewing Board recommitted a case in which the judge made inconsistent and contradictory findings. Specifically, the judge ruled on whether the employee stated a valid claim for benefits and medical treatment after suffering a compensable injury.  The issue was whether the treatment, a dental bridge, directly related to the work-related incident or was due to a pre-existing dental condition.

At the time of the hearing, the employee was 57 years old, a paraprofessional who worked with autistic children. An industrial accident took place when the employee had been holding a child in her lap, and he hit her in the face with his head. After a conference, the judge denied the employee’s claim for medical benefits.

The insurer then raised § 1(7A) as an affirmative defense at the hearing, which states that when a compensable injury combines with a pre-existing condition, which had resulted from a disease that is not compensable, the condition is compensable to the extent the compensable injury was a major cause of the disability or treatment need. At the hearing, the issue was the extent to which the work incident damaged the employee’s teeth, which led to the medical need for a bridge.

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The Massachusetts Reviewing Board of Industrial Accidents recently affirmed a decision in favor of an employee after the employer’s self-insurer attempted to reduce the payment owed after having reached a negotiated agreement. The Board relied on precedent in a similar case, stating that when an agreement is reached, and a negotiated figure is determined, which is less than what the employee might originally seek or potentially recover, it is the obligation of the self-insurer (or party to the agreement) to pay that sum.

On August 25, 2010, the employee in this case suffered a compensable injury to her right knee.  Years later, in March 2013, she filed a claim for $19,269.23 for loss of function and for disfigurement benefits under § 36.  The parties then completed a Form 113, “Agreement to Pay Compensation,” and the judge approved the form. This Agreement obligated the self-insurer to pay the employee her § 36 benefits and her attorney’s fees.  Specifically, the agreement required the self-insurer to pay $14,000 in § 36(k) benefits and $1,000 in attorney’s fees under § 13(A).

The self-insurer did not pay this amount but relied on a payment reduction provision in § 13A(10). They reduced the payment to the employee by $1,000, due to the payment of $1,000 of attorney’s fees. The employee then filed a claim, seeking a § 8(1) penalty based on the self-insurer’s failure to pay her the full amount and for the $1,000 they offset. The judge denied the claim, and the employee appealed.

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The Massachusetts Supreme Judicial Court recently addressed the question of equity when an employer that is insured gives notice of a workplace injury to only one of two insurers, failing to notify the other.  The court in this case held that when two workers’ compensation insurance policies cover the same loss for an employee’s injury, the insurer that paid has a right of equitable contribution, and the employer cannot prevent the paying insurer from exercising this right by intentionally notifying only one of the insurers.

An individual who worked for Progression, Inc. was seriously injured in a motor vehicle collision while traveling for business. Progression bought two workers’ compensation insurance policies from two different insurers, the Insurance Company of the State of Pennsylvania (ISOP), and Great Northern Insurance Company. Both were primary coverage policies, rather than excess policies.

After his injury, the employee timely notified Progression of his injury and pursued a workers’ compensation claim.  Progression only notified ISOP, not Great Northern. ISOP began to pay workers’ compensation under the policy.

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