Massachusetts Workers’ Compensation Lawyer Blog

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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Recently, the Massachusetts Reviewing Board of Industrial Accidents addressed an appeal in a case involving benefits for a work-related limp suffered by an employee. At issue was not the cause of the injury but instead the amount of benefits awarded the employee.  The judge had not relied upon a medical report, and the insurer appealed on the ground that it should have been factored into the assessment of the employee’s limp.

The insurer for the employer appealed the decision in favor of the employee, who was awarded $10,940.70 under § 36(1)(k) for a work-related limp.  This section of Massachusetts law provides that an employee shall be paid compensation for specific injuries, including those for bodily disfigurement.

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The Massachusetts Reviewing Board of Industrial Accidents recently reviewed an administrative judge’s decision regarding § 34 and § 35 benefits in a workers’ compensation appeal.  Specifically, the judge allowed the employer’s insurance company to submit additional medical evidence in support of modifying the injured employee’s benefits.

At the time of the hearing, the employee, Jeffrey Spencer, was 48 and had experience as a construction worker, tree climber, pruner, and truck driver.  He worked as a concrete mixer driver for JG MacLellan Concrete Co., his employer.  Mr. Spencer’s position required driving the concrete mixer driver for the employer and mixing the concrete, as well as installing heavy (60-90 pounds) metal chutes to deliver the concrete at the worksite.

On November 25, 2013, Mr. Spencer slipped and fell on a wet surface, and his arm was caught as he fell, causing a work-related injury to his right shoulder.

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Recently, the Massachusetts Reviewing Board of Industrial Accidents analyzed the issue of adopting medical opinions consistent with facts regarding workers’ compensation benefits for an employee suffering from work-related injuries. Kujtime Uka, an employee of Westwood Lodge Hospital, appealed a decision denying her claim for benefits based on two work-related incidents.   In Uka v. Westwood Lodge Hosp., the Reviewing Board assessed the judge’s factual findings and held they were inconsistent with the medical opinions regarding the injured employee’s alleged psychiatric conditions.

Ms. Uka worked as a Mental Health Associate for the Hospital.  The judge found that Ms. Uka was assaulted by patients on October 20, 2006, and again at work on May 26, 2008.  After suffering physical injuries, Ms. Uka was incapacitated from work from July 1, 2010 to October 11, 2011.  The judge also determined that Ms. Uka’s treatment for headaches and physical injuries was reasonable and compensable.  After adopting portions of the medical opinions of a medical professional, Dr. Michael Rater, M.D., the judge held that the assaults suffered by Ms. Uka did not cause her post traumatic stress disorder (PTSD) or other psychiatric conditions.

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The Massachusetts Department of Industrial Accidents Reviewing Board reversed an award of § 34A permanent and total incapacity benefits granted by an administrative law judge because the injured employee did not present credible evidence of the need for an award of these benefits.  Instead, in this decision, the Board granted the employee § 35 benefits for partial incapacity.

In this case, a 54-year-old food service worker with over 20 years of experience in the industry claimed that she suffered injuries to her neck and shoulder while working as a chef.  Following her injury, her employer accepted liability for her harm, and the employee underwent two surgeries.  More than two years later, her employer moved to discontinue her workers’ compensation benefits payments.

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In a recent opinion, the Appeals Court of Massachusetts reviewed a workers’ compensation case in the matter of In re Murphy, 89 Mass. App. Ct. 1122 (2016). The employee appealed a decision of the Reviewing Board of the Department of Industrial Accidents, which affirmed an order by the administrative judge denying his claim for total benefits under G.L. c. 152 § 34A and partial benefits under § 35. In addition, the employee’s claims for interest and penalties under § 8(1) and attorney’s fees pursuant to § 13A were denied.

On appeal, the employee argued that the administrative judge erred in determining that his carpal tunnel syndrome had not worsened. Specifically, the employee maintained that the causally related condition of his left wrist was definitive proof that a change in condition existed. The appeals court, however, found that the medical evidence indicated that the employee’s carpal tunnel syndrome had in fact improved since he had stopped working. As a result, the court found the administrative judge did not err in denying partial and total benefits to the employee.

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In a newly released decision, the Massachusetts Reviewing Board of Industrial Accidents addressed the issue of crediting workers’ compensation benefits paid by another state to a Massachusetts insurer. In Deborah Dean v. Access Nurses, Inc., the employee appealed from an order awarding her a closed period of § 34 total disability benefits, but it allowed her employer’s insurer to take credit for unemployment compensation disability benefits paid by the state of California.

The employee was a California resident working as a traveling nurse. While on assignment in Massachusetts, she fell and fractured her wrist while leaving her apartment for work. The employee’s injury was initially found to be noncompensable under the “going and coming rule,” which bars compensation for an injury occurring when an employee is simply going to or coming home from work. However, that ruling was reversed on appeal because the rule had no application to the employee’s situation as a traveling employee. On recommittal, the judge found the employee totally incapacitated as a result of the industrial injury and awarded benefits for the period up until the employee returned to full-time work. The judge also ordered that the insurer credit itself with any California benefits paid to the employee for the same injury. On appeal, the employee argued that the judge erred in allowing the credit for California benefits.

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In a newly issued decision, the Massachusetts Reviewing Board of Industrial Accidents considered an appeal regarding workers’ compensation benefits awarded after an untimely order of an administrative judge. In Albert Mancini v. Suffolk County Sheriff’s Department, the worker sustained injuries to his lower back, right knee, and left elbow in an altercation with an inmate. The insurer disputed liability, and a hearing was conducted in March 2011. The administrative judge issued a decision nearly three and a half years later, awarding the employee § 34 benefits immediately followed by § 35 benefits, and denying the employee’s claim for a psychiatric injury as well as the employer’s § 27 defense that the employee was injured as a result of his own serious and willful misconduct.

On appeal, the primary issue for the Reviewing Board was whether the parties were prejudiced by the administrative judge’s failure to file a timely decision. The employee requested recommittal of the case to a new administrative judge, which would essentially result in relitigation of the nature of the employee’s injury, the causal relationship between the back injury and his need for surgery, and the issue of his disability relating to the combined back and knee injuries. The employer requested the right to contest ongoing incapacity from the day after the close of evidence, September 2011, and continuing.

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In a newly issued decision concerning workers’ compensation benefits, the Massachusetts Reviewing Board of Industrial Accidents determined whether § 36 benefits were appropriately awarded to an employee after his employer’s insurer appealed the decision. In Scott Marino v. Progression Systems (April 5, 2016), the employee was injured in a catastrophic accident while on a business trip outside the country, when the car in which he was a passenger rolled over. The employee was rendered tetraplegic and confined to a wheelchair, receiving a long course of physical and occupational therapy.

The employee filed a claim for § 13, § 30, and § 36 benefits under the Massachusetts Workers’ Compensation Act. He was awarded § 36 benefits in the amount of $297,661.79, which included $25,344 for scarring and disfigurement, as well as reimbursement for medications, mileage, and parking. The administrative judge also ordered the insurer to pay for 24-hour nursing care, seven days a week. The insurer appealed, contending that the § 36 award exceed the maximum allowable amount of $15,000 for scarring and disfigurement, among other arguments. Specifically, the insurer argued the judge erred by including payments for $10,344 for scarring in addition to $15,000 for use of a wheelchair in violation of § 36(1)(k).

Pursuant to MGLA 152 § § 36(1)(k), an employee shall be paid for specific injuries, including bodily disfigurement, in an amount that is a proper and equitable compensation, not to exceed $15,000. However, no amount is payable for disfigurement that is purely scar-based, unless such disfigurement is on the face, neck, or hands. In interpreting the statute, the Reviewing Board held that the $15,000 limitation applies to all bodily disfigurements, both scar and non-scar based, resulting from a single injury. Therefore, the Board reversed the award of $25,344, finding that the insurer’s liability was limited to $15,000 for both the employee’s use of a wheelchair and scarring.

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In some cases, workers’ compensation appeals are not resolved by the Massachusetts Reviewing Board of Industrial Accidents and must be recommitted to the administrative judge for further findings of fact. In a recent opinion, the Reviewing Board was faced with just such an appeal in the matter of William Herrera v. Mediate Management, Inc. In April 2010, the employee was working as a building janitor when he sustained a work-related injury to his right knee. The employer’s insurer accepted liability for the injury and paid § 34 total incapacity benefits for three years. Once the employee’s § 34 benefits were exhausted, the insurer paid partial incapacity benefits under § 35. The employee subsequently filed a claim seeking payment of § 34A benefits.

At the hearing, the administrative judge found that the medical issues were complex, and the parties were allowed to submit additional medical evidence. The employee was also examined by an independent medical examiner pursuant to § 11A. The judge denied the employee’s § 34A claim, finding that the employee was partially disabled and possessed a part-time minimum wage earning capacity. The employee then appealed the judge’s decision to the Reviewing Board.

On appeal, the Reviewing Board could not determine from the judge’s findings whether the employee sustained a combination injury, or whether he had two separate conditions that did not combine with each other. Since the insurer raised § 1(7A) as a defense, the Board found that the parties were entitled to findings addressing whether it applies. As a result, the Board remanded the issue for the judge to perform the analysis required by Vieira v. D’Agostino Assocs.

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