Massachusetts Workers’ Compensation Lawyer Blog

In a recent decision, the Massachusetts Reviewing Board of Industrial Accidents considered whether workers’ compensation benefits were properly awarded to an employee suffering from psychiatric injuries. In the case of Jane Sgouros v. Department of Transitional Assistance, the employee filed a claim for benefits due to a variety of mental and emotional conditions she claimed to have suffered as a result of her job as a case manager. Specifically, the employee stated that she was verbally abused by a client on December 23, 2013. She also testified that for 10 years prior to that incident, she suffered continuous verbal abuse from other clients, she was bullied by supervisors, and her requests for assistance were ignored. The employee had been receiving treatment from a psychiatrist for anxiety issues for approximately 10 years.

The employee was examined by a psychiatrist and an impartial medical examiner, who found that the employee was currently medically disabled. On the issue of causation, the doctor opined that although the employee had managed to work in spite of her history of family trauma before the December incident, it triggered a breakdown from which the employee was unable to overcome her symptoms. The administrative judge awarded the employee § 34 benefits for total incapacity, along with § 13 and § 30 benefits.

In Massachusetts, personal injuries covered by workers’ compensation include mental or emotional disabilities only when the predominant contributing cause of such a disability is an event or series of events occurring within the employment. On appeal, the employer argued that there was no medical evidence that the predominant contributing cause of the employee’s disability was an event occurring within her employment. The issue for the Reviewing Board, therefore, was whether the impartial medical examiner’s opinion that the December event “was the proverbial straw that broke the camel’s back” indicated a predominant contributing cause.

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In a newly issued decision on a workers’ compensation appeal, the Massachusetts Reviewing Board of Industrial Accidents reviewed an administrative judge’s decision regarding an employee’s claim for total incapacity benefits. In Charles Berfield v. North Shore Medical Center, the employee was working as a mental health counselor when he was assaulted and beaten by a patient in a locked ward, sustaining multiple injuries. His employer accepted liability for the workers’ compensation claim and paid § 34 temporary total incapacity benefits from the date of the injury. The employer subsequently filed a claim seeking to modify or discontinue the employee’s weekly benefits, while the employee filed a claim for § 34A permanent and total incapacity benefits.

At the hearing, the administrative judge found that the medical issues were complex and allowed the parties to submit additional medical evidence. Relying on the medical opinion of the § 11A independent medical examiner, the judge determined that the employee had right shoulder limitations as a result of the work injury, but the left shoulder complaints were not causally related to the industrial accident. The judge also found that the employee had a pre-existing post-traumatic stress disorder and depression that combined with the work injury to require treatment. The administrative judge discontinued payment of § 34 temporary total incapacity benefits and ordered the employer to pay § 35 partial incapacity benefits.

On appeal, the employee argued that the administrative judge ignored evidence pertaining to his left shoulder, particularly medical reports of the employee’s doctor that had been submitted at the conference and reviewed by the impartial medical examiner. The Board disagreed, finding that the medical reports at issue were not introduced at the hearing. As a result, the judge was not in error.

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In a recent case, the Massachusetts Reviewing Board of Industrial Accidents reviewed an appeal by an employer of a decision awarding workers’ compensation benefits to its employee. In Peter Bennett v. Northeastern University, the employee had worked as an HVAC foreman and technician from 2004 through 2008. The employee claimed that he sustained a pulmonary injury arising out of and in the course of his employment with the university. The employee was awarded § 34 temporary total incapacity benefits from 2008 until 2011, followed by § 34A permanent and total incapacity benefits, and medical benefits. The parties appealed.

The employee was examined by an independent medical examiner pursuant to § 11A(2), and since the medical issues were complex, the parties were allowed to submit additional medical evidence at the hearing. The administrative judge found that after working in proximity to an area where stripping chemicals were used, the employee’s ability to physically breathe was affected, requiring medical treatment, and the employee was no longer able to work. On appeal, the employer argued that since the judge’s findings failed to identify a date of exposure or onset of symptoms, they were insufficient to establish a date of injury.

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The Massachusetts Reviewing Board of Industrial Accidents recently reviewed an administrative judge’s decision regarding § 35 and § 36 benefits in a workers’ compensation appeal. In Donald Kendrick, Jr. v. Grus Construction Personnel, the employee sustained a work-related injury to his lower back, knee, shoulder, and elbow. The employer’s insurer paid § 34 total incapacity benefits from the date of injury until March of 2005. The administrative judge found that the employee was partially disabled and ordered the insurer to pay benefits, and that decision was subsequently affirmed by the Reviewing Board.

The employee then filed a claim for penalties under § 8(5) and § 14, alleging that the insurer failed to make the payments ordered in a timely manner. The judge denied the employee’s claim for penalties, finding that although the employee provided an earnings report, he failed to supply wage information for the period at issue, and did not attend a scheduled § 45 examination. The judge’s decision was eventually affirmed in part and reversed in part by the Massachusetts Court of Appeals, which ordered the administrative judge to determine the payments due and owing to the employee for the period in question. On recommittal, the judge found that the employee had forfeited benefits for specific periods by failing to prove lost wages. The judge also found that the employee’s increased pain after March of 2010 was no longer casually related to the 2004 industrial accident, but was due to aggravation suffered while working for subsequent employers. The judge therefore determined that the employee did not have any causally related incapacity or permanent loss of function under § 36.

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When an employee suffers a workplace accident that combines with his or her pre-existing medical condition, there are additional aspects considered in determining workers’ compensation benefits. The Massachusetts Reviewing Board of Industrial Accidents recently reviewed an administrative judge’s denial of benefits in a workers’ compensation appeal in Kelly Anne Martinson v. Atlantic Hospitality Group, LLC.

The employee worked as a manager in a restaurant, assisting the wait staff if it was busy. On December 16, 2012, the employee was assigned to work the buffet at a concert performance on the employer’s premises, and transported food and stacks of plates to the buffet table throughout the day. At the end of the day she experienced pain in her lower back and legs, and subsequently sought treatment from a doctor. On the advice of her doctor, she left work, and after declining an offer of light duty work with the employer, commenced employment elsewhere.

The employee claimed that work-related incidents combined with her pre-existing, non-industrial medical condition, had caused her injury. The employee was examined by an independent medical examiner, who did not find any causal relationship between the employee’s symptoms and a specific injury at work. The employee also submitted additional medical evidence.

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The Massachusetts Reviewing Board of Industrial Accidents recently reviewed an administrative judge’s decision in a workers’ compensation appeal. In Roberto Fernandez v. State Street Development, the employee suffered a compensable injury and claimed loss of function and disfigurement benefits pursuant to § 36(h) and § 36(k) of the Massachusetts Workers’ Compensation Act. The employee was awarded § 36 benefits of approximately $8,000 plus interest, as well as attorney’s fees, in a conference order in January 2012. The order also provided that the employer’s insurer could withhold the employee’s share of the attorney’s fees in accordance with § 13A(10) and relevant regulations. The employee did not appeal the order. The insurer subsequently reduced the employee’s award by the amount of the attorney’s fees.

In July 2013, the Massachusetts Supreme Judicial Court issued an opinion known as In re Spaniol’s Case. The Supreme Judicial Court held that an award of compensation under § 36 for specific injuries is not subject to an offset for an attorney’s fee pursuant to § 13A(10). The court further found that the definitions of “cash award” and “amount payable” to the employee within the first month from the date of the voluntary order were inconsistent with the legislative intent. The decision of the Supreme Judicial Court in this case therefore voided these definitions.

The employee then filed a new claim, seeking § 8(1) penalties and § 13A attorney’s fees in light of the Supreme Judicial Court decision in Spaniol’s Case. Pursuant to § 8(1), an insurer that fails to pay an employee under the terms of an order is subject to a penalty of up to $10,000. But the employee’s claim was denied on the basis that the employee failed to appeal the 2012 conference order, which allowed the insurer to offset the § 36 benefits award by the amount of the attorney’s fees.

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In an important decision, the Massachusetts Supreme Judicial Court issued an opinion regarding liens placed by workers’ compensation insurers on damages paid to employees through third-party settlements. In DiCarlo v. Suffolk Const. Co. (Mass. Feb. 12, 2016), the court addressed two separate cases in which a workers’ compensation carrier sought to apply liens to pain and suffering damages received by employees in their settlements with third-party tortfeasors. In a victory for injured employees, the Supreme Judicial Court ultimately held that damages for pain and suffering are not within a carrier’s lien. The court’s ruling means that employees may keep damages paid to them for their pain and suffering by a third-party.

The Massachusetts Workers’ Compensation Act is intended to provide the only legal remedy for industrial accidents suffered by employees against their employer. As such, employees are generally precluded from bringing personal injury claims against their employer as a result of a workplace injury if they are covered by workers’ compensation. However, in some cases where another party is responsible for the employee’s injuries, the employee may proceed with a civil suit against the third-party. If the employee succeeds in his or her claim against the third-party and is awarded damages pursuant to a judgment or settlement, the Workers’ Compensation Act allows the employer to recover the amount of workers’ compensation benefits that it paid to the employee. Specifically, pursuant to G.L. c. 152, § 15, when an employee recovers damages from a third party, the workers’ compensation insurer is statutorily entitled to a lien on the recovery in the amount that the insurer paid to the employee in benefits. In situations where the amount of the third-party settlement was less than the amount of the workers’ compensation lien, the insurer would often seek the entire amount. But, unlike workers’ compensation benefits, which do not provide damages for pain and suffering, personal injury claims allow for noneconomic damages, including pain and suffering.

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The Massachusetts Department of Industrial Accidents Reviewing Board recently reviewed an appeal involving workers’ compensation benefits in the matter of Steven Lupa v. United Parcel Service. The employee in the case appealed a decision of an administrative judge denying his claims for § 34 total incapacity benefits and § 35 partial incapacity benefits, as well as § 13 and § 30 medical benefits for bilateral knee replacements. On appeal, the employee contended that the administrative judge mischaracterized the impartial examiner’s opinions regarding the causal relationship between the injury and his work and his need for medical treatment.

The employee had worked for the United Parcel Service for 35 years before recently retiring, incurring several injuries that were accepted by the employer during his employment. In pursuing his present benefits claim, the employee was examined by an impartial medical examiner pursuant to § 11A. The administrative judge adopted the opinion of the impartial medical examiner that the employee’s work-related incidents, combined with the pre-existing degenerative osteoarthritis of both knees, caused the employee’s present complaints, disability, and need for treatment. However, the administrative judge also adopted the impartial medical examiner’s testimony that he could not state to a reasonable degree of medical certainty whether the employee’s arthritic changes resulted from the work-related incidents, or whether they occurred naturally and progressively. Based upon this testimony, the administrative judge concluded that the bilateral knee replacement surgery could not, within a reasonable degree of medical certainty, be found to be caused by the work-related accidents.

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The Massachusetts Department of Industrial Accidents Reviewing Board recently decided an appeal involving medical benefits and mileage reimbursement under the workers’ compensation laws. In Frances Margraf v. Central Berkshire Regional School District, the employer’s insurer appealed a decision of an administrative judge awarding benefits pursuant to G.L.c. 152 § 13 and § 30. On appeal, the Reviewing Board ultimately affirmed the decision, ordering the insurer to pay for all but one of the claimed prescriptions.

The employee was a paraprofessional who worked with special needs students. In March 2005, she suffered an injury to her lower back and right lower extremity, including her hip, thigh, hamstring, and ankle. As a result, the employee underwent reconstructive surgeries on her right ankle. The insurer accepted liability for the diagnoses of chronic lower extremity weakness, right ankle injury, and intervertebral displacement. The employee subsequently filed a claim for § 13 and § 30 benefits for prescription medications for chronic pain, as well as mileage reimbursement for medical appointments.

The employee was examined by an independent medical examiner pursuant to § 11A. The insurer offered additional medical reports from another doctor in order to support its contention that the work injury was no longer a major cause of the employee’s disability or need for treatment under § 1(7A). Finding that the matter was not medically complex, the judge denied the insurer’s motion to allow the additional reports. The judge also found that the employee’s testimony was credible and adopted the opinion of the independent medical examiner that the requested prescriptions were reasonable, necessary, and related to the injury. As a result, the judge ordered payment for those prescriptions, monitoring of those medications, and payment of the mileage request.

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A Massachusetts court recently reviewed a decision of the Department of Industrial Accidents regarding workers’ compensation benefits in the case of Giraldo v. Dep’t of Indus. Accidents (Mass. Super. Jan. 12, 2016). In Giraldo, the primary issue for the court was whether the Department erred by dismissing the employee’s claim for disfigurement benefits based on its finding that the claim had been previously filed and denied.

In 2004, the employee was injured in a workplace accident and awarded workers’ compensation benefits, which he received for the next five years. In December 2008, a Department administrative judge denied the employee’s claim for permanent incapacity benefits and ordered that his benefits end entirely. In 2009, the employee filed a new claim for disfigurement benefits based on the same injury. His claim was denied, and the appeal was dismissed after the employee failed to pay the filing fee. The employee filed another claim in 2011 for disfigurement benefits, which was denied because he had failed to perfect his appeal in the prior claim.

In the current case, the court addressed yet another claim filed by the employee for disfigurement. The claim was denied by the administrative judge, who found that the employee was unable to submit any evidence distinguishing the new claim from his previously filed and dismissed claims. On appeal to the court, the employee invoked G.L. c. 152, section 14(1) against his employer’s insurer, contending that it wrongfully failed to pay benefits on his previous claims. The employee also argued that he had the right to proceed with his claim, despite the lack of evidence to distinguish the present claim from his previous benefits claims.

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