Massachusetts Workers’ Compensation Lawyer Blog

The Massachusetts Department of Industrial Accidents Reviewing Board evaluated an appeal involving MGLA 152 § 34 workers’ compensation benefits in the matter of Adrian Aleman v. City of Boston. The parties appealed from a decision awarding the employee § 34 benefits after a work-related accident was found to be a traumatic aggravation of an underlying lumbar disc derangement. The employer argued that the medical evidence supporting the finding was insufficient and that the employee had not met his burden of proof under MGLA 152 § 1(7A).

The employee began working for the City of Boston as a meter servicer in 1994. The employee had sustained previous, non-work-related injuries to his back from two car accidents that occurred in 1996 and 2006. In 2008, the employee was injured while working when he stepped on uneven concrete, twisting his right foot and ankle. He received § 34 total incapacity benefits until July 4, 2009, when he returned to limited duty work. He then began receiving § 35 partial incapacity benefits until he returned to full duty work in October 2009. The employee continued to work full time until July 25, 2012, when he fell in the course of his employment, resulting in the leg and back pain injury at issue.

Under Massachusetts workers’ compensation laws, if a compensable injury combines with a pre-existing condition, which resulted from an injury that was not covered by workers’ compensation, and thereby causes or prolongs a disability or a need for treatment, the resulting condition is covered only to the extent that such an injury remains a major but not necessarily predominant cause of a disability or a need for treatment. MGLA 152 § 1(7A).

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The Massachusetts Department of Industrial Accidents reviewed a decision of an administrative judge regarding an employee’s workers’ compensation benefits in Antonia Miranda v. Huntington Hotel Corporation. On March 6, 2010, the employee suffered a back injury when lifting trash while working at her job as a housekeeper. The employee underwent two back surgeries as a result of the injury. The employer’s insurer paid § 34 total incapacity benefits to the employee until April 10, 2013, when compensation was exhausted pursuant to the 156-week period specified in the statute. The employee subsequently filed another claim for § 34 total incapacity benefits from April 11, 2013 forward, the subject of the appeal.

Prior to the hearing, the employee was examined by an independent medical examiner pursuant to § 11A. His report was submitted into evidence, and neither party submitted any additional medical evidence. The insurer, however, produced witness testimony from an investigator it had retained at the hearing, and it submitted the investigator’s report of his surveillance of the employee into evidence. The report stated that the investigator observed the employee over a four-and-a-half-hour period, during which time she made a trip to the bank and then walked through the mall with three other women while shopping. The judge ultimately adopted the opinion of the independent medical examiner, which found that the employee was unable to return to housekeeping work but could perform light duty work involving sitting, standing, or walking for up to four hours. The administrative judge therefore concluded that the employee had an earning capacity and awarded § 35 benefits from December 4, 2013 and continuing. Both the employee and the employer’s insurer appealed.

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The Appeals Court of Massachusetts addressed the issue of partial incapacity benefits pursuant to G.L. c. 152 § 35 in a workers’ compensation claim, In re Barbosa’s Case, 10 N.E.3d 1144 (Mass. App. Ct. 2014). The court was presented with an employee’s appeal of a decision of the reviewing board of the Department of Industrial Accidents, which had denied him partial incapacity benefits.

In May 2006, the employee suffered a workplace injury to his lower back and received § 34 total incapacity benefits and § 35 partial incapacity benefits until his return to full-time duty in September 2006. The employee subsequently left that job and took a lower-paying position. The employee then filed a claim seeking § 35 benefits from November 2006 and continuing, alleging that his 2006 injury had forced him to seek lighter and lower-paying work. That claim was denied in 2009 by an administrative judge.

The employee filed another claim, which was the subject of the appeal, asserting that his back condition had worsened since the 2009 decision. The claim was denied by a different administrative judge, who found a perceived pattern of the employee withholding impartial information from the impartial physicians in order to manipulate conclusions. The employee appealed that decision to the reviewing board, which found that the employee failed to produce medical evidence that his back condition worsened to cause an incapacity and that such worsening was causally related to the 2006 injury.

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The Department of Industrial Accidents Reviewing Board recently released a decision in the matter of Karen L. Wunschel v. Charter Communications. In a previous 2011 hearing decision, an administrative judge found that the employee suffered workplace injuries. That decision was not appealed, and the employee subsequently filed claims for workers’ compensation benefits pursuant to M.G.L.A. 152 § 13, § 30, and § 36. At the hearing regarding these subsequent claims, no witness testimony was taken. The administrative judge based his decision solely upon the prior 2011 decision, medical evidence, and the parties’ briefs. Ultimately, the employee was awarded workers’ compensation benefits for specific injuries pursuant to § 36, as well as home health care benefits pursuant to § 13 and § 30.

The employer’s insurer appealed the decision, contending that since the employee failed to comply with the evidentiary standard required by Massachusetts Regulations, the award of § 36 benefits should be reversed. Under M.G.L.A. 152 § 36, an employee is entitled to a lump sum for certain serious injuries that are enumerated in the statute, such as disfigurement, amputation, loss of vision or hearing, and others. Pursuant to 452 Code Mass. Regs. § 1.07(2)(i), claims for § 36 benefits must include a physician’s report indicating the maximum medical improvement that has been reached and a medical opinion as to the permanent functional loss according to the American Medical Association’s guide. In Wunschel, it was undisputed that the employee failed to present a medical evaluation as required by § 1.07(2)(i). The Reviewing Board, however, found that since the insurer failed to object to the lack of medical evaluation or avail itself of any other available options, the issue was deemed waived.

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The Massachusetts Department of Industrial Accidents Reviewing Board recently reviewed a decision denying workers’ compensation benefits in the case of Root v. G. Lopes Construction Co. The employee had been burned while working as a heavy equipment operator, and the employer’s insurer accepted liability for the employee’s burn injuries. The employee claimed additional benefits pursuant to § 28, which provides for double compensation in cases in which an employee is injured as a result of the serious and willful misconduct of an employer or supervisor.

After the hearing, the administrative judge found that the employee had experience conducting safety meetings, received fire prevention training, and two months prior to the accident at issue, attended a fire safety refresher course. The fire safety course instructed that water should not be used to extinguish chemical fires, and the fire department should be called. The judge also found that on the day of the accident, the employee knew there was some fuel in a diesel fuel tank he was scraping, but he continued to perform his job because he did not consider it to be especially hazardous. When the fire broke out in the tank, the employee attempted to put it out with a fire extinguisher and then poured water on it, causing the water and flames to splash out and severely burn him.

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In a newly released decision, the Massachusetts Department of Industrial Accidents Reviewing Board considered an appeal by the employer of an award of § 31 benefits. In the workers’ compensation appeal in Harris v. Plymouth County, the employee suffered work-related injuries to his neck and back. The self-insured employer paid § 34 total incapacity benefits to the employee until his death in October 2010, which was caused by excessive aspirin ingestion.

The employee’s wife filed a claim under § 31 for dependency benefits and § 33 for burial benefits. She was awarded § 33 benefits but was denied dependency benefits under § 31. The wife appealed, contending that since the employer failed to appeal the award of burial benefits, the causal relationship between the employee’s work-related injury and death was established. Specifically, since an award of § 33 burial benefits is proper only when an employee’s death is work-related, the wife argued that an unchallenged § 33 award establishes causation for purposes of § 31 benefits as a matter of law. Once causation is established, the only remaining issues are whether the claimant qualifies as a dependent, and the amount of the § 31 benefit award.

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The Reviewing Board of the Department of Industrial Accidents recently decided an appeal in a workers’ compensation case, addressing the issue of whether an employee has standing to claim reimbursement of § 13 and § 30 medical benefits from her employer’s insurer for treatment paid by MassHealth and Medicare.  The administrative judge denied the employee’s claim, finding that since the employee would not receive any benefit from a favorable decision, she lacked standing.  On appeal in Dominguez v. Rainbow New England Corporation, the Reviewing Board reversed, finding in favor of the employee.In Dominguez, the employee had settled her workers’ compensation case with her employer’s insurer for a lump sum after a right shoulder injury that occurred in December 2005.  Although all the employee’s medical bills had been paid, and the employee did not personally make any payments for medical treatment, the employee argued that the employer’s insurer had been unjustly enriched because MassHealth and Medicare had paid her medical bills.  The insurer contended that the employee did not have standing to raise her claim, since there was no controversy between the employee and the insurer.

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The Massachusetts Reviewing Board of Industrial Accidents recently considered an appeal of an administrative judge’s decision to deny an employee’s claim for workers’ compensation benefits. In Robert Correia v. Advanced Heating and Hot Water Supply, the employee worked for the employer for 11 years prior to his injury, performing work that included brazing, welding, and feeding metal tubes into a machine to fabricate residential hot water heater coils. The employee alleged that most of his time was spent coiling, during which he stood with his knees bent and the pedal depressed for up to an entire work day. On December 7, 2011, the employee felt pain in his right knee late in his shift and reported the injury to his supervisor. The employee sought medical attention and did not return to work for the next six days.

The testimony of the employee’s supervisor contradicted the employee’s testimony. It indicated that the employee rarely did coiling and that no injury had been reported on the day alleged by the employee. In addition, the plant supervisor testified that in a later meeting to discuss the employee’s medical restrictions imposed by his doctor, no mention was made by the employee or the doctor’s note that the physical restrictions were work-related. The administrative judge credited the supervisors’ testimony over the employee’s testimony, finding that the employee only performed coiling for 10-25% of the day.

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The Massachusetts Department of Industrial Accidents Reviewing Board recently issued a decision in the case of Gradziel v. Berkshire Medical Center, in which an employee appealed a decision from the administrative judge modifying her § 35 benefits. In the workers’ compensation appeal, the employee argued that the judge erred by basing her earning capacity on full-time employment, when she was only working part-time at the time of the injury and thereafter.

The employee had worked for the employer as a nurse for 24 years. For 12 years prior to the industrial injury, she worked 24 hours a week in three eight-hour shifts. In January 2009, the employee injured her left ulnar nerve while lifting a patient. She continued to work 24 hours a week in a light duty capacity until her surgery in May 2009. In accordance with the employer’s policy to limit the duration of temporary light duty work, the employee accepted a permanent light duty, telemetry job. The position was consistent with her permanent physical restrictions regarding repetitive use and lifting no more than 10 lbs.

The employer’s insurer filed a complaint for modification of the employee’s benefits, contending that the employee’s earning capacity should be calculated based on a 36-hour work week, at the hourly rate she was earning in her new telemetry position. Pursuant to § 11A, an independent medical doctor examined the employee and opined that she could work in her telemetry position 36 hours per week, and that she could also work at another job within the physical restrictions set by her physician up to 40 hours per week. Accordingly, under G. L. c. 152, § 35D(4), the administrative judge found the employee was capable of working 36-40 hours per week earning $22.90 per hour, her rate of pay in her telemetry job. The judge also found that, although the employee chose to work under 36 hours per week, her capacity is that of a full-time worker, with limitations.

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The Massachusetts Department of Industrial Accidents Reviewing Board reviewed a decision of an administrative judge regarding workers’ compensation benefits in the case of Outridge v. MCI Concord. In Outridge, the employee had been working for the employer since 1987 as a correctional officer. In 1993, the employee injured his right hand in a prison riot, and he returned to work after approximately three months of treatment. The employee worked full time until June 2013, when he could no longer perform his duties. The employee filed claims for workers’ compensation, asserting two dates of injury, the 1993 date and October 2012. He sought incapacity and medical benefits for bilateral carpal tunnel syndrome and CMC joint arthritis.

For the October 2012 injury, the administrative judge ordered the insurer to pay § 13 and § 30 medical expenses for bilateral upper extremity treatment, including all surgery and aftercare, as well as § 34 benefits from the date of surgery up to 60 days thereafter. Initially awarding no benefits for the 1993 injury, the judge permitted the employee to submit additional medical evidence and undergo an independent medical examination pursuant to § 11A. The judge subsequently determined that the medical evidence showed an industrial injury and aggravation of an underlying condition occurred on October 2012, as claimed by the employee. The judge also found that the injuries were causally related to the workplace and resulted in total incapacity for work from June 2013 and continuing. Therefore, the judge ruled that the employee’s medical treatments to date, including the surgeries for carpal tunnel syndrome and CDC joint arthroplasty, were reasonable, necessary, and causally related to the employee’s employment.

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