Massachusetts Workers’ Compensation Lawyer Blog

The Department of Industrial Accidents Reviewing Board recently decided an appeal in a workers’ compensation claim. In Comeau v. Enterprise Electronics, the employer’s insurer appealed an administrative judge’s decision awarding the employee § 34A benefits and § 50 interest from April 1996 and continuing. Ultimately, the Reviewing Board affirmed the benefits decision, only changing the interest award to begin on January 2010 and continuing.

In December 1993, the employee sustained a herniated lumbar disc while working. The insurer accepted liability for the injury and paid § 34 benefits to the employee until he returned to work, at which time the insurer paid § 35 benefits until March 1995. In October 1995, the employee suffered another disc herniation on the job when he slipped on a wet running board of a truck and fell to the ground. Due to ongoing back pain, the employee has not returned to work since December 1995.

Following a lengthy procedural history of several kinds of workers’ compensation benefit claims, appeals, and recommittals for findings, the administrative judge rejected the insurer’s defenses, found that the employee suffered a new industrial injury in October 1995 that was a major cause of the employee’s disability and need for treatment, and ordered it to pay interest. On appeal, the Reviewing Board considered the insurer’s many arguments, in particular that the decision of the administrative judge was arbitrary and capricious in rejecting the insurer’s defenses of the statute of limitations, late notice, laches, and others.

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In Joao Deoliveira v. Calumet Construction Corp., et al., the Reviewing Board of the Department of Industrial Accidents considered an appeal by an employer’s workers’ compensation insurance company of a decision ordering it to pay § 18 benefits to an employee who was injured while working for an uninsured sub-contractor of the employer. The employee was severely injured as a result of a fall at a building site as a framing carpenter, sustaining a spinal cord injury that rendered him paraplegic, as well as a significant brain injury requiring a partial lobectomy. At the hearing, the employee testified that he has no memory of who hired him to work at the construction site, of working at the construction site, or of the accident.Due to conflicting evidence regarding which sub-contractor was hired to perform the framing work, claims were made against the general contractor, as well as four other parties, only two of which were insured. All of the parties denied liability for the employee’s injuries and raised the defense of lack of employee/employer relationship. The facts involved in determining who was responsible for paying the employee’s workers’ compensation benefits were complicated, and they required the administrative judge to analyze testimony and other evidence to support inferences from which he arrived at his decision. The judge’s findings indicated that two uninsured sub-contractors were involved in the framing project, although the judge did not specifically identify which of the two had employed the injured employee. Pursuant to § 18, therefore, the judge ultimately found that the insurer of the general contractor was responsible for paying the employee’s workers’ compensation benefits.

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The Massachusetts Court of Appeals recently reviewed a workers’ compensation appeal from a decision of the reviewing board of the Department of Industrial Accidents, In re Sosa’s Case. The employee appealed the board’s order summarily affirming the administrative judge’s denial of the employee’s claim for incapacity and medical benefits.

On May 7, 2007, the employee suffered an industrial injury to his left upper extremity, which was accepted by the employer’s insurer. In a previous case, the employee was awarded temporary total incapacity benefits pursuant to G.L. c. 152, § 34 for the injury to his cervical spine and left shoulder. In January 2012, the employee filed a second claim seeking § 34 incapacity benefits and § 35 medical benefits related to injuries to his upper left arm and shoulder related to injuries sustained in the 2007 industrial accident.

The administrative judge specifically found that the employee’s testimony regarding his pain was not credible and denied the employee’s claim. The employee then requested the appointment of an impartial medical examiner. The impartial examiner opined that while the employee continued to suffer impairment from the 2007 industrial accident, he had reached a medical end result, and no further treatment was indicated. The impartial examiner also stated that the employee was capable of full-time employment with restrictions. However, since the administrative judge did not find the employee to be a credible witness, the judge did not adopt the parts of the medical examiner’s opinion that were based on the employee’s statements regarding the injury and his pain.

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In a recent decision, the Massachusetts Department of Industrial Accidents Reviewing Board affirmed a judge’s determination of average weekly wages in a workers’ compensation dispute. The employee had sustained an injury to his wrist while working as a package handler for Federal Express. Along with his employment at FedEx, the employee also worked at his sprinkler business, as well as engaging in snowplowing. FedEx’s insurer sought recoupment for benefits paid to the employee when he was receiving income from his other businesses.

The judge adopted the opinion of the § 11A medical examiner, finding that the employee could not perform the heavy work required in his position at FedEx.  However, the judge also found that the employee had continued to operate his seasonal sprinkler business for six months out of the year, and he also had earnings from snowplowing during the winter months. Based on the evidence, the judge determined that the employee was entitled to no further weekly benefits and ordered recoupment of a specified amount to FedEx’s insurer.

The issue on appeal was whether the judge properly performed an average weekly wage calculation with the income derived from the employee’s second business and from operating a snow plow. The employee argued that, since the judge found that his post-injury work was seasonal employment, these earnings should be averaged over the course of a year, as they would be in determining average weekly wage, rather than over the actual number of weeks involved.

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In an appeal filed by the employer’s insurer, the Massachusetts Department of Industrial Accidents Reviewing Board affirmed an administrative judge’s award of workers’ compensation benefits pursuant to §§ 13, 30, 34, and 34A to an employee injured while working on the job.

On August 31, 2011, the employee sustained a work-related disc herniation. At the time of the injury, the employee was 63 years old and had worked in physically demanding occupations for most of his life. The employer’s insurer sought a modification of the employee’s § 34 benefits, while the employee sought § 34A benefits from November 1, 2012 forward. The insurer argued defenses of causation and extent of disability.

The employee was examined by an impartial medical examiner pursuant to § 11A, and the report was entered into evidence at the hearing. The administrative judge also allowed the parties to submit additional medical evidence from different doctors in support of their claims. At the hearing, the employee testified that prior to his injury he could lift up to 200 pounds, while currently he avoids lifting any more than 10 pounds. The employee also testified that the back pain resulting from his injury disturbed his sleep.

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The Massachusetts Department of Industrial Accidents Reviewing Board reversed an administrative judge’s award of workers’ compensation benefits that utilized an average weekly wage based on the higher wages the employee would have earned in a new position, rather than based on the previous 52 weeks of wages she earned before her workplace injury.

The employee was initially averaging a weekly wage of approximately $703. She was notified that she had received a promotion, for which she would be receiving $730 per week. The employee was scheduled to begin her new position on December 26, 2011. On December 20, 2011, the employee was training her replacement in her position when she slipped on wet flooring and fractured her kneecap. The self-insurer accepted liability and paid § 34 benefits to the employee until May 2012, and § 35 benefits thereafter. The benefits were based on an average weekly wage of $703.

The employee subsequently filed a claim in June 2012, seeking a retroactive adjustment and reinstatement of her § 34 benefits based on her anticipated future average weekly wage of $730. The administrative judge awarded § 34 benefits from December 21, 2011 and continuing based on an average weekly wage of $730, finding that the promotion was a certainty and would have taken place. The employer appealed, arguing that the decision was contrary to M.G.L.A. 152 § 1(1).

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In a decision by the Reviewing Board of the Department of Industrial Accidents, an administrative judge’s modification of workers’ compensation benefits from partial to permanent and total incapacity was found to be unsupported by evidence of a change in the employee’s condition. The Board reversed the administrative judge’s order, due to the fact that the administrative judge’s decision was based largely on the speculative and possible need of the employee to undergo surgery sometime in the future.

The employee had injured her left shoulder and neck while working as a chef in 2010. Her employer’s insurer accepted liability for the injury, and the employee underwent surgeries for her neck and shoulder. In 2013, the insurer filed a complaint to modify or discontinue benefits, which was joined with the the employee’s claim for benefits under § 34A for permanent and total incapacity, or in the alternative, partial benefits under § 35. At a hearing in front of the administrative judge, the employee testified that she was awaiting the results of an MRI to discuss additional surgery. The judge adopted the opinion of the § 11A medical examiner that the employee’s work injury was the cause of her ongoing disability and need for treatment, and found the employee’s testimony regarding her injuries credible. Based on this evidence, the judge found that the employee was partially disabled and capable of part-time minimum wage employment up to the date of the hearing.

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In a newly published opinion, Merchants Insurance Group v. Spicer, the Appeals Court of Massachusetts decided the issue of whether a workers’ compensation insurer may file an action in Superior Court to retroactively void an employer’s policy while an injured employee’s benefits claim under the policy is pending with the Department of Industrial Accidents. The court answered no, holding that an insurer must exhaust its administrative remedies with the Department of Industrial Accidents before bringing an action in court.

The employee in this case was seriously injured while working for his employer, a landscaping business. The employee subsequently filed for workers’ compensation benefits. The employer’s insurer contested the employee’s claim, and the matter remained pending for a formal evidentiary hearing. While the claim was pending before the Department of Industrial Accidents, the insurer filed a complaint in Superior Court against the employer and employee, claiming that the employer fraudulently obtained its workers’ compensation policy by making material misrepresentations in its application. The employer did not file any answer to the complaint. The employee did file an answer but did not oppose the insurer’s motion for summary judgment against him. Thus, the insurer secured a declaratory judgment in its favor, without ever litigating the issue of fraud.

The insurer then attempted to use this judgment in the pending proceeding with the Department of Industrial Accidents to dismiss the employee’s claim. The administrative judge denied the insurer’s motion, and the insurer filed a second claim with the Superior Court to enjoin the Department of Industrial Accidents from going forth with any proceedings, pursuant to the declaratory judgment. The Workers’ Compensation Trust Fund (Fund) was permitted to intervene in that action and submitted a motion to dismiss on behalf of the employee, arguing that the court lacked subject matter jurisdiction because the insurer failed to exhaust its administrative remedies. The Superior Court agreed, dismissing the insurer’s claim, and the insurer appealed.

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In a recent workers’ compensation case involving supervisor misconduct, the Massachusetts Court of Appeals affirmed a decision of the reviewing board of the Department of Industrial Accidents awarding double compensation benefits pursuant to § 28 of the Massachusetts Workers’ Compensation Act. The court agreed with the board’s finding that the employee had been injured by the serious and willful misconduct of a supervisor employed by the company, which warranted double compensation under § 28.

The employee in In re Svenson’s Case had been working in the radiography department of a manufacturing facility as a Level I X-ray technician. A Level II inspector, responsible for quality control of the employee’s X-rays, had an issue with the employee’s X-rays. They discussed the matter with their Level III supervisor, who stated that the X-ray was fine. Afterward, the employee went to the inspector’s office and asked what specifically was wrong with the X-ray so that he could better understand the problem. This started an argument, and the inspector grabbed the employee by the shirt and shoved him into a wall. He started punching the employee and threw him to the ground, where the employee hit his head on the concrete floor. The inspector continued choking and punching the employee until a union steward came and pulled him off. The inspector resigned, and the employee’s record was expunged of the incident after an investigation. The employee was subsequently diagnosed with major depression and posttraumatic stress disorder as a result of the incident.

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In a newly released opinion, the Appeals Court of Massachusetts analyzed the issue of whether a staffing company’s workers’ compensation insurance policy precludes a temporary worker from suing his direct employer while on assignment for the staffing company. In Molina v. State Garden, the plaintiff was employed by a company that provides temporary staffing to business clients, such as the defendant. The plaintiff was assigned by the staffing company as a temporary worker at the defendant’s processing facility in Massachusetts. The plaintiff suffered a low back injury in the course of his work for the defendant, which was covered by the Workers’ Compensation Act. The plaintiff applied for and received benefits from the staffing company’s workers’ compensation insurer for the injuries incurred while working at the defendant’s facility.

The first issue for the court was whether the staffing company’s workers’ compensation policy immunized the defendant from tort liability under the exclusivity provisions of the Massachusetts Workers’ Compensation Act.  Pursuant to the Act, such benefits are the exclusive remedy for claims brought by an injured employee against an employer. To be eligible from immunity under the Act, an employer must be an insured person liable for the payment of compensation benefits, and the employer must be the direct employer of the employee.  When there is a general and special employer, as in Molina, § 18 of the Massachusetts Workers’ Compensation Act provides that compensation for the worker’s injury shall be paid by the general employer, unless an agreement between the parties provides that the special employer is liable. The court found that such an agreement existed between the staffing company and the defendant under the staffing company’s workers’ compensation policy, and thus the defendant is immune from tort liability.

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