Massachusetts Workers’ Compensation Lawyer Blog

A recent opinion released by the Appeals Court of Massachusetts, In re Driscoll’s Case, affirmed the decision of an administrative judge denying ongoing total incapacity benefits to an employee. The workers’ compensation case arose out of the employee’s claim that he suffered a work-related back injury in 2003. The self-insured employer had paid weekly incapacity benefits to the employee from July 22, 2003 through September 26, 2003. The employer, however, refused to pay the employee’s claim for ongoing benefits past that date.

At a hearing in front of the administrative judge, the employee, doctors, and an impartial medical examiner testified. Adopting the opinion of the impartial medical examiner, the administrative judge awarded medical benefits pursuant to G.L. c. 152 § 30 and total incapacity benefits under G.L. c. 152 § 34 to the employee through April 1, 2004.  The employee appealed that decision, seeking ongoing benefits past that date. The Department of Industrial Accidents reviewing board affirmed the administrative judge’s decision, and the employee appealed to the Appeals Court of Massachusetts.

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A recent decision by a Massachusetts Department of Industrial Accidents Reviewing Board, King v. APA Transport, Inc., No. 030256-99 (June 18, 2015), affirmed an administrative judge’s order requiring the insurer to pay an employee medical benefits pursuant to M.G.L.A. 152 §§ 13 and 30. The insurer appealed to the Reviewing Board, arguing that the judge erred by ordering it to reimburse the employee for co-payments made for work-related medical treatment, including prescription medications.

The employee had been previously awarded worker’s compensation benefits for a back injury that he sustained in 1999. He then filed a claim for §§ 13 and 30 benefits, seeking payment for medical expenses related to his back injury. Specifically, the employee requested reimbursement of the co-payments he paid for office visits to his psychiatrist, who was treating him for depression, as well as co-payments for the medications prescribed to him by his psychiatrist. The employee also sought co-payments for office visits to his primary care physician, who was treating him for his back injury, and co-payments for pain-related medications that were prescribed to him by his doctor.

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The Massachusetts Appeals Court released an opinion, In re Evans’ Case, reversing the decisions of the Department of Industrial Accidents and the administrative judge denying a worker’s claim for partial incapacity benefits under G.L. c. 152 § 35.

While working at his job with a construction company, the employee suffered injuries to his eye and abdomen as the result of an explosion. The company’s insurer accepted the employee’s claim and paid workers’ compensation benefits. The issue in this case was the employee’s claim for incapacity benefits, which hinged on whether the employee’s earning capacity was diminished as a result of any disability caused by the workplace explosion. Such benefits award compensation not for the injury sustained but instead for the impairment of earning capacity caused by the injury. The injury must somehow lessen the employee’s ability to work. If an employee must refrain from engaging in his former work because of the considerable risk of re-injury, and he pursues employment that provides lower wages to avoid the risk, he may be found partially incapacitated.

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The Department of Industrial Accidents Reviewing Board recently filed a decision addressing the issue of whether income earned from a second job at the United States Postal Service (USPS) may be included in the calculation of the employee’s average weekly wage for purposes of workers’ compensation benefits.

The employee worked full time at USPS, part time at Lowe’s, and part time as a security guard. He injured his neck while unloading appliances from a truck at Lowe’s. Lowe’s, a self-insured employer, accepted responsibility for the injury and paid the employee workers’ compensation benefits. The employee filed a claim seeking recalculation of his average weekly wage to include wages earned at USPS for the year prior to his injury, thereby increasing his benefits.

The Massachusetts Workers’ Compensation Act (Act) provides that total wages earned in the concurrent service of insured employers or self-insurers are to be used in calculating the average weekly wage. USPS, however, is not an “insured employer” for purposes of the Act because it does not participate in the Massachusetts workers’ compensation system. It is covered by the Federal Employees’ Compensation Act.

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In an opinion from the Appeals Court of Massachusetts released earlier this year, In re Hollow’s Case, the Appeals Court discussed the seemingly inconsistent decision of an administrative judge in granting an employee’s medical services claim while discontinuing his workers’ compensation benefits under § 34.

The employee was injured while working at a grocery store, when a 30-pound box fell from a shelf approximately 15 feet high and struck him on the head. The insurer accepted liability, and he began receiving temporary total incapacity benefits under § 34. A year later, the employee filed a medical services claim under G.L. c. 152 §§ 13 and 30 for Botox injections to treat his headaches, which he suffered as a result of the accident. An administrative judge granted the employee’s medical services claim. The insurer appealed that decision and also moved to discontinue his § 34 benefits. After a hearing at which the employee testified, the administrative judge ordered the employee’s § 34 benefits to be discontinued but required the insurer to pay for the employee’s Botox injections. The employee appealed to the reviewing board of the Department of Industrial Accidents, which affirmed the administrative judge’s order.

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The Appeals Court of Massachusetts recently affirmed a decision of the Department of Industrial Accidents Reviewing Board, In re Wicklow’s Case, 32 N.E.3d 369 (2015), which found that an employer’s acts caused the exacerbation of an employee’s pre-existing post-traumatic stress disorder (PTSD). As such, the employee was awarded workers’ compensation benefits under § 34 for temporary total incapacity.

The employee had a tragic history. Due to a traumatic personal background and family life, she suffered from PTSD and was diagnosed in the late 1990s. She started working as a dialysis nurse for her employer in 2000. Although the employee had been hospitalized in the past when her PSTD was triggered on other previous, non-work-related occasions, by 2005 her condition was stable.

A new supervisor was appointed in 2006, and the employee became distressed after several triggering workplace incidents occurred involving her new supervisor. In May 2009, the employee received a three-day disciplinary suspension, and she took six weeks of medical leave. She then filed for § 34 benefits, alleging that she sustained work-related emotional injuries as the result of at least 10 encounters with her supervisor, beginning in 2006 through May 2009.

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The Appeals Court of Massachusetts issued a recent opinion, In re Gayle’s case, 87 Mass.App.Ct. 1129 (2015), affirming the reviewing board’s decision to deny benefits in a workers’ compensation case.

On appeal was the issue of whether new medical opinions offered by the employee could overcome the preclusive effect of a prior decision from 2008, in which his benefits claim was denied for the same injury. The court also considered the employee’s argument that an error in the administrative judge’s opinion compelled reversal.

In July 2008, an administrative judge had denied the employee’s claim for permanent and total disability for an injury stemming from an industrial accident. At the hearing, both the employer and the employee presented expert medical testimony regarding MRI scans he had taken in 2004 and 2008. That decision was appealed, and the denial was affirmed by the reviewing board and the Appeals Court.

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In a recently released opinion, In re Richards’s case, App. Ct. Mass. (2015), the Appeals Court of Massachusetts had before it an issue of whether the doctrine of res judicata barred the employee’s claim. The case stemmed from an alleged injury that occurred in December 2003.

In May 2005, the employee had filed a workers’ compensation claim, which was heard by an administrative judge, and an opinion that was written stated that the employee had failed to meet the burden of proof required to establish that she sustained an injury arising out of and in the course of her employment. She was unable to establish that lifting boxes contributed to her injury, or rather that she suffered subsequent disability from employment. The decision in that case was affirmed by an appellate board and affirmed again by the Appeals Court.

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In a recent opinion, Marchand v. Department of Correction, Mass. App. Ct. (2015), the Massachusetts Appeals Court recently heard an appeal from a trial court decision, which found that the plaintiff was entitled to continue to receive assault pay benefits for as long as he also received workers’ compensation benefits. The issue stemmed from a disagreement regarding whether the employer was required to continuing paying assault benefits, which would amount to the plaintiff’s full salary, even though he was no longer employed by the state.

The plaintiff was employed as a correctional officer when he attempted to prevent an inmate from assaulting another officer, resulting in an injury to himself. The plaintiff thereafter applied for and was granted workers’ compensation benefits, in the form of temporary total disability benefits for a period of several months and partial disability benefits for a period of five years thereafter.

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According to a statement made by the Massachusetts Attorney General this week, the owner of an asbestos abatement company was allegedly indicted this month and will face arraignment next month in connection with purportedly failing to report the nature of his company’s work accurately, in order to avoid having to pay thousands of dollars in workers’ compensation insurance premiums.

The business owner was indicted on six counts of larceny over $250 and six counts of workers’ compensation fraud. He was reportedly the sole owner of the business in question. At this time, it is unclear whether any employees were denied worker’s compensation on the basis of his actions.

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