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The Massachusetts Appeals Court recently reached an opinion in the case of Nguyen v. Eastern Connection Operating, Inc., Mass. App. Ct. (2014), which elucidates two potentially common issues in workers’ compensation cases:  whether classifying a worker as an independent contractor can circumvent required coverage for employees, and whether a workers’ compensation rights waiver may be valid.

In the case, the plaintiff Nguyen was hired to deliver packages for the company Eastern. One day, when he was making a delivery for the company, he was injured in a car accident. Even though the company had workers’ compensation for Nguyen, it did not submit a claim on his behalf until he filed suit against the company. In his complaint, the plaintiff argued that the company had wrongfully misclassified him as an independent contractor, that he was wrongfully denied workers’ compensation benefits, and that as a result the company was liable for his injuries.

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In a recent case, Estate of Moulton v. Puopolo, the Massachusetts Supreme Judicial court handed down a landmark decision for workers’ compensation claims in Massachusetts.

The case arose out of an incident in which a 25-year-old female employee, who was working as a residential treatment counselor at a non-profit mental health and rehabilitation facility, was left alone with one of the facility’s residents, during which time the resident assaulted the employee and thus caused her death. Following her death, the employee’s estate brought a wrongful death action, essentially alleging that the employer was liable for the woman’s death because the employer failed to adopt proper policies to screen clients, and that as a result of this failure, the plaintiff (employee) was left alone with the client, who then killed her.

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Hasbro Employee Injured on Assembly Line Receives Benefits

When a self-insured employer appeals a decision awarding workers’ compensation benefits to one of its employees, it must at least raise its objections at the original hearing or risk losing the option on appeal. In the case at Board No. 007702-09, Hasbro, Inc., a national toy manufacturing company with a Massachusetts factory, lost a decision by the Reviewing Board of the Massachusetts Department of Industrial Accidents, at least partly because it failed to raise an objection at the hearing and tried to bring it up for the first time on appeal.

The employee, Maria Kiaresh, was a 57-year-old Italian immigrant who had come to the U.S. at age 13. She had no high school education and could not read or speak English. Her participation in her case required an interpreter. On May 17, 2005, while performing repetitive work on an assembly line at Hasbro’s Massachusetts factory, she felt pain in her right shoulder while “flattening bags of game chips to put into boxes. . . .” She received treatment from the company nurse and physician. In 2008, she underwent neck surgery, and in 2010, surgery on her right shoulder. Hasbro had laid her off in 2008  “due to her work restrictions from her industrial injury in 2005.” Hasbro accepted her claim and began paying her weekly benefits.

Hasbro Moves to Discontinue Benefits

On June 23, 2011, Hasbro filed a complaint to discontinue or modify the employee’s benefits. The employee moved to join her claim for § 34A benefits, which was allowed. In a conference order dated February 16, 2012, the judge denied Hasbro’s complaint but did not address the employee’s claim. Both parties appealed, but Hasbro withdrew its appeal, leaving only the employee’s § 34A claim to be adjudicated at hearing.

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Virtually all Massachusetts employees are eligible for workers’ compensation insurance coverage, even if they work for a temporary agency or are undocumented immigrants. Their survivors are eligible for workers’ compensation benefits if the worker dies in a job-related accident.

 Worker Killed While Cleaning Machinery

A sanitation supervisor at the New Bedford, Massachusetts plant of Sea Watch International died in January 2014 when his clothing became ensnared in the rotating shaft of a clam-shucking machine’s engine while he was cleaning the device. Victor Gerena, 35, died, leaving five children without a father. Gerena had worked at the plant for 18 years. Gerena worked for Sea Watch through a temporary employment agency, Workforce Unlimited. In June 2014, both companies were cited by the federal Occupational Safety and Health Administration (OSHA) and fined a total of $44,410 for their violations. An OSHA spokesman emphasized that the fines reflected the seriousness of the safety lapses, not the value of Victor Gerena’s life. The children may receive Social Security benefits and may also receive workers’ compensation benefits, since all employers in Massachusetts must insure their workers, with very few exceptions. This requirement also applies to an “employee leasing company” like Workforce, which supplies employees by contract to other companies.

Citations For Safety Violations

The violations against Sea Watch were for the plant’s failure to implement safety protocols to protect workers while they cleaned potentially dangerous machinery. The violations included failure to provide a lockout device, incomplete lockout/tagout procedures, not conducting periodic inspections of these procedures to ensure that all requirements were being met, and failure to train all affected sanitation employees in lockout/tagout procedures. In the opinion of OSHA investigators, if Sea Watch had followed those safety protocols, Victor Gerena would not have been killed. Sea Watch’s plant on Antonio Costa Avenue in New Bedford was cited by OSHA for seven violations, and the company was fined $35,410.

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Central Transport’s Billerica, Massachusetts Shipping Terminal Cited For Hazards

The federal Occupational Safety and Health Administration (OSHA) cited Central Transport LLC for safety hazards at its freight shipping terminal in Billerica, Massachusetts. OSHA investigators found conditions at the terminal that could lead to Central Transport employees’ being electrocuted, crushed, or injured due to falls. Central Transport had neglected measures it should have taken to protect its workers’ safety. OSHA fined the company a total of $330,800:  $242,000 for willful violations, $44,000 for repeat violations, and $44,800 for serious violations.

Company Is Repeat Offender

Particularly egregious, according to OSHA, was the company’s being a repeat offender. It was previously advised of safety hazards but took no measures to remedy them. The most recent safety violations were basically the same ones it was previously given the opportunity to correct at its facilities in Illinois and Mississippi, but it chose not to. These were not minor technical offenses but serious lapses, creating a risk for employees of disability and death. According to OSHA officials, Central Transport has used up its options and must take steps to ensure that its employees have a safe workplace, regardless of location. OSHA is not willing to stand by and permit the company to continue its past practice of failing its employees by neglecting their health and safety.

$242,000 In Fines For Willful Safety Violations

In Central Transport’s Billerica shipping terminal, an electrocution hazard was created when the building’s roof leaked water and created pools on the floor, the location of electrified cabinets and chargers for forklift batteries. Employees who stood in water could be shocked if they plugged in battery chargers. They could also fall and be injured when driving forklifts, due to the slick surfaces in the part of the  terminal where the roof was leaking. The forklifts themselves were defective, since they were not repaired when they developed mechanical problems but were just driven until they stopped working entirely. Workers could be struck or crushed by the unreliable forklifts. OSHA cited Central Transport for four willful safety violations, carrying $242,000 in fines. For a violation to be characterized as willful, the employer must have demonstrated intent, knowledge, and that it acted voluntarily in ignoring the law’s requirements, or showed indifference to worker safety and health. Continue Reading ›

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Employee Suffers Back Injury At Work

Mr. Carlos Araujo, age 58 at the hearing, was educated through the sixth grade in Uruguay. He speaks limited English and testified with the assistance of a Spanish interpreter. His work history consists of heavy labor. On his injury date, he was working as a construction laborer for United Walls Systems, LLC. His average weekly wage was $896.67. Mr. Araujo testified that on November 17, 2010, he was attempting to lift a manhole cover with a co-worker.  While lifting, he felt the onset of low back and right leg pain.

Physician Finds Employee Permanently Partially Disabled Due to Work Injury

Mr. Araujo was examined by Dr. Marc Linson pursuant to § 11A. In his May 16, 2012 report, Dr. Linson opined that Mr. Araujo had injured his back in the course of his employment on November 17, 2010 and that this injury had aggravated pre-existing lumbar degeneration and borderline stenosis at the L4-5 level. The pre-existing back condition had not been causing symptoms prior to the work injury. Dr. Linson found Mr. Araujo to be in severe and ongoing pain a year and a half after the injury. In Dr. Linson’s opinion, Mr. Araujo was permanently partially disabled with the injury of November 2010 being a major causal factor. The doctor found Mr. Araujo could do light work full-time but would not ever be able to resume his former heavy paving work. The judge adopted Dr. Linson’s opinions respecting causal relationship, diagnoses, and the nature and extent of Mr. Araujo’s disability subsequent to November 17, 2010, and that day he suffered an industrial injury.

Judge Uses Video Evidence to Discontinue Workers’ Compensation

Video evidence of Mr. Araujo’s activities was also admitted at the May 22, 2013 hearing. The video is less than 13 minutes long and purports to capture Mr. Araujo’s activities over approximately 52 minutes on December 10, 2012. He is seen driving women to a store. He remains outside, where he stands and occasionally walks. He drives the women back to a residence with their purchases. He then makes one trip from the vehicle while carrying several small white shopping bags into the residence. There is no reliable way of knowing how much weight he is carrying, and there was no testimony concerning this issue. The judge did not avail himself of the option of forwarding the video evidence to Dr. Linson to inquire if the actions of Mr. Araujo in the video would have altered the doctor’s opinions. See General Laws c. 152, § 11. The hearing judge noted he specifically relied upon the video of the employee’s activities as depicted on December 10, 2012, to terminate Mr. Araujo’s entitlement to § 35 benefits as of that date.

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Employee Signs Employment Contract Under Indiana Law

An employer may present a prospective employee with a contract that includes a forum selection clause. This requires the employment relationship to be governed by the law of a different state than the state where the employee is hired or expects to work. However, that contract may not, under Massachusetts law, deprive the employee of the workers’ compensation benefits available in Massachusetts, if the employee is otherwise eligible.

Mark Mendes applied for a job with Franklin Logistics, Inc., an Indiana-based trucking company, and before he was hired he agreed to sign an employment agreement, stating that any claims he might later bring for occupational injury or illness from his work for Franklin Logistics would be governed by the laws of Indiana.

Employee is Injured

On January 18, 2010, while working for Franklin Logistics in Maine, Mr. Mendes sustained an injury to his lower back. Due to the pain, he declined the dispatcher’s directive to seek treatment in Pennsylvania and instead traveled to St. Luke’s Hospital in New Bedford, Massachusetts. At the time of the proceedings before the Reviewing Board, Mr. Mendes had not returned to work.

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Massachusetts Regulations on Zohydro Prescribing

A physician treating an injured worker suffering from severe chronic pain may prescribe one prescription drug after another, including potent opioids, in search of relief for the patient. The use of opioid painkillers can lead to overdose, addiction, accidents, permanent disability, and even death. Governor Deval Patrick, responding to Massachusetts’ heroin and opioid addiction epidemic, which claimed 140 lives in the first months of 2014, banned the opioid ZohydroTM ER. His action was nullified by U.S. District Judge Rya Zobel, who granted manufacturer Zogenix’s request for an injunction halting the ban.

Massachusetts and Vermont in April 2014 both implemented statewide regulations that require health care providers to justify the medical indication before prescribing Zohydro, after screening patients for risk of abuse. These regulations were criticized by Dr. Margaret A. Hamburg, Commissioner of the Food and Drug Administration (FDA), who, although she acknowledged the states’ role in preventing a facilitator of opioid abuse — physicians’ inappropriate prescribing practices — cautioned that legislators and regulators should not focus on one drug, Zohydro, alone. Commissioner Hamburg argued for comprehensive policy solutions. She defended the FDA’s decision in October 2013 to approve Zohydro for doctors to prescribe for their patients who are experiencing severe pain, requiring 24-hour chronic treatment, and for whom Zohydro may be their last resort after trying other treatments that have proved inadequate.

Risks and Benefits of Zohydro in Pain Management

Dr. Hamburg characterizes Zohydro as providing more benefits and fewer risks for people who must cope with severe chronic pain and need relief to have any hope for an acceptable quality of life. For example, acetaminophen, a potent liver toxin, is found in such painkillers as Vicodin, but not in Zohydro. Such long-acting opioids as Oxycontin and extended-release morphine have about the same potency as Zohydro. Zohydro is also subject to stringent Drug Enforcement Administration prescribing restrictions imposed on all Schedule II drugs, such as patients being required to have a written prescription from their doctor, rather than one phoned in to the pharmacy, and not being permitted to refill the prescriptions. Dr. Hamburg contends that the FDA’s approval of Zohydro therefore does not significantly change overall opioid prescribing by physicians and use by patients suffering from severe chronic pain, since the most likely candidates to receive Zohydro will already be receiving opioids, such as potent painkillers like hydrocodone products or other long-acting opioids.

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DOL Sues Crown Furniture for Firing Employee who Filed OSHA Complaint

The US Department of Labor has sued Crown Furniture, a West Springfield, Massachusetts company, and its owner, Donald Pottern, after Pottern allegedly fired a worker who had filed a complaint with OSHA over workplace safety violations. The Occupational Safety and Health Act is the basis for the agency’s authority to file suit on behalf of an employee against an employer that has retaliated for complaining to the agency about workplace safety violations.

The complaint was filed with the US District Court for the District of Massachusetts in Springfield, and it states that the employee contacted OSHA on May 9, 2011, alleging that Crown Furniture was committing health and safety violations by permitting the accumulation of asbestos, mold, and rodents in the basement of its Springfield facility. Two days later, Pottern questioned the employee about the reasons for his filing the complaint, after which he fired him. The fired employee submitted a whistleblower complaint with OSHA. After an investigation, OSHA found the employee’s complaint to be meritorious.

The DOL lawsuit asks the District Court to enter a judgment confirming that Pottern’s firing the employee was an act of retaliation against him for filing an OSHA complaint. The suit also seeks an injunction preventing Pottern from pursuing any such retaliation in the future against an employee for complaining of safety violations. The DOL also asks the court to enter judgment in favor of the employee for more than $20,000 in lost wages, with interest, and for compensatory and punitive damages. Additional affirmative relief would include a requirement that the employer post a nondiscrimination notice at the workplace.

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Firefighters Die Trapped in Burning Building

A fire on March 26, 2014 near D & J Ironworks in Malden caused the deaths of two Boston firefighters, Michael R. Kennedy, 33, and Lieutenant Edward J. Walsh, Jr., 43. The firefighters died trapped in the basement of 298 Beacon St. They had been called to respond to what appeared to be a small residential fire, which high winds quickly turned into an inferno. Welding sparks had flown from D & J Ironworks onto wood siding at a building nearby. Conditions became so hot and dangerous that their fellow firefighters were unable to enter the burning building and get them out to safety. Their co-workers could only hear Kennedy and Walsh on the fire fighters’ radio saying they had no water, it was getting hot, and pleading to be rescued, but they could not enter to help them, and the two men died. Fire department observers believe the fire’s heat was so intense that the firefighters’ hoses burned through, leaving them with no water to fight the fire that engulfed them.

D&J Ironworks Fined for Violations That OSHA Says Caused Fire

For the violations that led to the fire, the US Occupational Safety and Health Administration fined the company $58,000, although the company disputed OSHA’s findings. OSHA decided to investigate after learning that employees at the job site played a role in the fire. D & J was issued a number of fines between $5,000 and $7,000 for each violation.

On Sept. 12, 2014, OSHA issued its findings that D & J committed 10 violations of federal occupational safety standards, resulting  in the deaths of the firefighters, including that it had:

■ Failed to provide any training to its employees, in either general safety or fire safety;

■ Provided no fire protection and prevention program, and this led directly to the fire;

■ Failed to move the railing the workers were cutting and welding to a fire-safe location; and

■ Failed to have someone at the location assigned as a fire watcher, capable of preventing and putting out fires.

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