Massachusetts Workers’ Compensation Lawyer Blog

Workers’ Compensation Benefits Only Available for Emotional Injury Due to Personnel Actions if in Bad Faith

Under Massachusetts workers’ compensation law at Mass. G.L. ch. 152, § 1 (7A), an employee is not eligible for an award of benefits for  a psychological and emotional injury that results from a bona fide (good faith) personnel action. But the employee would be eligible for benefits if a personnel action, such as a transfer, a promotion, a demotion, or a termination, is an intentional infliction of emotional harm, which, under the law, is not in good faith. To justify an award of benefits, the action must also be the predominant cause of the employee’s inability to work.

Hearing Judge Finds Employer Actions in Bad Faith

A dialysis nurse employed by Fresenius Medical Care Holdings, Inc. had been previously diagnosed with post-traumatic stress disorder (PTSD) from a brutal childhood, but her mental state was stable at the time of the incidents leading to her workers’ compensation claim. The hearing judge had awarded § 34 benefits and medical benefits to the employee. The judge had found that some of the work events that the nurse claimed led to her being disabled due to worsening of her PTSD could be construed as personnel actions, but that they were not in good faith and the exclusion from recovery for emotional injuries under § 1(7A)[1] did not apply.

Findings on Appeal

The insurer, American Casualty of Reading, Pa., appealed, denying that the actions that formed the basis of the employee’s injury were in bad faith, but claiming that they were “bona fide personnel actions” under current law and not intentional inflictions of emotional harm, as would be required under §1(7A) and § 29] for the employee to be eligible to receive benefits.

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A Massachusetts company has put its workers in danger due to unsafe work practices involving the risk of electrocution and other injuries from power lines and possible injury or suffocation due to collapsed trench excavations, according to the federal Occupational Safety and Health Administration (OSHA).

P. Gioioso & Sons, Inc. is a Hyde Park contractor that has multiple contracts with government and private customers. OSHA inspectors determined that the company’s employees were at risk of electrocution while working near live power lines at a Cambridge work site, due to their employer’s not using mandated safety measures.The OSHA inspection in May 2014 revealed that employees were moving excavating equipment onto a work site by moving it under live power lines. The employees used a long fiberglass pole that had a metal tip to lift the overhead lines, a potentially dangerous practice. As a result, the Hyde Park contractor was cited for safety violations and faces $70,290 in proposed fines.

The OSHA inspector found that, although no one was injured or killed this time, there was still substantial danger and a risk of burns or electrocution. The inspector also concluded that the employer knew that the overhead lines were energized and therefore hazardous.

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An article in the American Journal of Industrial Medicine 55:487-505 (2012) raises the question of why so many workers suffering from occupational illnesses and injuries receive no workers’ compensation benefits. The researchers, a law professor from Northeastern Law School in Boston, Massachusetts and a Labor and Management Studies professor from Rutgers University in New Jersey, found many obstacles standing in the way, the worst being increasingly restrictive rules in many states’ workers’ compensation programs.

A construction worker who falls at a job site and breaks his arm may obtain benefits easily. On the other hand, an employee with a legitimate work-related condition, but one that doesn’t show much “objective medical evidence,” may encounter obstacles. The path to benefits may be even rougher for the employee who develops cancer decades after the work exposure to cancer-causing chemicals, or the employee whose disability is due to stress from his job.

The authors analyzed a number of databases:

• Occupational Safety and Health Administration (OSHA) logs, consisting of employee reports of work-related injuries and diseases;
• Bureau of Labor Statistics (BLS) data; and
• The National Health Interview Survey (NHIS), a study conducted annually by the National Center for Health Statistics.

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A successful plaintiff in a lawsuit for personal injury due to an intentional or negligent act by another may be awarded damages by a judge or jury for emotional distress, in addition to compensation for physical injuries and lost wages. A Massachusetts court recently confirmed that compensation for emotional distress is also available through the workers’ compensation system to an employee suffering from work-related stress.

The Appeals Court of Massachusetts in February 2014 ruled in favor of an employee who sued his employer for intentional infliction of emotional distress. The court found that the proper remedy for the employee is workers’ compensation. (The case is Jason Nicholls vs. Boston Transportation Department & Another, 13-P-293, 85 Mass. App. Ct. 1102; 3 N.E.3d 1119; 2014 Mass. App. Unpub., February 27, 2014.)

The plaintiff in this case was a parking control officer, a stressful job in itself, but to add to his stress, he had an allegedly abusive supervisor. The plaintiff worked for the Boston Transportation Department (BTD), patrolling the streets of Boston, ticketing and towing motor vehicles.  Angry car owners sometimes reacted to his ticketing or towing their vehicles by subjecting him to verbal, emotional, and even physical abuse. One outraged motorist slammed him against a utility pole.

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The Massachusetts Legislature legalized medical marijuana in the Commonwealth by enacting the Humanitarian Medical Use of Marijuana Act of 2012. Massachusetts become one of 22 other states (Alaska, Arizona, California, Colorado, Connecticut, Delaware, Hawaii, Illinois, Maine, Maryland, Michigan, Minnesota, Montana, Nevada, New Hampshire, New Jersey, New Mexico, New York, Oregon, Rhode Island, Vermont, and Washington) and the District of Columbia to allow health care providers to recommend medical marijuana for their patients, and to allow patients to obtain this product from dispensaries licensed and regulated by the state.

Many physicians see medical marijuana as a desirable option for their patients with severe pain, offering pain relief as effective as opiates with less danger of overdose or addiction. The response from employers and insurance companies is less favorable. Workers’ compensation insurers throughout the United States are viewing with alarm the increasing number of states legalizing medical marijuana. Many organizations are advising employers and insurers to decline to pay for or reimburse employees for the cost of medical marijuana, even when it is recommended by a health care provider for relief of severe pain from a work-related injury.

The primary justification for this refusal is federal law. Under 21 U.S.C. §§ 812, 822, 823(f), the federal Controlled Substances Act (CSA), marijuana is classified as a Schedule I controlled substance, illegal to use or possess except in federally approved research, but not medical use. However, the United States Justice Department has stated that medical use of marijuana is not one of the areas where it prioritizes enforcement, instead deferring to state and local laws. Continue Reading ›

An Administrative Law Judge (ALJ) who hears and decides a claim for workers’ compensation benefits must consider a detailed technical record before rendering a decision. Sometimes a crucial piece of information is overlooked or ignored in the course of the judge’s decision-making process. When this happens, and the claim for benefits is denied, the claimant’s attorney brings the omission to the court’s attention through the review process.

In a case decided on appeal in May 2014, the Reviewing Board found that the ALJ’s findings omitted a significant diagnosis made by an examining physician. The omission was significant enough that the Reviewing Board at Board Nos. 019900-92 and 064092-92 sent the case back to the ALJ for a new hearing and decision.

At the time of the two injuries for which the employee first submitted a claim, in 1992, he was working as a Cable and Conduit Installer. He slipped and fell while working inside a manhole, injuring his left leg, hip, and low back. Following that injury, he was out of work for approximately six weeks and was paid workers’ compensation benefits.

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An employee can be injured on the job, and the injury may aggravate a pre-existing physical condition. This is called a combination injury.

The combination of physical problems may make it difficult or impossible for an employee to work. However, even when there may be no question that the new work injury made the old problem worse, the employee can still only receive benefits for the new injury that is directly related to work.

This is mandated by the Workers’ Compensation laws at Mass. G.L. ch 152 section 7 (A). This portion of the law provides that if an injury or disease that is eligible for compensation combines with a non-work-related injury or disease, even if the combination makes the work-related problem worse, the employee may only be compensated to the extent that the new problem is the major cause of the employee’s inability to work.

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An Administrative Law Judge (ALJ) in Massachusetts, in deciding whether an injured employee should receive workers’ compensation benefits, must consider and use evidence correctly in making a decision, or the decision could be thrown out by the Reviewing Board.

A hospital employee who was injured on the job at Brigham and Women’s Hospital applied for benefits. The ALJ denied benefits on the basis that the employee’s ongoing partial disability was not caused by her work injury. The ALJ adopted in part the opinions of three physicians, interpreting their opinions to conclude that the employee was totally disabled for a period of time, continued to be partially disabled, but the partial disability was not related to her work injury.

On appeal, in a decision issued in May 2014, in the case of Mae Roscoe v Brigham and Women’s Hospital et al., Board No. 017001-11, the Reviewing Board found the ALJ had made a number of mistakes with regard to the evidence in the case and therefore overturned the ALJ’s decision.

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An administrative law judge (ALJ) at a benefits hearing has the sole authority and responsibility to determine the claimant’s credibility. He or she hears the evidence, including the testimony and cross-examination of witnesses, and makes an impartial decision based on what is presented in court. 

Ordinarily, a Reviewing Board will not disturb the credibility determinations of the hearing judge.

However, if the judge, without notice to the parties, pursues an independent investigation of the employee’s past history of workers’ compensation claims, and then relies on that history to question the employee’s claim, the Reviewing Board has the discretion to step in, overturn the ALJ’s decision, and refer the employee’s claim for reassignment and a new hearing before a different judge.

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