Boston Workers Compensation Attorney Blog

Recently, a case came before the Massachusetts Reviewing Board of Industrial Accidents that addressed a judge’s reliance upon evidence to modify a workers’ compensation order.  The rule is that a modification of workers’ compensation benefits must be based on evidence that demonstrates the employee’s medical or vocational status changed. The Board in this case reviewed the timing of medical examinations and the employee’s allegations that the judge had relied on medical opinions and findings that did not support a change in the employee’s benefits award.

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The Massachusetts Reviewing Board recently assessed the issue of causation in a workers’ compensation case, alleging that psychological injuries rendered an employee disabled.  The Board stated that psychological harm resulting from injuries suffered in an industrial incident requires proof that those injuries were in fact caused by a work-related incident.  In this case, the judge had made inconsistent findings of fact, and relying on these, his finding that the employee’s two surgeries and status as totally disabled were caused by an industrial incident was arbitrary and capricious.

In this case, an employee had been awarded ongoing weekly section 34 benefits, as well as sections 13 and 30 medical benefits.  The employee had a Master’s degree in Science and Administrative Studies, and she worked as vice president of marketing for her employer.  This position required that she maintain attention to detail and strong communication skills.

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Employees who are injured at work may be entitled to compensation. Under Massachusetts law, with limited exceptions, employers in the Commonwealth with one or more employees must have a valid workers’ compensation policy.  Benefits include medical care and partial wage replacement, and they also protect the employer from potentially harmful lawsuits.

The United States Department of Labor and the Occupational Safety and Health Administration (“OSHA”) protect the rights of workers throughout the United States.  Recently, a Boston fish and seafood wholesaler was cited by OSHA and issued proposed fines for failing to follow industry and OSHA standards.  One employee was fatally overcome by an ammonia leak in March 2015, which was caused by a burst pipe in the machine shop. OSHA noted that the seafood wholesaler failed to abide by both industry and OSHA safety standards.

OSHA inspected the site and discovered that the machine shop’s deficient design and lack of proper operation and maintenance for the ammonia refrigeration system exposed the fatally injured employee as well as other employees to a “catastrophic” release of ammonia.  The company was cited for 20 serious violations of workplace safety and health standards.

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In a recent opinion by the Supreme Judicial Court, the central issue was whether the Massachusetts Insurers Insolvency Fund (Fund) could recover for costs paid on behalf of a high-net-worth insured employer. The court found in favor of the Fund, noting policy considerations as well as the notion that the benefits had been paid “on behalf of” the Bank.  In their analysis, the court looked at the relationship created between the Fund and the employer, stating that the insurer acts under a contract to satisfy the legal obligation of the employer.

The facts of this case indicated that a bank employee suffered injuries while lifting coin-filled bags.  She sought and received workers’ compensation benefits, first under section 34 for temporary total incapacity benefits and then section 35 benefits for partial incapacity.  After her entitlement to section 35 benefits was exhausted, she sought permanent and total disability compensation.  The Fund agreed to pay her future medical costs from the injury, as well as a lump sum payment of $85,000.  They then sought to recoup payments from the Bank.

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The Massachusetts Reviewing Board of Industrial Incidents recently addressed whether issues concerning workers’ compensation coverage and a bond to pay benefits could be settled without the involvement of the workers’ compensation claimant or the Department of Industrial Accidents. The Board held such an agreement was contrary to the statute’s requirements concerning maintaining reinsurance.

The employee in this case suffered from asbestosis, which he contracted while working for Polaroid Camera, beginning in 1959.  In 1989, the asbestosis rendered him unable to work, and he was awarded benefits from that point and continuing. Those benefits were paid by the self-insurer and then exhausted.  After that, section 34A benefits were paid, and in 1998, the employee passed away as a result of his injury. His widow then received section 31 survivor benefits.

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In a recent decision, the Massachusetts Department of Industrial Accidents, Reviewing Board, affirmed a decision in favor of an injured employee who suffered an ongoing aggravation of an underlying shoulder condition. The issue in this case was whether the judge had transformed the employee’s injury claim into one of a repetitive, ongoing aggravation of a condition, when it should have remained an allegation of a single work injury. Additionally, the insurer claimed the successive insurer rule applied, and they were not liable.

The employee in this case was a 54-year-old man who worked for G.P.C. International/Chartpak, Inc. since 1996 as a paper processor and machine operator. The work was fast-paced and required heavy lifting of 75 to over 100 pounds.

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The Massachusetts Supreme Judicial Court recently rendered a decision that affects settlements for injured workers seeking compensation for their injuries.  In DiCarlo v. Suffolk Construction Co., Inc., which included a review of two lower court rulings, the court held a workers’ compensation insurer’s lien does not provide for the reimbursement of non-economic damages recovered as part of a third-party settlement.  This ruling is important because it provides courts with more room to approve reasonable settlements of work-related accident claims involving third parties.

Massachusetts law holds that employees who are injured in the course and scope of their employment and receive workers’ compensation benefits cannot bring a tort lawsuit against their employer for these work-related injuries.  While the advantage of the workers’ compensation scheme lies in the employee not necessarily proving negligence in order to recover benefits, the limitation is that they typically do not recover non-economic damages. Instead, workers’ compensation benefits include lost wages and medical expenses (past and future treatment). Compensation for pain and suffering, which are considered non-economic damages, are not paid by workers’ compensation insurance companies to injured employees.

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A recent appeal before the Massachusetts Department of Industrial Accidents Reviewing Board addressed whether an employee seeking benefits from her employer for work-related injuries was entitled to receive continuing benefits.  In this case, the judge had found that the employee’s ongoing disability was no longer related to her work-related injury, and her benefits were issued in a closed period. The procedural history is complex in this case, but ultimately the Board relied on the policy rationale of ensuring that an employee receives benefits for work-related injuries, as provided by Massachusetts law.

In a previous decision, the judge had awarded section 34 benefits from the date of the work-related injury, July 11, 2011, to July 6, 2012. This was the date that an impartial medical examiner’s report concluded the employee’s work injury was not related to the ongoing partial disability and incapacity she suffered, about one year later.  The employee then appealed this decision on the ground that the judge had denied her motion for a finding of inadequacy regarding this medical report. The Board agreed, stating that the report was confusing and inconsistent.

Then, the judge made findings based on medical opinions in a record that had not been admitted in evidence. The Board vacated the judge’s findings that the employee was partially disabled but that it was not related to her work injury of July 11, 2011. On committing the case, the Board focused on the consideration of additional medical evidence and findings related to benefits the employee would receive after the July 6, 2012 date. They stated this was because her first appeal challenged the part of the decision that terminated her benefits at that date.

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In a recent decision, the Massachusetts Department of Industrial Accidents, Reviewing Board, affirmed an award of workers’ compensation benefits on behalf of an injured employee who sought total incapacity benefits, meaning that she was unable to work as a result of her injury and requested compensation based on her average weekly wage.  The issue in this case was whether the employee’s work-related injuries were caused by an industrial accident or were a result of prior medical conditions.  According to the employer’s workers’ compensation insurer, the work-related incident did not cause her disability or need for treatment. Ultimately, the Board held the employee’s burden of proof had been met, since her prior medical conditions were in fact work-related and combined with an industrial accident, entitling her to benefits.

From 1972 to 2011, Cheryl Briere worked a certified nurse’s assistant.  Over this period of time, she suffered injuries, some of which were work-related.  Ms. Briere hurt her back in 1994 while lifting a 350-pound man into a car.  She received workers’ compensation benefits as a result of this injury. Four years later, Ms. Briere was injured in a vehicle collision but was not absent from work as a result. Beginning in 1991, Ms. Briere worked for Lowell General Hospital.  She suffered multiple injuries, some of which she reported, and most involved injuries to her back and hips. Unfortunately, in 2004, Ms. Briere was treated for injuries resulting from another vehicle accident. She underwent hip and back pain treatment in 2005 and back and neck pain in 2008.

On the date of the incident at issue, December 4, 2011, Ms. Briere had assisted her co-workers in moving a 400-pound patient. She suffered injuries to her neck, back, and hands. She completed her shift that day and returned on the following day. Two days later, Ms. Briere sought a leave of absence. She contended that the injury she suffered from lifting the patient made it impossible to successfully perform her job.  She did not return to her employment at Lowell General Hospital.

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