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Boxes of EvidenceThe Massachusetts workers’ compensation system is designed to ensure that injured workers receive the support and compensation that they deserve for their injuries, lost wages, and medical bills. Although workers’ compensation insurers are meant to assist injured workers with adjudicating their claims in a timely fashion, they often do not act in the injured workers’ best interests and attempt to deny or terminate payment of benefits prematurely. As seasoned Boston workers’ compensation lawyers, we can help you ensure that you receive the fair treatment that you deserve. A recent workers’ compensation appellate opinion illustrates some of the issues that insurers raise on appeal in an attempt to avoid paying benefits.

In the case, the insurer appealed from a decision declining its motion to discontinue, modify, or recoup benefits that were paid to one of its employees who suffered injuries while at work. In March 2014, the employee suffered an injury to her neck and head in a motor vehicle accident that occurred during work. The insurer did not contest liability for the neck and head injuries, but the employee’s request for payment of medical expenses and treatment was denied. The worker filed a claim to recover compensation for these expenses. The insurer requested a modification of the temporary total incapacity benefits that the employee had been awarded, which the judge denied. The judge also required the employer to pay for the employee’s claimed medical expenses. The insurer appealed, and the judge once again issued an order refusing to modify the employee’s award of temporary total incapacity benefits.

The insurer asserted four grounds for reversal in its appeal. First, it alleged that the judge misstated expert medical opinions in reaching the decision to deny the modification. Second, it alleged that the judge substituted his own opinion for the opinion of the impartial medical examiner in an impermissible fashion. Third, it alleged that the court did not appropriately consider the impartial medical examiner’s opinion in reaching its decision. Finally, the insurer alleged that the court failed to identify sufficient evidentiary findings regarding the worker’s prior employment.

Doctor Taking NotesThe workers’ compensation claims process can be daunting, especially if you are dealing with painful injuries and serious disruptions to your life. Once you are awarded benefits and compensation for medical expenses, there is no guarantee that this award will remain unchanged. Employers can request modifications or terminations of benefits after the original award. There are many procedural rules involved with this review process, and many of them involve the type of evidence that a judge must consider when deciding whether to modify or terminate a benefits award. As dedicated Boston workers’ compensation lawyers, we have assisted many injured employees with protecting their right to compensation, and we are ready to assist you.

A recent appellate opinion discusses a situation in which an employee challenged a court’s decision to deny benefit payments. The injured employee was working as a cook and general laborer at the time that he was injured. The employee reported slipping and falling off a ladder while he was cleaning an ice machine. Although the employee attempted to return to work after receiving medical treatment, he was sent home because he was unable to perform his job duties.

The employer’s workers’ compensation insurer paid temporary total incapacity benefits and later filed a complaint, asking the court to discontinue or modify the benefit payments. The judge effectively granted the request, and the employee appealed. As part of the appeal, the employee underwent an impartial medical examination. During a hearing regarding the appeal, the employee filed a number of motions, including one seeking to strike one of the impartial medical examiner’s reports. The court denied this motion. The parties also submitted a joint exhibit containing additional medical records.

Restaurant Kitchen

Different governmental regulatory agencies have jurisdiction when it comes to certain Massachusetts workers’ compensation issues. The Department of Industrial Accidents is a state-level agency that helps administer and determine rights, responsibilities, and benefits for injured workers. The federal sentence handed down to a Boston restaurateur shows the overlapping jurisdiction of various agencies when it comes to fraud schemes, including workers’ compensation fraud.

The defendant’s jail sentence was a result of a multi-agency investigation, which included U.S. Immigration and Customs Enforcement (ICE), Homeland Security Investigations (HSI), the Internal Revenue Service (IRS), and the Massachusetts Insurance Fraud Bureau (IFB).

The IFB is a Massachusetts agency that investigates potentially fraudulent insurance actions, including those involving workers’ compensation insurance coverage. As a governmental body charged with investigating insurance fraud, it refers certain cases for criminal prosecution. Although the investigative division was likely the most closely involved in this case, it also maintains administrative, legal, and analytic divisions. Citizens are free to report or refer potentially fraudulent activity to the IFB, which will often work with insurance companies’ special investigation units in the course of its investigation.

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Accounting FiguresOne of the realities of workers’ compensation claims is that the insurer is required to issue payments for the injured employee’s average weekly wage. Sometimes this is an easy calculation when an employee has worked for the same company for a number of years, and good records are kept of the tax forms issued to the employee. Other times, when an employee is issued paychecks on an intermittent basis or when an employee works for only a short time, it can be difficult to establish the average weekly wage. At least, it opens up the possibility of disputes between insurers and employees on what that amount should be. In a recent workers’ compensation case, the DIA, the administrative body responsible for Massachusetts workers’ compensation disputes, analyzed the appropriate average weekly wage for a workers’ compensation claimant.

The employee worked as a carpenter and was injured at work while moving a large piece of machinery. There was never any dispute that the employee was covered under his employer’s workers’ compensation policy. The primary issue under consideration was the employee’s average weekly wage.

The insurer began paying the employee weekly benefits based on an estimated average weekly wage of $800. The employee, however, contested these payments, arguing that the estimated average weekly wage was approximately $1,500. In support of this figure, the employee submitted 35 weeks of paychecks and a 2011 IRS Form 1099, issued by his employer. The conference order granted the employee an average weekly wage of $1,490.33. The judge’s hearing decision raised that figure to $1,726.37, even though the employee did not appeal the conference order. The insurer appealed, arguing that the ALJ could not raise the employee’s average weekly wage on its motion.

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BriefcaseIt has become increasingly common for workers, especially those in the millennial generation, to work within the so-called “gig economy.” Companies like Uber, Instacart, and Favor allow individuals to work as independent contractors to perform a variety of services. Uber, the ride-share platform, recently introduced a pilot program for Massachusetts workers’ compensation benefits. The company, along with private insurance companies, allows its drivers, who are generally independent contractors, to purchase coverage that offers $1 million maximum coverage for medical costs and weekly earnings due to a work-related accident, and there is no deductible or co-pay.

Employers are mandated, with certain exceptions, to maintain in effect a workers’ compensation policy at all times, under Massachusetts law. The policy reasoning behind this requirement is so that injured workers receive medical benefits as well as some wages, and the employer is shielded against potentially expensive personal injury lawsuits. There are exceptions to this rule, however, and the number of workers within this exception is growing. Massachusetts law does not require that employers maintain workers’ compensation insurance coverage for independent contractors, as opposed to employees. Although there is frequent litigation over whether an employer is correctly classifying its workers as independent contractors, gig economy workers are often treated as independent contractors.

This initiative available to Boston Uber drivers is privately developed, but both the federal government and state lawmakers are introducing legislation that might provide workers in the gig economy with workers’ compensation benefits that are connected to the worker as opposed to the employer. For instance, a U.S. Senator introduced legislation earlier this year that would create a $20 million fund for portable insurance-like benefits. The proposal would be funded by the Department of Labor, but like the Uber project, it would likely be launched as a pilot program and issue grants to state governments, unions, and non-profits.

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Massachusetts workers’ compensation laws are largely statutory creations, and therefore, sometimes Massachusetts courts are asked to interpret statutory meanings. The Supreme Judicial Court recently decided a case that required the interpretation of the meaning of “compensation” under General Laws Chapter 268A, Section 1(a). The court’s ruling allows suspended employees to continue receiving payments under Massachusetts workers’ compensation laws.


The plaintiff was employed by the city of Boston as a paramedic. In 2011, he injured his right ankle while transferring a patient into an ambulance. The resulting injury required the defendant to pay workers’ compensation benefits to the plaintiff. However, the defendant terminated the payments after learning that the plaintiff was facing several criminal charges involving drugs at work. The city of Boston suspended the plaintiff’s employment in accordance with the State’s suspension statute.

The Department of Industrial Accidents reviewed the plaintiff’s workers’ compensation claim in an administrative hearing and ruled in the plaintiff’s favor. The DIA ordered the city of Boston to continue making payments to the plaintiff. The defendant refused, and the plaintiff filed a lawsuit for enforcement of the order against the city of Boston. The Superior Court dismissed the lawsuit because, in the court’s view, the suspension statute prohibited the payment of  “compensation” under General Laws Chapter 268A, Section 25, and the court viewed workers’ compensation benefits as “compensation.” After the plaintiff appealed, the Supreme Judicial Court transferred the case from the appeals court on its own motion.

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When employees are injured in the course and scope of employment, they are entitled to benefits according to Massachusetts workers’ compensation laws. There is no requirement that they prove fault for their injury or medical condition caused at work. The one caveat is that a Boston workers’ compensation claimant must be considered an “employee” at the time of their injury, or at the time they suffered their medical symptoms.

According to Massachusetts law, an employee is a person under express or implied contract of hire. Employees are hired by contract to perform services for their employer.  The significance of this definition is that when injured workers are deemed employees, they are entitled to benefits and payments provided by state workers’ compensation laws.  In comparison, independent contractors are not eligible for workers’ compensation benefits. There are other exceptions to the definition of employee under Massachusetts law, including seamen engaged in interstate commerce and other individuals.

The Office of Labor and Workforce Development makes clear determining the status of a worker is fact-driven and to be determined by the administrative judge assessing a claim for benefits.  While Massachusetts presumes that workers are employees, when an employer chooses to hire an independent contractor, there are steps they can take that help to make this distinction clear, such as allowing the contractor to control their work and perform work outside the usual course of the employer’s business.

After being alarmed by the incidence of overdoses and deaths among people in the Massachusetts workers’ compensation system, an administrative judge for the Massachusetts Division of Industrial Accidents, Omar Hernandez, wanted to begin a program to help injured workers receiving treatment with opioids.  According to a news article, Boston workers who suffer injuries in the course and scope of employment, and have settled claims for benefits, may receive information on alternative treatments for their pain.  The program, which is voluntary, aims to reduce the use of opioids and other narcotics by working with care coordinators who can assist workers looking into medical treatment. The care coordinator is an intermediary between the injured worker and the insurance company, working to secure good alternative treatment options.

pillsThe program is used as a tool to change behaviors, which have been based on reducing the pain for injured workers in the short term by prescribing opioids.  Instead, by understanding the long-term effects, workers and insurance companies can work to discover opportunities for better care and less addiction.

All workers’ compensation cases are handled by judges within the state Department of Industrial Accidents. This agency is within the Executive Office of Labor and Workforce Development. Judges within the Department of Industrial Accidents noted an increase in overdoses and deaths due to opioid addiction, and they hoped the pilot would resolve cases swiftly, as a tool to fight an opioid epidemic.

Recently, the Massachusetts Reviewing Board for Industrial Accidents reassigned a case for further findings of fact after determining that the judge had adopted inconsistent medical evidence and had mischaracterized the evidence in support of his findings.  In this case involving an employee with a preexisting medical condition, the Board stated the rule that when combined with a pre-existing injury, pure emotional or mental stress injuries carry a heightened standard of “predominant contributing cause,” as set forth in § 1(7A) of Massachusetts workers’ compensation laws. The Board assessed the record and the nature of the claim brought by the employee in order to determine whether the predominant contributing cause standard applied.

The facts indicate that the injured worker in the underlying claim for benefits worked as a long-term employee for the Department of Corrections, as a chaplain at the hospital. After a service in the hospital chapel, a resident in a wheelchair approached a group in conversation with the employee.  From his seated position, the resident lunged and swung at the employee, striking him in the face.  The employee then pushed over the wheelchair, and the resident fell out of the chair onto the floor.  The employee’s conduct was investigated and led to disciplinary action.

The employee suffered from pre-existing mental health issues, which when combined with the injury, triggered  G. L. c. 152, § 1(7A).  The Board stated it was difficult, from the record, to determine the precise nature of his pending claim before the judge.  The judge noted the employee sought  § 34 benefits “for temporary total incapacity,” as well as §§ 13 and 30 medical benefits “for psychiatric injury.”  But the judge did not clarify whether the employee had claimed a physical injury with a disabling psychiatric sequela and need for psychiatric treatment, or an emotional stress or pure mental injury.

All employees are entitled to a workplace free from hazards and dangers.  When workers in the Boston area suffer injuries, they are entitled to file a Boston workers’ compensation claim according to Massachusetts law.  Workers’ compensation provides employees with medical care, partial wage replacement, and benefits for injuries or medical conditions suffered in the course and scope of their employment.  Additionally, federal and state laws ensure that employers provide a safe workplace that meets safety regulations and standards.


OSHA, the Occupational Safety and Health Administration, has recently issued a press release detailing the results of an investigation that determined Boston, Massachusetts behavioral health facility employees had been exposed to serious workplace hazards. The health facility faces $207,690 in proposed penalties from the U.S. Department of Labor’s OSHA for the violations, which were exposed during follow-up inspections.

In June 2017, OSHA had issued the facility a notification based on their failure to stop exposing employees to workplace violence.  This included physical as well as verbal assaults, kicks, bites, scratches, and hair pulling.  The notification made clear that the employer’s workplace violence prevention program had not adequately addressed the hazards posed by the patients’ verbal and physical assaults.  Specifically, employees were kicked in the stomach by patients, scratched, and punched, and in one case, a Nursing Supervisor suffered a concussion that resulted in her losing 15 days of work.

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