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In a recent appeal involving a dispute over an injured employee’s weekly wage, the Massachusetts Department of Industrial Accidents, Reviewing Board, held that since the employee had not appealed a conference order, he was not entitled to a better result than what he had received in that order.   The Board examined whether the judge had properly adjusted the employee’s award upward, without an appeal by the employee.


In this case, the employee worked as a carpenter and was injured at work when moving a large piece of machinery that tipped.  His claim for benefits was granted, since there was not a dispute regarding his coverage under workers’ compensation, nor was there a dispute regarding liability for his injury.  After the insurer for his employer began paying weekly benefits, based on a weekly wage of $800.00 a week, the employee then sought an adjustment to his wage.

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The Massachusetts Department of Industrial Accidents, Review Board, recently analyzed whether an employee could receive workers’ compensation for injuries sustained while driving home from a nursing job.  According to the “going and coming” rule, employees who are traveling to and from work are barred from recovering compensation for their injuries.  In the case before the Board, the workers’ compensation insurance company argued that the employee had a fixed place of business, and she had been merely commuting home.

commute injury worker

The Board turned to caselaw to determine whether the facts supported a finding that the employee could recover benefits.  In this case, the 71-year-old employee worked as a nurse of the employer.  The employer assigned her to work at a facility in Vermont, while the employee lived in Danvers.  She would travel to Vermont at the start of the work week and return home after her shift ended, five days later.

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Following a workplace accident, injured employees have the right to file a workers’ compensation claim for benefits.  The Reviewing Board for the Massachusetts Department of Industrial Accidents recently assessed whether an employee was entitled to costs for a total hip replacement after suffering injuries in a work-related accident.  At issue in the case was whether the judge had erred when he found that the medical issues were not complex, and therefore there was no need for additional medical evidence.

hospital room

The employee worked for over 30 years for the same company, first as a machine operator and then as an x-ray technician. An accident occurred at work, and the employee received a double knee surgery. During his period of recovery, the employer paid weekly indemnity benefits.

After filing a claim for workers’ compensation benefits that alleged his left total hip replacement was caused by the work injury, an administrative judge rejected the claim, and the employee appealed.  The employee was examined by an impartial physician.

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In a recent case before the Massachusetts Appeals Court, the issue was whether an employee should receive interest on hiscalculator unpaid claim for benefits as of the date of filing the claim that eventually led to an award, or whether the filing date for an earlier claim that was eventually terminated should serve as the date that interest would begin to accrue.

Massachusetts law holds that interest is to be assessed on unpaid workers’ compensation claims as of the date the Department of Industrial Accidents receives notice of the claim.  The statute dictates that when payment for an award of benefits is not made within 60 days of being claimed by an employee, interest accrues on sums due.

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In a decision addressing the successive insurer rule in workers’ compensation cases, the Massachusetts Department of Industrial Accidents, Review Board, recommitted a case in which the judge had erred by holding that an employee had not suffered an injury to her right shoulder while working for her most recent empemergency roomloyer. The Board held that the judge inappropriately substituted his own opinion for that of the medical examiner and mischaracterized that opinion so that he would not have to abide by the legal effect. In other words, since the employee’s shoulder injury was worsened while working for the second employer, that employer was required to compensate her, according to the successive insurer rule.

According to the successive insurer rule, employers must pay compensation to employees who suffer a worsening of an injury caused while working for a previous employer.  Before working for her most recent employer, in October 2007, the employee suffered injuries to her shoulder and right knee. She had fallen down a flight of stairs and was paid weekly total incapacity benefits through March 2008.

The employee had undergone shoulder surgery and in December 2012 secured a lump sum settlement agreement with her first employer for medical treatment and benefits. Liability had been settled regarding injuries to her left shoulder and a sprain/strain to her right shoulder.

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In a decision assessing whetherclassroom a judge erroneously denied an employee workers’ compensation benefits, the Massachusetts Department of Industrial Accidents Reviewing Board upheld the order.  According to Massachusetts law, an employee who engages in conduct that is serious and willful misconduct is prevented from recovering benefits under § 27 of the Workers’ Compensation Act.

Additionally, employers that make a bona fide personnel decision under § 1(7A), including terminating an employee, can preclude that employee from receiving compensation. In this case, the Board determined that the facts supported a finding that the employee was not entitled to benefits.

The employee in this case worked as a custodian for public schools within the Town of Milton.  He was involved in a verbal and physical altercation with the Director for Milton Public Schools.  The employer conducted an investigation of the verbal and physical incident and ultimately terminated the employee.

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In a case before the Massachusetts Department of Industrial Accidents, the Reviewing Board assessed an injured worker’s claim for § 34 or, alternatively, §34A benefits from March 30, 2012 forward.  Turning to previous decisions concerning the employee’s claim that he suffered mental injuries while working as a maintenance mechanic aide for his employer, the judge had found that while the employee was incapacitated from working, this incapacity as of March 30, 2012 had not been caused by a work accident in 2003 but was due to “non work related issues.” The Massachusetts Reviewing Board of Industrial Accidents affirmed this holding.


In 2003, while working for his employer and performing housekeeping, mowing, and general maintenance, the employee alleged that he suffered verbal harassment from tenants.  He had been enforcing a non-smoking policy for his employer at the time. While he attempted to return to work, he had been diagnosed with anxiety and was unable to return to his position. The employee began to work in his own business, but that eventually failed.

Shortly afterward, the employee and his wife separated, and he moved from the family home. He was diagnosed with chronic depression, and according to one medical doctor, non-work events triggered a depression.  The judge found there had not been a causal connection between the employee’s condition and the history of his injury.

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A Massachusetts appellate court recently affirmed a decision by the Department of Industrial Accidents, Reviewing Board that reduced an injured employee’s initial weekly benefits award based on her work-related injury. According to the appellate court, the judge’s second order had not been “in opposition” to the earlier ordcarpal tunnel syndromeer but had addressed and rectified the omitted calculation of the employee’s earning capacity. In other words, while the second order did reduce the weekly workers’ compensation benefits paid by the insurer to the employee, this was only because the first order had erred by not factoring the employee’s earning capacity into the award.

After alleging that she had suffered from bilateral carpal tunnel syndrome since June 2011, the workers’ compensation claimant in this case filed a workers’ compensation claim in July 2011. She claimed total temporary incapacity as a result of her injury.

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In a recent appeal, the Massachusetts Department of Industrial Accidents Reviewing Board determined that there had been errors in the judge’s decision to award an injured employee workers’ compensation disability and benefits, including payment for a back surgery aoperationnd related costs. The workers’ compensation insurer in this case had argued that the employee had not met his burden of showing causation for his work-related injury and resulting disability.

The judge had adopted facts showing that the employee in this case had a frequency of lifting and carrying as part of his work duties that differed from the facts the employee provided to the impartial medical examiner.   The judge noted the employee had “exaggerated somewhat” regarding the amount of weight he lifted, but nevertheless, the judge adopted the medical opinion based on this exaggeration.

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Addressing the denial and dismissal of an injured employee’s claim for workers’ compensation benefits, the Massachusetts Department of Industrial Accidents Review Board stated the rule that a judge’s decision must be based on all of the evidence received from the parties at a proceeding.ladder Since the judge in this case had not considered all of the medical evidence, which was submitted by the parties but mistakenly not entered into the system by the judge, the Board vacated the judge’s decision.

The workplace incident in this case occurred when an employee, working as a cook and a laborer for a restaurant, slipped and fell off a ladder.  After landing on his back in July 2013, the employee went to the hospital, where he received treatment and was released.  A few months later, he returned to work for two days but was sent home due to his inability to perform his job. He remained out of work at the time of the appeal.

The workers’ compensation insurer for the employer paid the employee’s § 34 benefits and then filed a complaint to modify or discontinue the benefits. The judge essentially allowed for a discontinuance, since he ordered a closed period of  § 34 benefits, from January 2014 to July 2015.  The employee appealed and underwent a medical examination according to § 11A in August 2015.

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