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file0001311453883 morguefile xeniaIt is vital to engage the right advocate when pursing a Massachusetts workers’ compensation claim.  In In Re Rivera’s Case, a Massachusetts woman hurt her back in a 2003 workplace accident.  As a result, the worker received partial disability benefits from May 2005 through September 2005, when her benefits were terminated.  At the time of termination, an administrative judge adopted the opinion of a neutral medical examiner and found that there was no longer a causal connection between the worker’s ongoing back pain and her work accident.

About three years later, the worker sought § 36 loss of function workers’ compensation benefits.  In her claim, the employee relied on the independent medical opinion of a physician who evaluated her in March 2008.  Following a conference on the matter, an administrative judge denied the employee’s claim.  The worker next appealed the judge’s order.  As part of her appeal, her attorney apparently stated both parties agreed to opt out of a required § 11A impartial medical examination.  In response, the worker’s employer promptly disputed the lawyer’s claim and stated the conference order did not indicate such an agreement occurred.

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file3061238876703 morguefile jdurhamIn King v. APA Transport Inc., a Massachusetts employee received § 34A workers’ compensation benefits following an on-the-job back injury he sustained in a 1999 industrial accident.  Several years later, the worker sought §§ 13 and 30 benefits for medical expenses related to his back harm.  As part of this request, the worker asked his employer to reimburse him for a variety of co-payments made to his psychiatrist beginning in 2003 and a second physician beginning in 2005.  The employee also sought compensation related to his resulting pharmaceutical prescriptions.

After the worker’s employer denied his medical payments request, an administrative judge ordered the employer to reimburse the employee’s ongoing medical expenses beginning on the date of a December 2011 workers’ compensation benefits conference.  In response, the employer filed an appeal.  The worker was then examined by a psychiatrist pursuant to § 11A(2).  The neutral psychiatrist’s testimony was the only medical opinion provided at a subsequent hearing on the matter.

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file0001964942635 morguefile daveSometimes, a Massachusetts employee’s workplace accident injury causes pain beyond the period during which he or she may receive disability benefits. In Rivera v. Dept. of Corrections, a corrections worker apparently injured his knees during an altercation between two Massachusetts inmates that occurred in 1996. Following the workplace injury, the correctional officer underwent surgery on each knee. At the time, the man’s employer paid him the maximum number of weeks of §§ 34 and 35 disability benefits allowed by law. The correctional worker later returned to his full-time duties.

In 2011, the employee filed a request for authorization for a medical evaluation by his treating physician due to ongoing pain in his left knee. The correctional officer’s employer denied the man’s request, based on the report of another doctor who stated the worker did not require additional medical treatment for his knees. After that, an administrative judge issued a conference order authorizing an additional medical evaluation under §§ 13 and 30. In response, the man’s employer filed an appeal.

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IMG_2113 morguefile pedrojperezA former Handy Technologies worker has filed a proposed class action lawsuit against an on-demand cleaning company in the District of Massachusetts. In Emmanuel vs. Handy Technologies, Inc., the Boston-based worker claims the cleaning company illegally classified her as an independent contractor in violation of federal law. In her complaint, the woman argues that she should have been classified as an employee and also provided with Social Security and other benefits. Instead, the cleaner states she was classified as an independent contractor in order to shift labor costs away from the business.

In her lawsuit, the cleaner states her independent contractor status frequently resulted in wages that fell far below the mandatory minimum for employees. She also claims she was required to purchase a job-related cleaning kit from the company. In her case, the worker reportedly asked the court to order Handy Technologies to pay its cleaners minimum wages and offer reimbursement for work-related expenses.

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In Golub v. MBTA, a bus driver began working part-time for his employer in 2011. In early 2012, the driver was transferred to a customer service position where he was required to split his shift among a number of train stops. As part of his customer service agent (“CSA”) duties, the worker oversaw the train station, monitored safety, and attempted to meet each train. Since the man worked at a particular station approximately three times per week, he was required to climb stairs regularly in order to meet the arriving trains.

About one month after beginning his CSA position, the worker apparently developed knee pain. Despite seeking medical care for his pain, the employee failed to notify his employer regarding his workplace harm. A few months later, the worker received a cortisone injection in his knee. Five days after receiving the shot, the man ceased working and underwent knee surgery. The employee was cleared to work as a bus driver about five months later. Despite this, the man’s employer refused to allow him to return to work as a bus driver for several months.

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100_2161 morguefile tatAn appellate court has upheld an award of costs in a workers’ compensation case that was precluded due to res judicata.  In In Re Richards’ Case, a bank employee filed a workers’ compensation benefits claim related to the back injury she purportedly sustained while moving boxes at work in May 2005. After her claim was denied by an administrative judge, the woman ultimately appealed the case to the Court of Appeals of Massachusetts. In 2009, the appellate court affirmed the administrative judge’s decision. Instead of seeking further appellate review, however, the worker filed several additional benefits requests based on the same alleged injury. Three claims were withdrawn, and a fourth was considered at a hearing before a workers’ compensation judge.

The administrative judge found that the employee’s claim was barred by the doctrine of res judicata. In addition, the worker’s attorney was ordered to pay the full costs of the proceeding because the woman’s claim was filed without a reasonable expectation of prevailing in violation of § 14. In 2014, the Department of Industrial Accidents Reviewing Board affirmed the judge’s decision, and the woman again filed an appeal with the Court of Appeals of Massachusetts.

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DSC03438-B2 morguefile dodgertonskillhauseAccording to a report that was recently published by the National Academy of Social Insurance (“NASI”), workers’ compensation benefits paid per $100 of employee payroll declined by five percent between 2009 and 2013 in the United Sates. At the same time, employer costs and the number of workers employed across the country reportedly increased. In addition, “Workers’ Compensation: Benefits, Coverage, and Costs, 2013” states the benefits available to injured employees in 2013 was one of the lowest rates recorded in more than 30 years. Last year, injured workers in the U.S. collected about $63.6 billion in benefits, even though employers paid approximately $88.5 billion into various state workers’ compensation insurance programs.

Between 2009 and 2013, the percent of payroll benefits available to injured employees declined in 39 states. Although workplace accident injuries reportedly dropped during that time, many state legislatures made it more difficult for employees to qualify for work-related disability and other benefits. More stringent legal rules, reduced medical coverage, and additional filing and other requirements apparently made it tougher for workers across the nation to file a successful workers’ compensation benefit claim.

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OLYMPUS DIGITAL CAMERADue to numerous requests for additional time for safety training, the United States Department of Labor’s Occupational Safety and Health Administration (“OSHA”) recently announced that a temporary enforcement policy related to the agency’s new Confined Spaces in Construction standard would become effective on August 3rd. Full enforcement of the new policy will reportedly begin in October.

The rule was issued in May and requires employers in Massachusetts and across the nation to afford construction workers with substantially similar safety protections that are currently provided to workers in other industries such as manufacturing. Those measures include sharing information regarding potential health and safety hazards with workers and continuously monitoring potential dangers related to enclosed work spaces. The new standard is expected to reduce fatal accidents and protect as many as 800 construction industry employees from sustaining serious harm at work each year.

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file000823245462 morguefile swatcopMassachusetts correction officers who are hurt by a prison inmate may be entitled to receive assault pay in addition to workers’ compensation benefits. In Flaherty v. Sheriff of Suffolk County, a Massachusetts correction officer was injured by a prisoner in early 2006. Following his workplace harm, an administrative judge ruled that the officer was partially disabled. As a result, the employee received workers’ compensation benefits through September 2010 when he accepted a lump sum settlement from his employer.

About two months later, the correction officer filed a request for assault pay for the period during which he received workers’ compensation benefits under G. L. c. 126, § 18A. Although the officer’s employer did not dispute that the man’s injury warranted assault pay, the employer argued the man was not eligible to receive such payments because he failed to file his claim within three years of his 65th birthday and subsequent mandatory retirement. A Superior Court ruled in favor of the officer, and his employer filed an appeal with the Appeals Court of Massachusetts, Suffolk.

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file0001343835156 morguefile clickThe exclusivity provisions of the Massachusetts Workers’ Compensation Act generally bar a worker’s common law personal injury action brought against an employer. In Johnson v. Amherst Nursing Home, Inc., a woman was employed as a certified nurse aid (“CNA”) at an Amherst nursing home. In August 2012, the CNA was sexually assaulted by a fellow employee at work. The CNA immediately reported the incident to her manager, who stated local authorities would be notified and the coworker would be terminated. Management also agreed to keep the report confidential. Instead, the incident was not reported to police, and the alleged attacker was asked to resign from his position.

Next, the CNA apparently began being harassed at work. As a result, the CNA asked to be reassigned to a different unit of the facility. The employer refused the CNA’s request, and she resigned from her position with the nursing home about one month after the incident occurred. In May 2014, the CNA filed a lawsuit against her employer in the District of Massachusetts. In her complaint, the woman accused the nursing home of negligent hiring and supervision of her alleged attacker and other claims. The nursing home responded by filing a motion to dismiss the case for failure to state a claim under Federal Rule 12(b)(6).

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