Massachusetts Workers' Compensation Lawyer Blawg
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DSC_0363 (2) morguefile JasonGillmanIn Massachusetts, an employer may not terminate a worker for exercising his or her right to receive workers’ compensation benefits. Despite this, an employee who is seeking such benefits may be fired for other well-articulated reasons. In Brewington v. Suffolk County Sheriff’s Dept., a jail officer suffered a dental injury in an altercation at work. As a result of his injury, the man sought workers’ compensation benefits. While gathering proof in support of his claim, the jailer intentionally submitted a back-dated report and medical progress note that was written months later to his employer’s third-party administrator. After this was discovered, the man was terminated from his position.

In response to being fired, the former jailer filed a wrongful termination lawsuit against his former employer in Massachusetts Superior Court. According to the man, he was fired for exercising his right to receive workers’ compensation benefits. The man’s former employer then filed a motion for summary judgment. In general, such a motion asks a court to rule there are no genuine issues of material fact in dispute and to enter judgment in favor of the moving party. After concluding no reasonable jury could find the man was terminated for exercising his rights under the Workers’ Compensation Act, the trial court granted the employer’s motion.

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file000586498819 morguefile claritaA workers’ compensation judge may request additional medical evidence in complex cases. In Pasquale v. Benchmark Assisted Living, LLC, Board No. 039096-05, a woman hurt her right knee while working at a Massachusetts assisted living facility in 2005. Following her injury, the worker’s employer began paying her § 34 total incapacity workers’ compensation benefits based on her average weekly wage of about $1,250.

About 18 months later, the worker sought mileage reimbursement at a conference that was held before an administrative judge. During the conference, the judge also considered the employer’s request to modify or discontinue the hurt worker’s benefit payments. Following the conference, the administrative judge denied the employer’s request and ordered the assisted living facility to reimburse the injured employee for her mileage at a rate of 30 cents per mile. Both the worker and the employer then appealed the judge’s decision.

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1023098_warning_icon_27 sxchu username resignentThe United States Department of Labor’s Occupational Safety and Health Administration (“OSHA”) has reportedly issued more than $1.76 million in fines to a furniture store chain. According to OSHA, over 1,000 furniture company workers were injured at a single facility during a period of less than four years. About 100 of those injuries involved a machine that was operated without proper safety guards. Sadly, at least one worker lost three digits due to preventable safety hazards. In addition, the company was previously cited for a similar 2014 partial finger amputation accident.

Following the second finger amputation injury, OSHA conducted an inspection of the furniture company’s manufacturing facility. As a result, the business received 12 willful, 12 repeated, and 14 serious safety violations. A willful violation is one that was committed with voluntary disregard or plain indifference towards worker safety and health. In addition, repeated violations occur when an employer is issued an OSHA citation for the same or similar regulation violation within a five-year period. A serious violation is one that an employer knew or should have known about that is likely to cause severe harm or death.

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file000846429979 morguefile username cohdraIn many states, employees apparently have a tough time collecting benefits following a workplace injury because the workers’ compensation system that was designed to protect them has slowly eroded. According to an analysis performed by the nation’s Occupational Safety and Health Administration (“OSHA”), the most hazardous jobs are typically performed by those workers who are least able to afford an injury. Although safety is often touted in many dangerous industries, the most vulnerable workers reportedly suffer fractures, cuts, and other workplace injuries at alarming rates. Instead of receiving the no-fault accident benefits they are entitled to, employees in Massachusetts and across the nation are finding it increasingly difficult to collect medical and other workers’ compensation payments.

For example, one employee who was tasked with cleaning a Massachusetts college campus twisted her ankle at work. Both her manager and her employer’s insurer apparently denied benefits even though the woman’s ankle eventually needed surgery. Instead of ordering the woman to see a doctor, she was allegedly forced to complain for months before receiving benefits totaling about 60 percent of her lost wages.

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1421533_pills_drugs sxchu username fsstudioWorkers’ compensation benefits managers in Ohio, Oklahoma, Texas, and Washington currently utilize state-regulated drug formularies in an effort to decrease prescription drug costs. In addition, Arkansas will reportedly be launching such a program in July. Several other states, including California, Louisiana, Maine, Montana, and Tennessee, are apparently considering establishing a drug formulary as well.  In general, a formulary is a list of approved medications that may be prescribed for certain ailments or injuries.

Proponents of state-regulated drug formularies claim such programs not only cut workers’ compensation costs but also help injured workers avoid receiving inappropriate treatment that could keep them out of the workplace for a longer period of time.  Although each program is different, state-regulated drug formularies are designed to guide pharmaceutical treatment and ensure that any drugs prescribed to an injured employee are related to his or her workplace harm.

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file0001362090004 morguefile wax115According to a survey that was recently conducted by a risk solutions company, fewer workers’ compensation claims are reportedly being filed by health care employees across 11 states. In its Health Care Workers’ Compensation Barometer report, the company analyzed the frequency and severity of workers’ compensation claims filed by individuals who were employed by more than 1,100 medical facilities across the nation over the past 10 years. According to the risk solutions business, the frequency of injury claims declined steadily throughout the past decade. As a result, the company expects workers’ compensation claims filed by employees in the medical field to continue to decline by about one percent per year.

Although fewer health care workplace injury claims are now being filed, the report shows an increase in workers’ compensation claim severity. The report also cites patient management as the leading cause of all worker harm claims in the health care field. Patient management apparently accounts for at least one-third of all medical worker injuries and loss. In addition to harm resulting from lifting and moving patients, health care employers are apparently concerned about the risks associated with handling materials related to emerging diseases, such as the Ebola virus. The risk report states worker claim severity is expected to continue to increase at a rate of two percent per year.

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file0001097532734 morguefile mensaticA Massachusetts administrative law judge (“ALJ”) may not adopt conflicting medical testimony when awarding workers’ compensation benefits. In Loretta R. King v. City of Newton, a 62-year-old woman was employed in a public school cafeteria. In April 2010, the woman allegedly injured her right leg when she slipped and fell while cleaning cafeteria tables at work. After her fall, the school nurse applied an ice pack to the woman’s injury. The following day, the woman returned to work using a cane, and her supervisor ordered her to seek medical care. Two days after she was injured, the employee was diagnosed with a sprained ankle and bruised knee at a local hospital. Soon afterward, the woman’s employer began paying her temporary total incapacity workers’ compensation benefits.

Following a June 2011 medical examination report, the woman’s employer sought to discontinue her workers’ compensation disability benefits. During a conference regarding the matter, the employee requested that her employer pay for a motorized lift chair to be installed at her home. The ALJ considering the case denied the employer’s request to discontinue the employee’s disability benefits and ordered the employer to pay for the requested medical device. The woman’s employer then appealed the ALJ’s order.

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When an employee’s work-related medical condition grows worse, the insurer may contest the claim on the basis that the worsening is caused not by the original work injury, but by the employee’s growing older. The employee has the burden of proving that he or she should continue to receive benefits because the worsening of the condition is not caused by aging, but by the work injury.industrial-park-1372192-m[1]

An example is an employee’s pain growing more severe, requiring stronger doses of pain medication. Even when the pain, in the opinion of the examining physician, is out of proportion to any objective physiological findings, if the physician finds the employee to be credible, he or she may form an expert opinion that the employee can’t work based on that pain report.

However, the judge, in the decision awarding benefits, needs to make specific findings that the employee’s underlying work-related injury grew worse for reasons other than the employee’s growing older. The judge’s analysis is critical to a proper foundation for the award of benefits. Continue reading →

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Insurers and employers around the United States are attempting to hold the line against paying injured workers’ expenses for medical marijuana, even in states where medical marijuana is legal. They argue that they should not be required to pay for a substance that is illegal under federal law. This issue has not yet been decided by courts in Massachusetts, but legal developments in other states indicate it is only a matter of time.1-1223098-m[1]

court of appeals in New Mexico, in the case of Gregory Vialpando v Ben’s Automotive Services and Redwood Fire & Casualty, ordered an employer to reimburse an injured worker for the cost of his medical marijuana.

Vialpando had severe pain from a low back injury he incurred at work, and from the resulting failed surgeries. One doctor described him as suffering from “some of the most extremely high intensity, frequency and duration of pain, out of all of the thousands of patients I’ve treated within my seven years practicing medicine.” Vialpando was taking narcotic-based pain relievers and anti-depressant medications, but without relief. His treating physician recommended medical marijuana.

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Courts, including the Reviewing Board that rules on appeals in Massachusetts workers’ compensation cases, are doing their best to update court services by allowing the use of electronic systems for accepting and storing court documents.

These do not always work perfectly.cell-phone-tower-3-129491-m[1]

An employee’s attorney may submit medical records or other documents to the court electronically and then be surprised at the hearing to find that the administrative judge (AJ) has not received the documents. The AJ may have arrived at a decision and denied benefits to the employee, without having reviewed the evidence the employee submitted. Continue reading →