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jackhammer-work-559616-m[1]An insurance company may try to hedge its financial bets by claiming an immediate set-off for  future benefits it may be obligated to to pay, such as lost wages or medical bills, when an injured worker receives a settlement from a third party. However, the insurer is only entitled to a set-off for compensable benefits and not for either non-compensable expenses or even for compensable expenses if they are not foreseeable.

A Massachusetts Appeals Court rejected a motion by EastGuard  Insurance Company for such a set-off and affirmed the trial court’s allocation of funds from settlement of a worker’s claim for on-the-job injuries and award of the full amount allocated for the claimant’s pain and suffering.

The court rejected EastGuard’s motion because it offered only “equivocal evidence” of the potential for compensable future expenses for lost wages and medical expenses for management of the worker’s pain resulting from his injuries. Continue reading →

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In adjudicating a claim for injuries  at work, a court must decide not only whether the injuries in fact occurred at work but also whether the allegedly responsible party was the worker’s employer. If so, the workers’ compensation system provides the sole remedy, and the civil courts have no jurisdiction.

The Massachusetts Supreme Court in a recent case ruled that the estate of a counselor killed by a resident at the mental health facility where she worked could not sue the directors of the nonprofit that administered the facility for wrongful death and punitive damages. This was despite the claim that the directors were responsible because they voted to adopt policies and procedures that allegedly led to the counselor’s death.closed-door-3-823221-m[1]

The court’s rationale for dismissing the case for lack of civil jurisdiction was that the board of directors acted as the counselor’s employer, and, under the exclusive remedies provision of the Workers’ Compensation Act, the individual directors were immune from suit for injuries sustained by the counselor in the course of her employment. Continue reading →

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An employee of the Massachusetts Institute of Technology (MIT) was denied benefits under the workers’ compensation statute, specifically G.L. ch 152, sections 13, 30, and 34, for temporary total incapacity resulting from an injury he suffered while commuting home from work on his motor scooter.pretty-in-red-3-416960-m[1]

The administrative law judge (ALJ) cited the ‘going and coming rule’ to justify the decision, which was upheld by the Department of Industrial Accidents (DIA). The rule usually exempts employers from liability for injuries to an employee while traveling to or from work.

The Appeals Court of Massachusetts in June 2014, affirmed, in Daniel J. Kelbe’s Case, No. 12-P-1776, while acknowledging that there are exceptions to the rule, such as the one that the claimant cited, that the street where he was injured was controlled by his employer. Continue reading →

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autumn-trails-1439723-m[1]A Massachusetts Appeals Court ruled that the widow of an injured worker was entitled to benefits under the workers’ compensation laws following her husband’s suicide due to depression caused by an injury to his right, dominant hand on his job as a drywall taper with New England Finish Systems of Salem, New Hampshire. The employee  was unable to do routine tasks around his home, pursue sports or hobbies, or have any hope of being able to work again. He had limited education and believed he needed full use of both hands to return to drywall work.

The court affirmed the finding of the administrative law judge (ALJ) to order payment of benefits because the employee’s suicide resulted from his injury-related depression, and there was a direct, unbroken causal relationship between the  injury and the employee’s despair and his tragic taking of his own life.

The Appeals Court also agreed with the ALJ that Dr. Martin Kelly, the plaintiff’s medical expert, presented compelling testimony that the employee’s suicide did not result from psychological problems that he had suffered before the accident, as had been claimed by the insurer, Liberty Mutual Insurance Company, to justify discontinuing his benefits on that basis, leaving the employee’s wife and three children with no financial resources less than a year before he killed himself. Continue reading →

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sidewalk-skatin-222082-mIn a recent Massachusetts Reviewing Board decision, the Board affirmed a decision denying a worker’s claim for payment of medical benefits. The 46-year-old worker had wanted a total right hip replacement among other medical care for his injuries. He worked as a merchandiser, setting up displays and moving products by lifting and carrying. He started the job in 2003, and he weighed 245 pounds at that time. By the time he left he was 280 pounds. He had played football in high school and street hockey for fifteen years of adulthood. In 2002, he hurt his right knee and needed arthroscopic surgery. He didn’t play street hockey after his surgery.

The worker claimed that in 2009, he suffered right hip pain related to his job. He sought treatment with a doctor who referred him to an orthopedic surgeon. The surgeon administered epidural steroid shots over the year and experienced some relief. The worker didn’t tell the doctors that his hip pain was due to his job. One doctor diagnosed his condition as bilateral hip dysplasia, degenerative changes, and arthritis.

An impartial physician agreed with the diagnosis and found the worker suffered bilateral degenerative arthritis of the hips, arising from his congenital hip dysplasia. The worker asked for payment of medical treatment and was denied. He appealed. The administrative law judge (ALJ) accepted the insurer’s offer of proof that the worker had a combination injury. He took lay evidence and a permitted the deposition of one of the treating doctors. The parties submitted extra evidence. Continue reading →

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bulldozer-757759-m-2Summer is a busy time for construction in Massachusetts and elsewhere in New England. In the rush to get things done while the weather conditions are good, some employers fail to provide adequate protections against hazards. The U.S. Department of Labor’s Occupational Safety and Health Administration cited a construction company after a worker was hit by a partially suspended load of sewer pipe that was 12 feet long and falling to the bottom of an unprotected trench 13 feet deep. An excavator was moving the pipe. Two other workers were inside the unprotected trench installing a new sewer system.

The worker suffered a broken vertebra. OSHA cited the construction company and proposed $110,400 in fines for 11 safety violations, involving failing to protect against struck-by hazards and trench cave-in hazards. Ten serious violations were issued due to inadequate training, lack of adequate markings on rigging equipment, permitting an excavator to operate within 10 feet of energized overhead power lines, and lack of head protection.

OSHA also issued a willful violation for failing to make sure that workers were protected from cave-in when working in a trench deeper than five feet. All excavations five feet or deeper are required to be protected from collapse. Moreover, construction companies are not supposed to permit exposed and unprotected gas and water lines in a trench.

OSHA has had strict guidelines and enforcement to prevent trench and excavation collapse for more than 12 years. Six of OSHA’s 10 regions conduct local emphasis programs associated with trenching and excavation operations. Whenever an OSHA office receives notice of a trenching operation, including non-formal complaints or reports from the public, the office makes note of the state and condition of the operation, including its hazards, notes the name of the worksite and the contractor, and contacts the Area Office supervisor so that he or she can decide whether an inspection would be appropriate.

During an initial visit involving trenching or excavating, if someone from OSHA sees an obvious hazard in plain view, an inspection will be conducted even if it is inconvenient to contact a supervisor first. The supervisor is informed after the inspection is completed.

Typically supervisors only authorize inspections of trenching and excavation when an inspection already occurred if there are apparent serious violations. When a worksite hasn’t been inspected within the last 30 days, there will be an inspection unless it is obvious that the trench is less than five feet deep or is in compliance with all OSHA standards.

Broken vertebrae are actually among the more minor injuries that the worker above could have suffered. Excavation is one of the most dangerous construction activities. If a deep trench collapses or caves in, it can happen quickly, suffocating workers inside the trench. In this case, since the worker had suffered a broken vertebra, it would have been very difficult to get the worker out of the trench in time had the trench caved. If you are hit by an object or otherwise seriously injured while working as an employee on a construction site, you should contact an experienced workers’ compensation attorney for representation.

If you are hurt at work,  you may be entitled to workers’ compensation benefits. An experienced Massachusetts workers’ compensation attorney can evaluate whether you have a sound claim and fight to make sure that your employer and its insurer follow the rules or give you guidance if there is no insurance available. Contact us by calling 800-367-0871 or using our online contact form.

More Blogs:

Submitting Additional Testimony in Massachusetts Workers’ Compensation, March 12, 2013

Combustible Hazards in Massachusetts’ Workplaces, March 9, 2013

Impact of Misrepresentations About Your Activities in Massachusetts, March 7, 2013

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calculator-stethoscope-1004851-mDoctors require an accurate medical history to diagnose an injury. The medical history is often dependent on a worker understanding and communicating with the doctor. Recent immigrants or those with difficulty speaking English may provide incorrect information to a doctor not understanding the question. Any incorrect information can change the diagnosis or the doctor’s assessment of the cause of an injury. This is one reason it can be useful to consult with an attorney as soon as you know you might need to file a worker’s compensation claim in Massachusetts. An attorney can make sure that any inaccuracies in the records are addressed before the claim reaches an administrative law judge, or try to arrange for a translator during a medical examination.

In a recent case, the insurer appealed from a decision that awarded ongoing temporary total incapacity benefits to a 28-year-old worker after a work injury. The worker was from the Dominican Republic and had worked for the employer as a carpenter/laborer but had trouble speaking and understanding English. He was working on a roof and moving a plywood sheet when wind pulled it away from him and caused him shoulder pain. On the same day, he hit his finger with a hammer and was treated at a medical center for his finger and shoulder.

When getting back to work, the worker was moving a bathtub downstairs when his co-worker slipped and left him holding the tub. This hurt his shoulder. He went to the ER the next day, but, since it was crowded, he left without seeing a doctor.

Continue reading →

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fish-market-1433768-mRecently the U.S. Department of Labor’s Occupational Safety and Health Administration investigated the death of a sanitation supervisor at a fish processing plant. The supervisor died after getting caught in a shucking machine with rotating parts. The supervisor’s employer was cited for seven safety violations, including failure to put into effect basic safety procedures for workers who service or clean machines.

The OSHA director explained that it was a death that could have been prevented by implementing safety practices. A citation was issued for the company’s failure to implement lockout/tagout procedures to protect workers who cleaned machinery. Other violations included the failure to provide lockout devices, not periodically inspecting the procedures to make sure the requirements were being met, and failure to train those employees affected in lockout/tagout procedures. Workers were exposed to falls and were not trained in chemical hazard communication methods.

A temporary employment company that sent temporary workers to the plan was also cited for lack of lockout/tagout procedures, lack of chemical hazard communication, and exposing workers to hazards in connection with ladders. The company had a supervisor on site who knew that the working conditions were not good for employee safety. Continue reading →

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contruction-zone-1208126-mIt can be important to be alert to not only the danger of falling in work spaces, but also the danger of falling objects. Recently, the U.S. Department of Labor’s Occupational Safety and Health Administration cited a workplace in which a 46-year-old employee died as a result of being crushed by a 12,000-pound steel bridge arch beam. He had been spray painting the beam before it fell on him.

OSHA discovered that the bridge company that employed him had failed to make sure that the beam that fell and similar beams were sufficiently braced to prevent falling when workers painted them. The area director explained that the death wouldn’t have occurred if the employer had made sure that the beams were secured appropriately.

There were also a number of other hazards. The workers cleaning and painting the beam didn’t have adequate respiratory protection while working in the midst of spray paint vapors. They were wearing half-face respirators but didn’t have the right respirator filters. They were not evaluated by the employer to determine medical fitness to use them and did not know about the hazards of the chemicals associated with spray paint.

Moreover, an unguarded grinder permitted flying debris, and there was excess air pressure from a cleaning hose. There was a risk of flash burns from a lack of screens where there was welding. There were also misused electrical cords, leading to electric shock and fire hazards. There was a damaged access ladder, and snow and ice had accumulated on the emergency exit route. In total, there were 13 serious violation citations due to the probability of serious physical injury or death that the employer should have known about.

More disturbingly, there were two repeat violations. There was an unguarded crane that presented a fall hazard, and there was a power cord that was installed through the wall to provide power to equipment outside the building. $72,450 in fines were proposed by OSHA.

How should employers guard against the risk of falling (or flying) objects? If you work in construction or any other workplace where falling objects are a significant risk, it is appropriate for your employer to provide you with a hardhat that fits properly. Work sites should be maintained such that materials are stacked appropriately to prevent falling or collapse. Toeboards and debris nets can help.

In general, it is also a good idea to secure tools and materials if they are near any sort of opening where they could fall on people below. Hazard areas should be barricaded, and warning signs should be posted. Guardrails and debris nets should be used to stop things from falling or catch them.

If you are struck by a falling object, you may suffer bruises, contusions, or broken bones. It is also possible you may suffer a concussion or some kind of internal damage or a crushed body part. Even if your injuries seem minor, you should visit the doctor as soon as possible to make sure there are no internal injuries that are more severe.

If you are hurt at work,  you may be entitled to workers’ compensation benefits. An experienced Massachusetts workers’ compensation attorney can evaluate whether you have a sound claim and fight to make sure that your employer and its insurer follow the rules or give you guidance if there is no insurance available. Contact us by calling 800-367-0871 or using our online contact form.

More Blogs:

Submitting Additional Testimony in Massachusetts Workers’ Compensation, March 12, 2013

Combustible Hazards in Massachusetts’ Workplaces, March 9, 2013

Impact of Misrepresentations About Your Activities in Massachusetts, March 7, 2013

 

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silver-foil-texture-1166958-mMassachusetts manufacturers who work with fine metal powders should take special precautions to protect their workers. Failure to do so can lead to serious injuries or even death. Although employees can bring workers’ compensation claims for their losses, there is no excuse not to take precautions against the known risks of fire and explosions.

Recently OSHA cited a 3D printing company for one willful and 9 serious violations of workplace safety standards. It inspected the company after an explosion and fire. In the fire, a company worker received third degree burns. OSHA learned that the company failed to prevent and protect the workforce from fire and explosion hazards that resulted from combustible metal powders that were used in the 3D printing.

The powders involved were based on titanium and aluminum alloys. When these are in fine powder form, it is very easy for them to catch fire or explode. The company in this case did not take away known sources of ignition, nor did it follow pertinent instructions from equipment manufacturers. It did not alert the fire department to the workplace presence of hazardous materials. Furthermore, it had put its workstation and the flammable powders near the area with the explosion potential. Continue reading →