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file0001010530177-morguefile-username-Alvimann-225x300In Cleveland v. P. J. Keating Materials Corp., a Massachusetts administrative law judge (“ALJ”) ordered an employer to pay a worker nearly $645,000 in § 28 benefits related to the harm the employee sustained in a 2002 industrial accident. Under the statute, a workers’ compensation claim may be doubled if the employee’s harm results from an employer’s serious and willful misconduct. Following the award, the ALJ denied the employer’s request to stay payment or commit half of the funds to an escrow account pending an appeal. After that, the worker was provided with and apparently spent the full award.

Next, the Department of Industrial Accidents Reviewing Board reversed the ALJ’s § 28 award, and the Massachusetts Appeals Court affirmed the Board’s decision. After further appellate review was denied, the employer sought to recover the money paid to the injured worker under the section. Eventually, another ALJ filed an award for recoupment in favor of the worker’s employer. The employee then appealed her decision to the Board.

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file5691252161803 morguefile roganjoshAn administrative judge is required to state how an injured worker’s earning capacity was determined when making a workers’ compensation award. In Miranda v. Huntington Hotel Corp., a hotel housekeeper hurt her back while lifting a bag of trash. As a result of her compensable back harm, the housekeeper underwent two surgical procedures. The woman’s employer paid her § 34 total incapacity workers’ compensation benefits until they were exhausted by statute. After that, the housekeeper sought permanent total incapacity benefits under § 34A. Following a hearing, an administrative judge awarded the worker benefits for a period of one year. In response to the judge’s decision, both parties filed an appeal.

Soon after, the housekeeper was examined by a § 11A impartial physician, whose testimony was then entered into evidence. At no time did the housekeeper or her employer seek to admit additional medical evidence. At a subsequent hearing, the housekeeper’s employer claimed the woman exaggerated about the extent of her disability. In support of its position, the employer offered surveillance evidence that was provided by an investigator who followed the housekeeper around town as she ran several errands. The housekeeper admitted she ran the errands but stated her back pain often limits her ability to sit, stand, walk, or engage in other activities.

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094 (6) morguefile scarletinaIn Massachusetts and across the United States, the same legal issue may not be litigated twice. In Wentworth v. Country Hen, a route delivery person apparently injured his arm and his neck while delivering eggs in June 2005. Although the worker finished his deliveries at the time, he did not return to work after the date of his harm. The following month, the employee sought § 34 total incapacity workers’ compensation benefits.

In response, the worker’s employer disputed liability, the man’s disability, the causal relationship to work, and other issues. Despite this, an administrative judge awarded the worker § 34 benefits for July 2005 through August 2005 and § 35 partial incapacity benefits beginning on August 10, 2005. Neither the worker nor the employer appealed the judge’s order.

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DSC_0284 morguefile larryfarrOverseeing jails and prisons can be mentally and physically difficult. Unfortunately, corrections officers in Massachusetts and elsewhere may be exposed to dangerous working conditions on a daily basis. In Marchand v. Department of Correction, a Massachusetts corrections officer was assaulted by an inmate in January 2008. As a result of the incident, the man suffered a compensable injury and received § 34 temporary total disability workers’ compensation benefits for six months and § 35 partial disability payments for five years.

In October 2010, the man’s employer requested a hearing in order to ascertain whether the officer was medically able to return to work. After determining the man was not able to return to work, the officer’s employment was terminated. Until the worker was terminated, he received assault pay benefits in addition to his workers’ compensation benefits. Such payments are designed to make up the difference between the workers’ compensation benefits received by an injured employee and his or her typical wages.

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DSC01130-B morguefile DodgertonSkillhauseAn appellate court will generally defer to the findings of fact made by an administrative judge in a workers’ compensation case.  In In Re Sosa’s Case, a man hurt his spine and left shoulder in an industrial accident in May 2007.  Following the incident, the man received § 34 temporary total incapacity workers’ compensation benefit payments through November 2007.  In January 2012, the worker again sought § 34 benefits related to the same accident.  In addition, the man asked an administrative judge to award him § 35 medical benefits.

Following a hearing, the judge stated the employee was not credible and denied the man’s workers’ compensation claim.   After that, the employee asked that a § 11 impartial medical examiner be appointed in the case.  Although the doctor stated the worker continued to be impaired by the 2007 industrial accident, the examiner said the man’s injury required no further treatment.  In addition, the neutral physician stated it was his opinion that the employee was capable of performing full-time work with restrictions.

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DSC03420-B3 morguefile DodgertonSkillhauseA Massachusetts employee who seeks to recover benefits for the aggravation of a pre-existing condition must establish that a workplace accident was a major cause of his or her injury.  In Aleman v. City of Boston, a worker with a history of back injuries hurt his right ankle when he tripped on uneven concrete at work in October 2008.  As a result, the man received § 34 temporary total incapacity workers’ compensation benefits through July 2009.  After that, the employee returned to work on a limited basis and received § 35 partial incapacity payments through October 2009.  The employee then began performing his full work duties.  The following month, the worker underwent an MRI and received two steroid injections in his back.  The employee did not return to work until his physician released him without restrictions in February 2010.

In July 2012, the employee apparently began suffering pain in his back and leg after he fell once again at work.  According to the worker’s doctor, the man’s pain likely resulted from an aggravation of his prior back injuries.  In addition, a medical examiner who evaluated the worker at his employer’s request stated the man’s July 2012 injury aggravated his earlier spinal harm.  A § 11A impartial doctor also found that the man’s workplace accident aggravated his prior lumbar injury.  The neutral medical examiner stated the worker was rendered totally disabled as a result.  A few months later, another physician offered testimony that the employee’s back and other pain was directly related to his 2012 injury.

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file0001973368596 morguefile ronniebAccording to research that was recently conducted by Cambridge, Massachusetts-based Workers Compensation Research Institute (“WCRI”), whether a worker fears losing his or her job following a workplace injury has a dramatic effect on both the employee’s outcome and an employer’s workers’ compensation costs.

As part of their study, WCRI conducted interviews with nearly 5,000 employees in 12 states who were injured at work in 2010 or 2011 and subsequently collected workers’ compensation payments. Researchers found that workers in Massachusetts and 11 other states were more likely to collect workers’ compensation benefits for a longer period of time if they feared being terminated after an on-the-job injury than individuals without such concerns. The same employees were also more likely to report difficulty accessing appropriate medical care and dissatisfaction with the health care provided to them. Researchers also claim that up to 33 percent of the employees surveyed feared being fired due to a workplace injury. In addition, workers who had a more trusting relationship with a supervisor were less likely to fear being terminated over an accident at work.

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OLD KEY-3 morguefile dodgertonskillhauseUnfortunately, hardworking individuals across Massachusetts are injured at work every day. Because of this, the Commonwealth’s “no fault” workers’ compensation law was established. Sometimes, employers and workers exploit this safety net designed to protect hurt workers by being dishonest.

For example, a 42-year-old Massachusetts jail worker recently admitted to committing workers’ compensation fraud and larceny. According to Attorney General Maura Healey, the Athol man claimed he was unable to work in order to continue collecting workers’ compensation benefit payments, even though he operated several car dealerships.

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DSC03565 morguefile dodgertonskillhauseIn Massachusetts, an injured worker’s average weekly wage for purposes of benefits may include money earned through certain concurrent employment. In Lubofsky v. Lowe’s Home Centers, Inc., a part-time home improvement store employee apparently hurt his neck while unloading items at work. At the time, the man worked three jobs, including a full-time position with a federal agency. As a result of his injury, the worker was unable to return to his position at the home improvement store. He was also forced to reduce his hours at his full-time job. The employee’s injury had no effect on his third job.

Following the accident, the man’s employer accepted liability for the worker’s injury. As a result of his lost earning capacity, the employee received benefits under § 35 of the Massachusetts workers’ compensation law. Next, the worker sought recalculation of his average weekly wage based on his full-time position. After the man’s initial request was denied, he filed an appeal. Prior to a hearing on the issue, an administrative law judge (“ALJ”) allowed the home improvement store to join a request to terminate the worker’s benefits.

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file000495818648 ariadnaIn In re Gayle’s Case, a Massachusetts worker appealed an administrative judge’s 2008 order denying his claim for workers’ compensation benefits under §§ 13 and 30. In the case, a number of medical experts apparently offered testimony regarding the employee’s physical condition during a workers’ compensation hearing. According to the worker, the judge inappropriately failed to examine his MRI records and instead relied upon a report that was prepared by a radiologist when making his decision.

Four years after his benefits were denied, the worker offered additional medical testimony based on the same MRI scans. The additional evidence indicated the worker suffered from a physical abnormality that was related to his workplace accident. Since the same injury claim was previously denied, the administrative judge refused to consider the case based on the doctrine of res judicata. In addition, the judge stated the evidence was not newly discovered. After that, the worker appealed his request to the Massachusetts Department of Industrial Accidents Reviewing Board.

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