Massachusetts Workers' Compensation Lawyer Blawg
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Loose ChangeA Massachusetts workers’ compensation award must adequately reveal the evidentiary basis and analysis on which it was based. In LaValley v. Republic Parking, Board No. 016230-11, a woman who was employed as a money counter apparently developed nerve compression and carpal tunnel syndrome as a result of the repetitive movements she made at work. After the medical treatment the worker initially received failed to provide her with relief, her physician ordered her to work part-time and refrain from lifting objects weighing more than ten pounds. He also recommended that the employee undergo bilateral carpal tunnel surgery. Although the worker left her position as a money counter in June 2011 in order to undergo surgery, the operation was not performed due to payment issues. The employee never resumed working.

Almost one year after she stopped working, the employee was examined by an impartial doctor pursuant to § 11A of the Massachusetts workers’ compensation law. At a hearing over the worker’s request for § 35 partial incapacity and other workers’ compensation benefits, an administrative judge admitted additional medical evidence due to the complex nature of her repetitive stress injury.  Following the hearing, the judge stated he credited the additional medical testimony offered.

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Stethoscope 3 morguefile dodgertonskillhausIn Massachusetts, an employee may receive total incapacity workers’ compensation benefits despite an adverse ruling if an employer admits to liability for the individual’s harm. In McCarthy v. Peabody Properties, Inc., a Massachusetts woman injured her right knee when she fell while performing her duties as a construction supervisor in 2002. About two months later, the woman underwent arthroscopic surgery on her knee. Sadly, the worker suffered permanent throat injury from the intubation that was conducted as part of her surgical procedure. In addition, the employee apparently underwent a second surgery on the same knee in June 2003. During the second surgical procedure, the anesthesiologist allegedly caused her to endure permanent nerve damage when he incorrectly administered a spinal anesthesia. As a result, the employee suffered pain and numbness in her left leg. In addition, the woman underwent right knee replacement surgery several years later.

The woman’s employer accepted responsibility for the worker’s knee injury and paid her §36 and §34A workers’ compensation benefits. The employer later raised a §1(7A) affirmative defense arguing that the woman’s disability was caused by her pre-existing osteoarthritis that was aggravated by her work injury. The Department of Industrial Accidents Reviewing Board eventually ruled that the woman was not entitled to recover benefits because her work injury was not a major cause of her disability.

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949108_untitled sxchu username kleomiaThree roofing workers who were apparently employed by a Beverly, Massachusetts home improvement company were reportedly hospitalized after falling two stories. According to inspectors from the United States Department of Labor’s Occupational Safety and Health Administration (“OSHA”), the employees were working on an unsafe scaffolding platform that could not support their combined weight at the time of the accident. Sadly, the platform used was reportedly marked “not for scaffold use.”

Following the accident, the workers were apparently transported to a local emergency room for treatment. Unfortunately, the roofing employees allegedly suffered a variety of serious injuries, including broken bones, eye harm, a punctured lung, and spinal cord injuries.

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1343419_baby_shoes sxchu websiteOn April 1, the Massachusetts Domestic Workers Bill of Rights took effect. The law that was signed by Governor Deval Patrick last July was designed to improve the working conditions for domestic employees across the Commonwealth. Under the guidelines established by the new law, employers must provide domestic workers with a written contract, maternity leave, and notification regarding termination. In addition, employees must receive meal and rest breaks, parental leave, and sick time. Workers protected by the law include individuals who provide in-home service,s such as housekeeping, cooking, and companionship. State-regulated staffing agencies and individuals who employ casual babysitters are exempt from the provisions of the new law.

According to the National Domestic Workers Alliance, the newly implemented Massachusetts law was needed because domestic employees have historically been excluded from both state and federal labor laws. In addition, such workers typically endure low pay, few benefits, and long hours. The isolation that often accompanies domestic work can place employees at risk of being mistreated, discriminated against, and sexually harassed. Domestic workers in Massachusetts and across the United States may also face unsafe working conditions that place them at risk of serious injury.

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611693 morguefile alvimannIf drivers for ride-sharing services such as Lyft Inc. and Uber Technologies Inc. are successful in ongoing court challenges to their independent contractor status, the companies may be on the hook for workers’ compensation insurance premiums in Massachusetts and across the country. In two separate cases filed in California in 2013, drivers claim the ride-sharing companies illegally shifted labor costs onto workers by inaccurately labeling them independent contractors.

As a result of the lawsuits, the ride-sharing companies may need to reevaluate their business models in order to provide workers with increased automobile insurance coverage and fuel costs. In addition, the businesses will be responsible for providing unemployment insurance and job-related accident injury protections if the drivers prevail. Since an employer may not charge employees for workers’ compensation premiums, the associated costs would necessarily be borne by the ride-sharing companies.

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file00073412185 morguefile username ronniebThe United States Department of Labor’s Occupational Safety and Health Administration (“OSHA”) has filed a complaint with the Occupational Safety and Health Review Commission regarding a shipping company that operates 170 freight terminals across the country. According to the complaint, a number of OSHA inspections revealed that the company failed to properly maintain forklifts at 11 shipping terminals in nine states, including Massachusetts.

OSHA claims that inspections revealed the company failed to maintain its forklift equipment according to established safety standards since at least 2006. As a result, workers risk being struck, crushed, or otherwise injured by the equipment. In its complaint, OSHA has asked the Review Commission to order the unsafe and defective machines to be removed from service.

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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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