In April, the 62 Massachusetts employees who were killed on the job during the preceding 16 months were recognized as part of an annual Workers’ Memorial Day. Each year, Workers’ Memorial Day is observed around the anniversary of the date that the nation’s Occupational Safety and Health Act of 1970 was passed. According to the Executive Director of the National Council for Occupational Safety and Health (“COSH”), Mary Vogel, most of the work-related fatalities that occurred throughout the Commonwealth last year were preventable. Vogel stated proper safety precautions and procedures are vital components for avoiding tragic workplace deaths in Massachusetts and nationwide.
In order to collect workers’ compensation benefits in Massachusetts, a workplace incident must be the major cause of an employee’s medical symptoms. In Opanasets v. Suffolk County Sheriff’s Department, a 39-year-old corrections officer apparently began to experience high blood pressure, headaches, and fatigue after inmates began fighting and exhibiting other violent behavior in their cells. As a result, the worker asked to be placed on light duty in a position that involved no contact with inmates. Although his employer denied the correctional officer’s request, the employer instead approved a temporary medical leave of absence under the Family and Medical Leave Act. Following the man’s three-month leave of absence, he sought workers’ compensation benefits for the period during which he was absent from work.
A Brockton, Massachusetts roofing contractor is reportedly facing $72,800 in proposed fines in connection with fall hazards at a North Smithfield, Rhode Island job site. According to the United States Department of Labor’s Occupational Safety and Health Administration (“OSHA”), safety inspectors uncovered the danger in January while heading back to their Providence office following another job site inspection in the same area. From that location, the inspectors purportedly witnessed two roofers working from an elevated scaffold without protective equipment. As a result, the two OSHA inspectors apparently initiated an immediate and unplanned inspection of the work site.
After ordering the roofers off a ladder-jack scaffold, the OSHA inspectors determined that the scaffold was not equipped with guard rails. In addition, the employees were reportedly working at an elevation of about 16 feet without any equipment designed to keep them from falling, and their employer apparently failed to require the roofers to use an access ladder in order to reach the scaffolding platform. OSHA’s Area Director Patrick Griffin stated the situation constituted a “clear-and-present danger” to the workers, who could have been seriously hurt, disabled, or killed as a result of the alleged violations. According to Griffin, the roofing contractor should not have ignored his legal duty to protect the workers from injury.
A Massachusetts employee may not recover workers’ compensation benefits from the Workers’ Compensation Trust Fund (“WCTF”) if the worker is entitled to receive benefit payments in another jurisdiction. In Cynthia L. Merlini v. Consulate General of Canada, a Massachusetts administrative assistant was injured while working in the Boston office of a foreign consulate. At the time, the foreign government did not carry a workers’ compensation policy. Following a hearing before an administrative judge, the WCTF was ordered to pay the worker § 34 temporary and permanent total incapacity benefits. In response to the judge’s decision, the WCTF filed an appeal with the Department of Industrial Accidents Reviewing Board.
On appeal, the Board stated Chapter 152 of the Massachusetts workers’ compensation law only requires the WCTF to pay a hurt employee benefits if the worker is uninsured in violation of the law, the employer is subject to the personal jurisdiction of the Commonwealth, and the employee is not entitled to recover benefits in another jurisdiction. In addition, the Board found that the judge failed to make findings of fact regarding the Commonwealth’s personal jurisdiction over the employer under § 65(2)(e) and the administrative assistant’s rights under the foreign country’s law. Following recommittal, the judge again ordered the WCTF to pay the employee benefits. In response, the WCTF filed a second appeal.
The Massachusetts workers’ compensation system was established to provide “no fault” accident benefits to employees who are hurt on the job. Each year, over 3,000 employees are injured at work across the Commonwealth. Unfortunately, many hurt workers suffer debilitating and disfiguring scars due to workplace explosions, chemical burns, and other safety hazards.
Since 1991, a Massachusetts employee may not receive compensation for a work-related disfiguring scar unless it affects the worker’s “face, neck, or hands.” As a result, a worker who sustains arm, leg, or torso scarring will not typically receive workers’ compensation benefits for their permanent disfigurement. A bill that was recently filed with the Massachusetts Senate could change this restriction.
The United States Department of Labor’s Occupational Safety and Health Administration (“OSHA”) has proposed more than $41,000 in fines against a New Jersey-based painting contractor over allegedly exposing workers at a Fall River, Massachusetts work site to both fall and lead hazards. The proposed fines stem from an October 2014 inspection at the Charles M. Braga Jr. Memorial Bridge spanning the Taunton River. The inspection occurred after the Massachusetts Department of Labor Standard’s (“DLS”) noted high levels of lead in the blood stream of many of the painting company’s workers.
According to preliminary data recently compiled by Cambridge, Massachusetts-based Workers Compensation Research Institute (“WCRI”), states that have a high number of employees using capitated health plans may see an increase in medical expenses shifting to workers’ compensation insurance. A capitated health plan is typically used by a managed care organization, such as an HMO or ACO, in an effort to control costs. Under such a plan, a doctor is generally paid a fixed amount of money per patient enrolled, regardless of the number of treatment visits each patient schedules. When a physician signs a capitation contract, the medical provider agrees to provide a specific list of services to each assigned patient in exchange for the agreed-upon fee. In other types of health care plans, a doctor is normally paid on a fee-for-service basis.
Two Milford, Massachusetts business owners were reportedly charged with intentionally misreporting their total payroll and workforce in an effort to avoid paying their fair share of workers’ compensation insurance premiums. According to Attorney General Maura Healey, the two individuals operated three roofing companies that were formed between 2008 and 2014. The business owners allegedly avoided paying over $600,000 in insurance premiums due to their intentional underreporting of the risks associated with each worker’s job duties. The owners’ fraud purportedly placed the workers’ compensation insurers that provided their businesses with coverage at an undisclosed higher risk for paying injury benefits.
Combined, the two business owners were indicted on seven counts of workers’ compensation fraud and four counts of larceny. The indictments were handed down by a Worcester grand jury after the Insurance Fraud Bureau of Massachusetts referred the cases to Attorney General Healy’s office. Healy stated insurance fraud such as that purportedly committed by the 31-year-old man and 29-year-old woman not only undermines the integrity of the Commonwealth’s workers’ compensation system but also places an undue burden on honest employers.
In Massachusetts, an employee may receive workers’ compensation benefits for a pre-existing condition such as post-traumatic stress disorder (“PTSD”) if his or her employer causally exacerbated the employee’s condition. In Gail Wicklow v. Fresenius Medical Care Holdings, Inc., Board No. 035561-09, a registered nurse who previously suffered from PTSD was employed by a medical company that provided dialysis services to patients. About two years after the nurse was hired, a series of events that were not work-related apparently triggered her PTSD. As a result, she was institutionalized on three separate occasions over a period of about three years. Following each PTSD episode, the nurse returned to work full-time.
A 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.