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welding-927175-mRecently, the U.S. Department of Labor’s Occupational Safety and Health Administration cited a company in the Midwest for failing to assess worker exposure to respirable crystalline silica dust, failing to give workers appropriate eye protection and improper ladder caging. This hazard can affect workers at iron foundries in Massachusetts. The danger of inhaling silica particles is developing a disabling respiratory disease like silicosis.

OSHA started inspecting last fall and assessed proposed penalties of $50,600. Back in 2012, an inspection at a different plant for the same company resulted in 28 violations and more than $133,000 in penalties.

OSHA has recently proposed a new silica standard that would be more protective of workers. It believes this will save 700 lives every year and prevent 1600 new silicosis cases. Silicosis occurs naturally and is the main part of sand. Continue reading →

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lots-of-files-2-1370555-mIn a recent Massachusetts reviewing board decision (Douglas Cooks v. Starbucks), a worker appealed from an administrative judge’s denial of total incapacity benefits and award of continuing partial capacity benefits. The employee argued the judge should have granted his motion to admit additional medical records under G. L. c. 152, § 11A (2). The rule in that section provides that a physician is not allowed to offer additional medical reports or depositions by right. Rather an administrative judge can authorize submission of additional medical testimony when the judge finds that this testimony is required because medical issues are complex or the impartial medical examiner’s report is inadequate.

The worker in this case had hurt his left Achilles tendon while working in 2009. The insurer accepted the case. In July of 2011, the worked filed a claim for disfigurement benefits. At a 2012 conference, the judge permitted the worker to add a claim for loss of function benefits, denied his motion to join a claim for section 14(1) benefits, and allowed the insurer to join a complain to modify or discontinue his § 34 benefits.

The judge ordered the insurer to pay his section 36 claim. He denied the insurer’s request to modify or discontinue weekly benefits. The insurer appealed.

An orthopedic surgeon, Dr. Kenny, examined the worker. He diagnosed left Achilles tendon rupture, status post Achilles tendon repair, bilateral lower extremity deep venous thrombosis, and pulmonary embolism. He also offered the opinion that work had caused the worker’s diagnosed problems.

The judge accepted his diagnoses and his opinion about a causal relationship. The reviewing board noted that the judge wrongly observed that the finding of deep venous thrombosis and pulmonary embolism was the first time a judge had been presented with this diagnosis for the worker’s problems. In fact, the worker had submitted reports from a Dr. Clermont who put forth both diagnoses.

Irrespective of his incorrect observation, the judge accepted the thrombosis and embolism causation opinion. Later, at deposition, Dr. Kenny testified that he probably didn’t have the expertise to provide a definitive opinion on continuing disability based on these problems. Accordingly, the worker made a motion to admit additional medical evidence. He offered a medical report from Dr. Douglas.

The reviewing board found that the judge didn’t err in denying this motion. The rule is that where an impartial examiner does no offer an explicit opinion on disability, a judge can ask the employee to submit an offer of proof of disability as a condition to allow him to present additional medical evidence. A judge can also deny a motion on the basis that the claimant does not offer of proof of disability.

The medical report in support didn’t offer an opinion on the worker’s disability due to his deep venous thrombosis or pulmonary embolism. The reviewing board noted that the worker admitted at a hearing that he wasn’t taking medication for these two conditions, nor had any doctor restricted his activities based on those conditions. The reviewing board explained that a worker has the burden of proof for every aspect of his claim. Since there was no relevant proffered evidence of disability based on those two diagnoses, it was appropriate for the judge to deny his motion.

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. 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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mri-head-scan-370098-m-2In Massachusetts, workers’ compensation benefits that are continued over a period of many years can be subject to an insurer’s request for discontinuation if the insurer believes there is no longer a causal connection between medical symptoms and the original work injury.

In a recent case a worker was kicked in the temple of her head while working as a licensed practical nurse at a state hospital. In 1984, an impartial medical examiner concluded the event caused a contusion in her brain, post-concussion symptoms and a depressive and hostile reaction resulting in social withdrawal. The neurologist also concluded she doesn’t have capacity for performance of employment duties. Her treating psychiatrist agreed and found her incapacity was total and permanent.

She filed for workers’ compensation. Based on the medical providers’ opinions that she was totally and permanently incapacitated, the commissioner of the Industrial Accidents Board adjudicated her as such under G. L. c. 152, § 34A. It awarded her reasonable and necessary medical and hospital benefits under G. L. c. 152, §§ 13 and 30.

Years later, her employer, the Commonwealth asked for a discontinuance of her statutory benefits on the grounds that they were no longer causally related to the earlier accident. This request was initially denied. An administrative judge conducted an appeal by de novo hearing. Exhibits included the opinions of an impartial medical examiner plus transcripts of two other physicians’ testimony. Continue reading →

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bar-1171482-mIn a 2012 case a worker appealed from the Massachusetts reviewing board decision, as did his employer, the City of Worcester. The board had affirmed an award of permanent and total incapacity benefits and reversed an earlier decision that allowed the city to recoup disability benefits paid to the worker while he was engaged in a court-ordered alcohol abuse program

The worker had been a stonemason with the city when he badly hurt his back. He also developed clinical depression and anxiety. The worker filed for temporary total incapacity benefits and was awarded partial incapacity benefits. He filed for additional compensation and reached an agreement with the city about the new filing.

In 2008, the worker filed for permanent and total incapacity benefits. The judge ordered the city to pay him partial incapacity benefits, but also ordered him to repay the city for thousands of dollars worth of benefits that the city had paid him while he was in jail for a federal offense for nearly three months. Continue reading →

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explosion-683283-m-2Spring is officially here and fertilizer is being used regularly. The Occupational Safety and Health Administration (OSHA) recently partnered with the Agricultural Retailers Association and the Fertilizer Institute in order to get retailers, distributors, producers, and others in the fertilizer industry to make sure they are safely storing and handling ammonium nitrate. Safe handling of any potentially explosive material is of critical importance to employee safety.

OSHA defines as “explosive” any chemical compound, mixture or device that has a primary or common purpose of functioning by explosion unless otherwise classified by the U.S. Department of Transportation. It includes dynamite powder, squibs, small arms ammunition, smokeless propellant and more. “Commercial explosives” are those used for commercial and industrial operations.

Last April there was an ammonium nitrate explosion in West Texas that claimed 15 lives, 12 of which were those of emergency response personnel. United States Geological Survey seismographs registered the factory explosion as having the magnitude of a 2.1 earthquake. In that case, OSHA cited owners of a fertilizer company with 24 serious safety violations for exposing workers to the dangers of chemical burns and inhalation hazards. Continue reading →

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building-1431369-mIn a recent Massachusetts Appeals Court case, a man suffered a work injury in 2003. His company didn’t have workers’ compensation insurance because its insurer had cancelled the policy. The man filed a Superior Court action against the company under G. L. c. 152, §§ 66 and 67. The man also filed a claim with the Fund at the Department of Industrial Accidents. He received compensation and the insurer that had cancelled the policy and a subsequent insurer of his employer became parties to the case.

The case was settled in 2008 and the old insurer paid $20,000 and the new insurer paid $6500. That summer the Fund intervened in the worker’s lawsuit in order to assert a claim against the employer to obtain reimbursement for the payments it had made to the worker. In 2010, a trial was held of the worker’s claims. The Fund’s claims were still left to be determined.

The jury awarded the worker $70,702.64. This sum was reduced by almost $29,000 to offset certain payments made by the company to the worker after the accident. No additional offsets were permitted for payments made to the worker by the Fund and the insurers. Continue reading →

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timber-factory-1434765-1-mLast year, a machine helper (not in Massachusetts) was killed after entering a large wire mesh manufacturing machine in order to grab a metal bar that had fallen. He was hit by a part of the machine that fed wire into the welding area. A light curtain that should have automatically switched off the machine had become disabled. If his employers had checked to make sure the machine’s guards were working, as required by the Occupational Safety and Health Administration (OSHA), he wouldn’t have been killed.

Recently, OSHA cited the manufacturer for 8 “per-instance” willful violations and 22 serious citations. The willful the failure to guard the machine at issue plus 3 other large wire mesh machines. Several machines were not properly shut down and the employer had not made sure that hazardous energy sources were prevented from harming employees, many of whom were not native English speakers and who worked extremely long shifts of 12 hours a day, 7 days a week. The 22 serious violations included a hodge-podge of dangerous conditions, including broken pallets that presented a trip and fall hazard, electrical outlets left such that they could shock workers, a sink clogged with maggots in standing water.

The penalties proposed for the willful violations totaled $697,700. OSHA has created a Severe Violator Enforcement Program which tries to improve employers that display indifference to their OSHA obligations through repeated or willful violations.

Continue reading →

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Recently a construction company in another state was cited by the U.S. Department of Labor’s Occupational Safety and Health Administration (OSHA) for three safety violations. A 35-year-old maintenance worker for a construction company was killed after being hit by a front-end loader and pushed against a semitrailer. The administrator for OSHA in that location noted that “struck-by” hazards lead the types of injury for workers in that area. Although this particular injury did not occur in Massachusetts, these tragic injuries happen all over the country.

The construction company in that case was issued two serious citations. As explained in other posts, “serious” citations are those in which a substantial possibility of death or serious physical harm existed from a danger that an employer knew or should have known about. The first citation was for operating a loader, the safety features of which had not been appropriately checked. The second was for failing to have someone adequately trained to offer the victim first aid given that they weren’t working near a medical treatment facility.

OSHA proposed a $14,000 fine. It also alerted the company to hazards that showed workers were exposed to crushing based on working around front-end loaders. Front-end loaders are machines with a wide bucket situated at the end of two booms used on construction sites to hold heavy materials in place or scoop material to be dumped someplace else. Continue reading →

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ambulance-1334533-m-3Massachusetts’ workers’ compensation cases can wind up being lengthy processes. At the first hearing before an administrative law judge, the judge listens to both sides and reviews the parties’ documents, but does not listen to testimony. A temporary order is issued. If the claim is denied, the employee can appeal.

Usually an impartial examiner appointed by the DIA will examine the hurt worker. The examiner will file a report with DIA and both parties. Usually the judge will rely on this report. However, if the judge finds the report is not sufficient, he or she may allow additional medical testimony.

In Kujtime Uka v. Westwood Lodge Hospital, the Massachusetts reviewing board examined the appeal of an employee who was beaten around the head and face by patients. The employee was awarded a closed period of partial incapacity benefits for physical injuries, but was denied claims for psychological injuries. At issue in the appeal was the judge’s failure to cite additional medical evidence that the employee claimed was submitted. Continue reading →

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chemical-plant-explosion-1247058-mRecently a New England wood pellet company experienced a combustible wood dust explosion and fire. A worker was injured and the building was partly destroyed. The wood dust was ignited in the production room, but moved to a retention bin and resulted in an explosion.

The U.S. Department of Labor’s Occupational Safety and Health Administration (OSHA) cited the wood pellet company. A spokesperson claimed that the potential for death was real, but preventable. There weren’t enough safeguards to stop the initial fire from happening and spreading. It spread to other equipment and elsewhere in the plant. OSHA has specific standards to prevent this type of fire and explosion as does the National Fire Protection Association.

OSHA investigated and learned that workers at the plant faced hazards such as wood dust explosions, rapid combustion, deflagration, and other fire hazards. There were insufficient preventive measures in the equipment and processing system. The retention bin did not have spark detection or explosion suppression or devices to isolate or vent an explosion. Dust collection systems and barriers didn’t minimize fire sources. There was an opening in a fire wall that would allow a fireball to come into the chip room and spread. Continue reading →