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When an employee’s work-related medical condition grows worse, the insurer may contest the claim on the basis that the worsening is caused not by the original work injury, but by the employee’s growing older. The employee has the burden of proving that he or she should continue to receive benefits because the worsening of the condition is not caused by aging, but by the work injury.industrial-park-1372192-m[1]

An example is an employee’s pain growing more severe, requiring stronger doses of pain medication. Even when the pain, in the opinion of the examining physician, is out of proportion to any objective physiological findings, if the physician finds the employee to be credible, he or she may form an expert opinion that the employee can’t work based on that pain report.

However, the judge, in the decision awarding benefits, needs to make specific findings that the employee’s underlying work-related injury grew worse for reasons other than the employee’s growing older. The judge’s analysis is critical to a proper foundation for the award of benefits. Continue reading →

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Insurers and employers around the United States are attempting to hold the line against paying injured workers’ expenses for medical marijuana, even in states where medical marijuana is legal. They argue that they should not be required to pay for a substance that is illegal under federal law. This issue has not yet been decided by courts in Massachusetts, but legal developments in other states indicate it is only a matter of time.1-1223098-m[1]

court of appeals in New Mexico, in the case of Gregory Vialpando v Ben’s Automotive Services and Redwood Fire & Casualty, ordered an employer to reimburse an injured worker for the cost of his medical marijuana.

Vialpando had severe pain from a low back injury he incurred at work, and from the resulting failed surgeries. One doctor described him as suffering from “some of the most extremely high intensity, frequency and duration of pain, out of all of the thousands of patients I’ve treated within my seven years practicing medicine.” Vialpando was taking narcotic-based pain relievers and anti-depressant medications, but without relief. His treating physician recommended medical marijuana.

Continue reading →

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Courts, including the Reviewing Board that rules on appeals in Massachusetts workers’ compensation cases, are doing their best to update court services by allowing the use of electronic systems for accepting and storing court documents.

These do not always work perfectly.cell-phone-tower-3-129491-m[1]

An employee’s attorney may submit medical records or other documents to the court electronically and then be surprised at the hearing to find that the administrative judge (AJ) has not received the documents. The AJ may have arrived at a decision and denied benefits to the employee, without having reviewed the evidence the employee submitted. Continue reading →

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A workers’ compensation insurance carrier may argue that benefits should be denied to an injured worker if the worker had a pre-existing injury, or that the worker must show that the latest injury is the “major cause” of the worker’s current disability in order to receive benefits.

The claimant in one such case was a 28-year-old carpenter/laborer originally from the Dominican Republic. He has difficulty communicating in English.arm-in-sling-618476-m[1]

On October 26, 2009, while working on a roof and maneuvering a sheet of plywood, a gust of wind yanked the board away from him, causing pain in his shoulder. The same day, he hit his finger with a hammer. He went to Bay State Medical Center, where he was treated for the injured finger and a dislocated shoulder. Continue reading →

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old-willow-trees-1425964-m[1]The Appeals Court of Massachusetts, in Mohammed Benabed’s Case, 85 Mass. App. Ct., 1111 (April 4, 2014) upheld a decision by an administrative law judge (ALJ) to permit an employee to submit additional medical evidence in support of a workers’ compensation claim. The ALJ had justified her decision that the employee’s medical condition was complex and that the additional evidence was necessary both to present an accurate picture of his work-related injuries and to assess his diminished earning capacity.

The additional testimony  was that of a Dr. Zarin, whose preliminary opinion was that the employee’s medical condition was complex and that the court needed additional medical evidence to render its decision.  Dr. Zarin then assessed the employee’s condition using the additional medical evidence.

In his report, Dr. Zarin  verified that the employee had suffered an acute injury at work. He also inferred from the additional medical evidence that the employee’s workplace injury was in addition to his pre-existing condition of posttraumatic arthritis. The arthritis resulted from damage to his leg and knee from being tortured in his native country. Continue reading →

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Employers may try to save money on their insurance premiums by classifying their workers as independent contractors, not eligible for workers’ compensation benefits. If a worker is injured or sickened at work and files a claim for workers’ compensation benefits, the employer’s attempt to economize may backfire when the insurance company pays the benefits to the employee and pursues the employer for the added expense.hand-with-clipboard-609113-m[1]

In a decision (Case No. 13-P-1677, entered June 18, 2014),  involving a drywall contractor, Universal Drywall, LLC, the Appeals Court of Massachusetts affirmed an award of damages to Travelers Property Casualty Company of America, the company’s workers’ compensation insurance carrier, since Universal had improperly classified its workers as independent contractors when they were actually employees within the meaning of the Workers’ Compensation Act, Mass. G.L. ch. 152.

The insurance premium Travelers charged to Universal was based on the number of Universal’s workers who were eligible for workers’ compensation benefits. Since Universal classified most of its employees as independent contractors, not eligible for benefits, the premium it paid to Travelers was reduced because most of Universal’s workers were not covered. Continue reading →

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A business owner with an eye on the bottom line may attempt to pass along the costs of doing business to either customers or employees. Customers won’t appreciate higher costs, however, and in the current economy, a business owner may feel safer passing business expenses on to employees, in the form of lower wages or deductions.keeping-it-together-596144-m[1]

In a recent case, multiple plaintiffs filed a class action lawsuit claiming that their employer, 3PD, Inc., misclassified them as independent contractors and forced them to pay for many of the company’s costs of doing business by making improper deductions from their pay.

The workers sued under the Massachusetts Wage Act, Mass. Gen. Laws ch. 149, sections 148 and 150 (Massachusetts independent contractor statute). One of the questionable deductions was the company’s premiums for its workers’ compensation insurance. Continue reading →

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A correctional officer works in a hazardous environment. Work hours are spent, not necessarily around dangerous chemicals or machines, but with prison or jail inmates, who can sometimes be dangerous people.barbed-wire-1390182-m[1]

A correctional officer injured at work is entitled not only to workers’ compensation, but also to additional benefits, such as assault pay, similar in concept to the combat pay awarded to members of the military for serving in a battle zone. Assault pay is available to correctional officers  in addition to workers’ compensation benefits, and the two schemes are related benefit programs.

In a case, William Benson vs. Commonwealth, No. 13-P-1134, decided in May 2014  by the Appeals Court of Massachusetts, an injured officer disputed the lower court’s calculation of his separate benefit payments for assault pay, which were paid in addition to his benefits for workers’ compensation. Continue reading →

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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 →