Published on:

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 →

Published on:

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 →

Published on:

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 →

Published on:

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 →

Published on:

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 →

Published on:

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 →

Published on:

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 →

Published on:

An employee of the Massachusetts Institute of Technology (MIT) was denied benefits under the workers’ compensation statute, specifically G.L. ch 152, sections 13, 30, and 34, for temporary total incapacity resulting from an injury he suffered while commuting home from work on his motor scooter.pretty-in-red-3-416960-m[1]

The administrative law judge (ALJ) cited the ‘going and coming rule’ to justify the decision, which was upheld by the Department of Industrial Accidents (DIA). The rule usually exempts employers from liability for injuries to an employee while traveling to or from work.

The Appeals Court of Massachusetts in June 2014, affirmed, in Daniel J. Kelbe’s Case, No. 12-P-1776, while acknowledging that there are exceptions to the rule, such as the one that the claimant cited, that the street where he was injured was controlled by his employer. Continue reading →

Published on:

autumn-trails-1439723-m[1]A Massachusetts Appeals Court ruled that the widow of an injured worker was entitled to benefits under the workers’ compensation laws following her husband’s suicide due to depression caused by an injury to his right, dominant hand on his job as a drywall taper with New England Finish Systems of Salem, New Hampshire. The employee  was unable to do routine tasks around his home, pursue sports or hobbies, or have any hope of being able to work again. He had limited education and believed he needed full use of both hands to return to drywall work.

The court affirmed the finding of the administrative law judge (ALJ) to order payment of benefits because the employee’s suicide resulted from his injury-related depression, and there was a direct, unbroken causal relationship between the  injury and the employee’s despair and his tragic taking of his own life.

The Appeals Court also agreed with the ALJ that Dr. Martin Kelly, the plaintiff’s medical expert, presented compelling testimony that the employee’s suicide did not result from psychological problems that he had suffered before the accident, as had been claimed by the insurer, Liberty Mutual Insurance Company, to justify discontinuing his benefits on that basis, leaving the employee’s wife and three children with no financial resources less than a year before he killed himself. Continue reading →

Published on:

sidewalk-skatin-222082-mIn a recent Massachusetts Reviewing Board decision, the Board affirmed a decision denying a worker’s claim for payment of medical benefits. The 46-year-old worker had wanted a total right hip replacement among other medical care for his injuries. He worked as a merchandiser, setting up displays and moving products by lifting and carrying. He started the job in 2003, and he weighed 245 pounds at that time. By the time he left he was 280 pounds. He had played football in high school and street hockey for fifteen years of adulthood. In 2002, he hurt his right knee and needed arthroscopic surgery. He didn’t play street hockey after his surgery.

The worker claimed that in 2009, he suffered right hip pain related to his job. He sought treatment with a doctor who referred him to an orthopedic surgeon. The surgeon administered epidural steroid shots over the year and experienced some relief. The worker didn’t tell the doctors that his hip pain was due to his job. One doctor diagnosed his condition as bilateral hip dysplasia, degenerative changes, and arthritis.

An impartial physician agreed with the diagnosis and found the worker suffered bilateral degenerative arthritis of the hips, arising from his congenital hip dysplasia. The worker asked for payment of medical treatment and was denied. He appealed. The administrative law judge (ALJ) accepted the insurer’s offer of proof that the worker had a combination injury. He took lay evidence and a permitted the deposition of one of the treating doctors. The parties submitted extra evidence. Continue reading →