Massachusetts Workers' Compensation Lawyer Blawg

Sometimes, a workplace injury can aggravate a worker’s underlying harm. That was apparently the situation in Robert Amaral v. Department of Youth Services, Board No. 008290-09. In the case, a man who primarily performed administrative duties for his employer was also called upon to physically restrain male youths when necessary. In April 2009, the employee was injured while attempting to break up an altercation between two teenagers. As a result, the worker suffered shoulder and lower back injuries, which both required surgery.

Prior to a workers’ compensation benefits hearing, the man was examined by an impartial physician pursuant to the provisions included in § 11A. The impartial doctor and the two surgeons who operated on the man were deposed in advance of the administrative hearing. In addition, the injured worker underwent an examination by a fourth physician at the request of his employer’s self-insurer. The fourth doctor’s report was also entered into evidence.

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Nurse Breaks Her Ankle At Work

A workers’ compensation insurance company may ask a judge to reduce workers’ compensation benefits based on the salary the worker might be able to earn if he or she learned new skills. The employee in the case at Board No. 024722-04, Mary Jane Doonan, a registered nurse since 1964, worked her entire career in patient care, primarily in nursing homes. Although she also worked in hospitals and as a charge nurse, she had no experience or skills with computers. She also had her own small business teaching tap dance classes a few hours a week. On August 8, 2004, Ms. Doonan was working at a nursing home operated by Pointe Group Health Care when she fractured her right ankle. Her ankle improved, but she developed swelling and pain in her left knee. She did not return to her nursing job, but on September 22, 2004, she returned to teaching dance, which she could do while sitting.

Workers Compensation Judge Rules That Employee Could Continue In Nursing

In the first of a number of hearing decisions, the judge found Ms. Doonan had recovered from her ankle fracture, but her left knee problems, which the judge found to be causally related to her industrial injury, restricted her to sedentary activities. The judge awarded § 34 benefits, based on an average weekly wage of $952, from the date of injury until September 22, 2004, and § 35 benefits thereafter, assigning two different earning capacities based on the same § 11A opinion. Without expert vocational testimony, she found Ms. Doonan could work as an office nurse or file reviewer. After this decision, there was some procedural back-and-forth to resolve the inconsistency created by using the impartial disability opinion to support both earning capacity assessments.

The remainder of the litigation revolved around Ms. Doonan’s earning capacity. In the recommittal decision, the judge took no additional evidence and again found that Ms. Doonan could return to a nursing position, including “office nurse, nurse supervisor, or file reviewer.” She assigned a $640 weekly earning capacity based on a finding that Ms. Doonan could perform part-time light or sedentary work for 32 hours per week, at the rate of $20 per hour. Accordingly, she awarded § 35 benefits from September 22, 2004, and continuing, at the rate of $187.20 per week. The case was summarily affirmed by the Reviewing Board, and Ms. Doonan appealed to the Appeals Court. Continue reading →

A Massachusetts employee who accepts a lump sum workers’ compensation settlement payment relinquishes his or her right to appeal a related benefits award. In Haris Duarte v. Travelers Insurance Company and Workers Compensation Trust Fund, Board Nos. 028934-06 & 037009-10, a materials handler hurt his left arm at work in September 2006. Following the injury, the man received workers’ compensation benefits for a closed period. At the time, the worker’s average weekly wage was nearly $400.

Between 2006 and 2010, the worker changed employers multiple times. Although he did not suffer another workplace accident, the man claimed that his prior injury hurt him often. About one month after the man began working as a general laborer at a stable, he again sought medical care for left arm pain. In December 2010, the employee did not return to work as a result of his severe shoulder and neck pain. At the time, his average weekly wage was about $265.

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In Massachusetts, workers’ compensation fraud reportedly costs insurers over $100 million per year. According to the Massachusetts Insurance Fraud Bureau (“IFB”), too many employers lie about the number of workers they employ or misclassify employees in an effort to reduce their required workers’ compensation premiums. The IFB claims that such employers are normally quick to acknowledge an employee relationship exists if a misclassified worker sustains a job-related injury.

A recent Massachusetts Department of Industrial Accidents study found that up to one-quarter of a million workers are misclassified across the Commonwealth. In addition, about 13 percent of employers in Massachusetts misclassify some employees. Over the course of 2013, the Department of Industrial Accidents investigated about 6,000 businesses over their workers’ compensation insurance coverage. As a result, more than one-third of the companies were ordered to stop work, and about $1.3 million in fines were issued. In addition, at least 6,000 Massachusetts workers were added to the businesses’ workers’ compensation insurance policies.

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When reviewing a workers’ compensation case, an administrative law judge (“ALJ”) may adopt the opinion of any medical expert. In Tracy v. City of Pittsfield, Board No. 031069-09, a 52-year-old man was employed as a laborer and heavy equipment operator for the City of Pittsfield. The man apparently injured his back while operating a piece of road construction equipment in 2008.  About one year later, the employee was again hurt at work. In September 2012, the injured worker underwent back fusion surgery.

About one month after his surgery, a neutral physician examined the man pursuant to the provisions included in § 11A of the Massachusetts workers’ compensation law. The ALJ, however, ruled that the case was medically complex and the neutral doctor’s report was inadequate. After that, the man’s employer admitted to liability for the 2009 workplace injury but refused to accept liability for the laborer’s surgery and other related medical issues. The employer also claimed that the worker’s harm resulted from a pre-existing condition.

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Depression May Be Caused By Physical Injury

The Reviewing Board of the Massachusetts Department of Industrial Accidents reversed a denial after the hearing judge had denied the employee’s claim for depression after a work-related injury to his right arm and shoulder. The Board recommitted the claim and reminded the hearing judge to apply the correct standard to decide whether the physical injury was the major cause of the psychiatric injury.

Donald Conners was injured on the job on June 7, 2007. The insurer, Liberty Mutual Insurance Company, and the employer, Bay State Insulation, accepted the employee’s right shoulder injury and paid § 34 benefits until their statutory exhaustion. Following a conference before Judge Frederick Levine on September 13, 2010, Liberty/Baystate was ordered to pay the employee partial incapacity compensation and medical benefits from June 4, 2010, to date and continuing. The judge also denied Liberty/Baystate’s discontinuance complaint.

Judge Denies Claim, Employee Appeals

On May 5, 2011, the employee moved to join his claim for a psychiatric injury allegedly resulting from his accepted 2007 industrial accident. The judge allowed the motion. In her decision, the judge credited the employee’s testimony that he experienced limited relief from his shoulder surgeries, had constant pain and limited use of his right arm and shoulder, and could not “raise his right arm above elbow height.” The judge adopted the medical opinion of the impartial medical examiner, Dr. Richard Alemian, that as a result of his work-related right shoulder injury, the employee suffered from a dislocation of his right shoulder with a corresponding rotator cuff tear, two failed surgeries, a five-pound right arm lifting restriction, and an inability to perform overhead work.

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When a workers’ compensation claimant does not provide enough evidence to calculate his or her average weekly wage based on the statutory methods, an Administrative Law Judge (“ALJ”) may use a common sense approach. In William Stone v. All Seasons Painting and Decorating, Board No. 018409-08, a worker was seriously hurt when he fell from a ladder while applying exterior paint to a Springfield home. As a result of his workplace accident, the man sought workers’ compensation benefits from his employer. Although an ALJ found that the man’s injury merited total incapacity benefits, there was limited evidence available to determine his average weekly wage.

At a workers’ compensation hearing, the man established that he agreed to accept about $1,000 from his employer to paint the home. The employee also stated that he fell from the ladder after working on the project for less than two days. Following his injury, the employer terminated the man and paid him $500. The worker claimed that he earned $8,000 during the previous year painting homes and performing a variety of other jobs. As a result of the evidence offered at the hearing, the ALJ determined that the worker was engaged in seasonal work at the time of his accident. Since such a determination requires that an employee’s average weekly wage be calculated by dividing a worker’s earnings during the previous year by 52, the ALJ found that the man’s average weekly wage was about $150.

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In Massachusetts, a party may be ordered to pay financial penalties for unreasonably bringing or defending against a workers’ compensation benefits claim. In Ramona Richards v. US Bancorp, Board No. 041089-03, a woman allegedly sustained a back injury at work in December 2003. After the woman notified her employer about the injury, its insurer denied liability. In June 2007, an administrative law judge (“ALJ”) denied the woman’s request for incapacity and medical benefits following a hearing. The woman ultimately appealed her case to the Court of Appeals of Massachusetts. In May 2009, the appellate court affirmed the ALJ’s decision denying workers’ compensation benefits.

Over the course of several years, the woman continued to file a variety of claims for incapacity benefits related to her 2003 injury. Each was administratively withdrawn based on the doctrine of res judicata. This doctrine prohibits a matter from being revisited after a final judgment was issued based on the merits of a case. In January 2012, the employee filed yet another claim for incapacity benefits that she admitted was exactly the same as three of her previously withdrawn claims. After this claim was also withdrawn, the employee appealed to the senior judge, who then referred her case to the Department of Industrial Accidents for a § 10A conference.

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An administrative law judge must admit additional medical evidence if an impartial medical expert contradicts his or her own prior testimony without explanation in a workers’ compensation disability case. In Lazaro Campos v. SMCS Trugreen Landcare, Board No. 029930-08, a landscaper injured his back while lifting a trailer at work. As a result of his injury, the man underwent back surgery and never returned to work. The man’s employer accepted liability for the worker’s harm and paid him § 34 total disability workers’ compensation benefits from the date of his workplace accident.

Approximately three years after the employee’s injury, an administrative law judge refused the employer’s request to reduce the amount of weekly benefits it paid to the man. Not long after that, the man filed a claim for § 34A permanent and total incapacity benefits. The employer responded by seeking to discontinue all workers’ compensation benefit payments.

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