Articles Posted in Legal Concerns & Advocacy

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Money fanTwo 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.

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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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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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forklift-13275-mRecently the Massachusetts Reviewing Board considered a case in which a 41-year-old employee appealed after his workers’ compensation claim for benefits was denied. He claimed he had been hurt on his second day of work when a forklift shoved three empty large containers into him. His foot had gotten caught under the containers, and he had pain in his back, hip, and knee. After a Section 10A conference, a judge ordered the insurer to pay benefits. The parties appealed.

The judge acknowledged the worker’s claim about getting his foot caught but found that the record showed the worker had not sought treatment for the leg injury. Furthermore, the CT scan and x-ray did not show evidence of traumatic injury. A treating doctor’s note suggested that the worker had “drug-seeking behavior” and magnified his symptoms. The judge also found that the worker previously had been incarcerated for breaking and entering and property theft. In Massachusetts, these are crimes that allow the court or a judge to draw an inference of untruthfulness and, under certain situations, apply it to the testimony of a convicted felon.

The worker did not challenge the finding on appeal but did bring up the judge’s comments. These included remarks about the consistency between his date of hire and his date of injury in four different workers’ compensation cases. The worker had a history of three claims of injury within two weeks of hire and another of an injury within 11 weeks of hire. The judge took from this evidence the inference that the worker was a “compensation-minded” individual and that he was not necessarily credible in his current claim. The judge ultimately concluded the worker was not a credible witness as to the industrial injury and dismissed his case. Continue reading →

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stonemason-484465-mMost employers in Massachusetts are required to carry workers’ compensation insurance coverage. In the event an employee is injured, the carrier pays for all claim-related expenses. In exchange, workers are not allowed to file a personal injury lawsuit against their employer. However, when employers do not carry insurance, they forgo the immunity from suit offered by the workers’ compensation laws. A civil suit may be filed against them.

Some of the businesses that fail to carry workers’ compensation insurance are disorganized in multiple ways. An interesting problem arises when the business does not carry worker’s compensation insurance, but nor does it have sufficient resources to pay a personal injury claim. Can a worker then sue one of the partners of the business who may have resources individually? It depends on how the business is organized.

In a recent case, a plaintiff had been injured while working for a granite company. The company was registered in 2007 as a sole proprietorship by Eric Lowe, who listed his personal address as a condo that was owned by his companion of the time, Lefas. After that she did some work for the company, including bookkeeping. She wasn’t compensated for that work on a regular basis, but certain payments were made to her from the company. Continue reading →

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nurse-1-1158314-m-2Some workers’  compensation cases are more medically complex and it may be necessary for the judge to expand the medical record to make a sound finding. In a recent case a Massachusetts employer (Snap Mart) appealed after an administrative judge awarded workers’ compensation benefits and the court denied its motion to settle and clarify the record. The employer argued the judge had abused her discretion by expanding the record because of medical complexity. It also argued that the issue of medical complexity should not be up to a judge’s discretion, but another standard. It agued that the judge’s decision as to the worker’s earning capacity was arbitrary and capricious.

The appellate court explained that the administrative judge had found the issues in this case medically complex. A worker can introduce additional medical evidence where medical issues are complex. This is an issue committed to the administrative judge’s discretion. Snap Mart had not objected at the lower level, which meant it could not appeal on this point. However, the appellate court found that even if the employer had properly objected, there was no abuse of discretion.

The court explained that the judge was entitled to adopt the doctor’s opinion that the medical condition was complex. The worker’s medical history showed he had suffered acute injury and also had a preexisting condition of posttraumatic arthritis and damage to his leg and knee as a result of being tortured in his native country before the workplace injury. Continue reading →

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mobile-phone-in-hand-1307593-m-2Texting while driving is a major workplace hazard in Massachusetts and elsewhere. You may have noticed other drivers looking down at their hands and fingers while only occasionally looking up at the road. Some drivers miss green lights because they sit at the traffic light texting. For deliverymen, using their cell phone while driving can be a particularly big hazard. They may be texting or typing their address into a cell phone in order to get a map. One of the leading causes of worker-related injuries and fatalities is distracted driving — motor vehicle crashes are the leading cause of worker fatalities.

In fact, texting is not only dangerous in the context of driving on public roads. It must also be prohibited in other work contexts such as: construction, utility work, hospitals, farms and anywhere else where workers should not be distracted.

The Virginia Tech Transportation Institute found that the risk of a crash or accident is multiplied by 23 times if texting while driving. A Federal Motor Carrier Safety Administration study found that texting on average leads to drivers taking their eyes off the road for 4.6 out of every 6 seconds. This is long enough to drive across the length of a football field at 55 mph. Most people recognize this is extremely dangerous when somebody else is doing it. Continue reading →

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monitor-1326722-mOn November 7, OSHA proposed a new rule to improve tracking of workplace injuries and thereby improve workplace safety. The new rule could have a strong positive effect on Massachusetts’ workplaces. The Assistant Secretary of Labor for Occupational Safety and Health cited the recent release of the Bureau of Labor statistics as a reason for the rule. About 3 million workers were injured at work in 2012. The rule was developed after several stakeholder meetings were held.

Currently there already exists a requirement that certain employers keep records of workplace injuries. However, employers with 10 or less employees or those in industries with reduced hazards (finance and insurance among them) are not required to keep records unless OSHA specifically requires them to do so. The proposed rule won’t affect them.

The proposal requires employers with more than 250 employees and those that are already required to keep injury and illness records to submit the records to OSHA electronically every quarter. This means the employers will have to submit the employee’s name, job title, date of injury, location, description of the injury, a recordkeeping classification and days away from work and other detailed information.  Continue reading →