Articles Posted in Workers’ Compensation A-Z

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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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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.

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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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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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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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surgery-3-1158306-mIn a recent case Joseph F. Driscoll v. Town of Framingham, an employee appealed from a decision that awarded him medical and total incapacity benefits for under a year from 2003-2004. The employee alleged he suffered a back injury from work and was paid benefits for several months. The employee filed a claim for ongoing benefits. The self-insurer denied the claim. The judge denied the claim, leading to the plaintiff’s appeal to the Massachusetts Reviewing Board.

Before the hearing in 2007, the employee was examined by an impartial medical examiner. In a detailed report the doctor explained that the back strain was caused by an industrial accident. The doctor also believed the injury was disabling for up to 12 weeks and that the rest of the treatment was excessive. He explained that initially the employee would need to be limited to sedentary work because he had not been in the workforce. The doctor looked through the worker’s medical records and noted pre-existing degenerative disc disorder. Otherwise, he found them unremarkable.

The self-insurer alleged it wasn’t liable and that the worker had a combination injury. The judge permitted the self-insurer and the worker to present further medical evidence to address the worker’s medical condition before the doctor’s independent examination. Continue reading →

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industrial-park-1372192-mWhen claimants are older, insurers may try to argue that any worsening of their disability is due to old age, rather than a work-related injury. In a recent decision (Scott Hibbard v. Henley Enterprises), the Massachusetts Reviewing Board considered this issue in the case of an employee who injured his back while lifting a garage door at work. He was out of work for six months and then came back to a light duty job (9 hours a week) with his employer.  Months later, his employer terminated him and he started to collect unemployment compensation. He did not work after 2008.

The insurer appealed from a decision that ordered it to pay ongoing benefits to the employee, raising issues of causation and worsening. The employee’s initial claim had led to an award of temporary total incapacity benefits for a few months and partial incapacity benefits that continued to the present day. The employee filed for permanent and total incapacity benefits in 2011. A judge ordered these benefits.

An impartial medical examiner had examined the employee to evaluate his claim both initially and a few years later. In his later report, he offered the opinion that the worker suffered a lumbar strain superimposed on preexisting multiple level disk degenerative changes and that the worker wasn’t able to perform work based on his complaints of pain. The medical examiner later testified at a deposition, indicating his opinion that the employee was totally disabled and that the condition could be permanent. Continue reading →

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carpenter-series-1-1164432-mWhat happens if you are a self-employed sole proprietor who gets injured on the job in Massachusetts? Are you treated as an employee for purposes of workers’ compensation? It depends on your policy language, including any exclusions.

A 2010 case arose when a self-employed carpenter doing business as a construction company/sole proprietor purchased a workers’ compensation insurance policy from Liberty Mutual Insurance Company. He purchased the policy because a real estate management company that managed properties where he performed construction work required him to show them proof of the policy before starting work.

The policy he purchased required him to pay the minimum policy premium because he had no employees on payroll. It included an exclusion. It excluded “partners, officers and others”; it excluded him from coverage as an owner. At the time, Massachusetts’ law did not permit him or other self-employed sole proprietors to be considered an employee of his own business. In 2002, the statute was amended to permit a sole proprietor to be considered an employee. Continue reading →

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rural-self-portrait-1363174-mDo workers’ compensation judges have to adopt expert vocational testimony in determining whether or not to award benefits? In a recent case, the Massachusetts Workers’ Compensation Reviewing Board was asked to reconsider its prior holdings that judges do not need to talk about or adopt expert vocational testimony so long as they make clear they considered that testimony.

In the case, a 59-year-old employee had received his GED in 1974 before beginning work as a pre-set-up operator. He hurt his back while bending a little over 15 years later. He worked in a light duty capacity for two more years when he had to leave work because of back pain. In 1991, he started collecting partial incapacity benefits, which he could receive for 600 weeks. When those ran out, he filed for total incapacity benefits and medical benefits. A conference was held, after which his claims were denied. He appealed.

At the hearing for his appeal, he asked two vocational rehabilitation experts to testify. The judge did not adopt their opinions, but did note them as witnesses and recorded their reports as exhibits. The judge noted that the employee had taken a job as a bartender part-time. The employee had testified he no longer liked the job and was working twelve hours a week just trying to “kill time.” He also testified he left the job because of the back pain, but the judge didn’t credit that testimony. Continue reading →