Articles Posted in Workers’ Compensation

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file0001984548061 morguefile ronniebWhen 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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1323680_question_mark sxchu username 7rainsIn 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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Manhole Cover 2b morguefile dodgertonskillhauseThe United States Occupational Safety and Health Administration (“OSHA”) has issued a final rule designed to provide added safety for construction employees who work in confined spaces that are not designed to be occupied on a continuous basis. Since manholes, tanks, ducts, tunnels, silos, and other confined spaces typically lack an emergency escape route, workers are often placed at increased risk for a variety of injuries and tragic deaths.

According to OSHA, the rule was created after two workers were asphyxiated while repairing a manhole. Sadly, one employee was killed while attempting to save his coworker. In addition to asphyxiation hazards, workers who operate in confined spaces also suffer harm caused by heat, toxic chemicals and other substances, explosions, and electrocution. Secretary of Labor Thomas E. Perez stated that, although construction employees regularly enter confined spaces, fatal accidents do not have to result from doing so. Perez estimated that nearly 800 severe injuries may be prevented by the new rule each year.

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file5031340422169 kellyp42An 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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skull-xray-262056-m freeimages adamciDepending on the circumstances, a pre-existing injury can limit a Massachusetts employee’s right to recover workers’ compensation benefits. In David Corazzini v. Diamond Chevrolet, Board No. 025919-09, a man was employed as a salesperson for an automobile dealership. In addition to his sales duties, the worker was responsible for maintaining the property and snow removal. In January 2009, the employee was apparently injured in a fall while exiting a snow plow. More than one month later, the worker sought treatment for his neck injury at a local hospital. Despite his harm, the man continued to work for his employer until October 2009.

After leaving his sales position, the employee sought workers’ compensation benefits for his neck injury and related back pain. The car dealership responded by stating the business was not liable for the employee’s injuries because the work incident was not the sole cause of the man’s resulting pain. After that, the man was examined by an impartial physician pursuant to § 11A. Prior to a hearing on the matter, the employer and the worker both submitted additional medical evidence to an administrative law judge for review.

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CSC_001111 morguefile dedulophotosThe United States government stopped monitoring the workers’ compensation system in Massachusetts and other states more than a decade ago. According to an investigation recently conducted by NPR and ProPublica, workers’ compensation reform measures passed since that time have left injured employees fighting for their right to receive such no-fault medical and other benefits. Taxpayers in Massachusetts and throughout the U.S. are reportedly spending billions of dollars each year on Social Security disability, Medicaid, and Medicare coverage in order to provide medical and other benefits that are no longer offered by state workers’ compensation systems. At the same time, employers are apparently paying historically low workers’ compensation premiums.

After analyzing insurance industry records and state workers’ compensation laws, ProPublica found that 33 states have passed legislation that reduced or made it tougher to obtain workers’ compensation benefit payments since 2003. In 37 states, employees who are hurt at work must seek treatment from an assigned doctor or choose a physician from a preapproved list provided by an employer. In addition, some states have instituted a time limit for receiving workers’ compensation benefits that is altogether unrelated to an employee’s actual rate of recovery.

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DSC03551-B morguefile Dodgerton SkillhauseSeven Massachusetts employers were recently awarded a combined total of more than $100,000 in grants that were issued to provide safety training to more than 550 workers. The Massachusetts Department of Industrial Accidents Office of Safety administers and manages the Workplace Safety Training and Education Grant program. This program was designed to encourage the creation of safe workplaces through training and preventative programs geared towards individuals and businesses covered by the Massachusetts Workers’ Compensation Law.

Each year, approximately $800,000 is budgeted to the grant program. Following a competitive application procedure, each business that is selected may receive up to $25,000 for safety programs during a fiscal year. Since its inception, thousands of workers and employers in Massachusetts have benefited from the educational opportunities afforded by the program. The most recent round of grant awards constituted the last payments scheduled for the current fiscal year.

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945156_wheelchair sxchu username betacamIn Brian LaFleur v. M.C.I. Shirley, the Massachusetts Department of Industrial Accidents Reviewing Board recommitted a workers’ compensation case to an administrative law judge (“ALJ”) for further findings of fact with regard to the effect a worker’s 1998 knee injury had on his 2008 workplace accident harm under § 1(7A). After the ALJ issued his findings, the worker’s employer filed an appeal over the judge’s decision. The employer argued the ALJ violated its due process rights, committed error when he conducted a status conference off the record, exhibited bias against the employer, exceeded the scope of the Board’s recommittal order, and inappropriately prejudged the employee’s prospective § 34A benefits claim.

According to the Board, an ALJ only possesses those powers set forth in Chapter 152. Since no additional authority was conferred on the ALJ, the Board held that he exceeded his authority when he took action beyond those issues recommitted to him. Similarly, the Board said the judge committed error when he conducted a status conference off the record because all significant workers’ compensation proceedings must be transcribed in order to preserve the record for any potential appeals. The Board said to do otherwise prevents meaningful appellate review and impairs the appearance of ALJ impartiality.

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file0001952273986-morguefile-mconnors-225x300In 2005, the employee who filed In Re Hines’s Case purportedly broke his ankle after he slipped and fell while working as a personal attendant in Massachusetts. As a result of his injury, the employee apparently underwent two surgeries. At the time, the worker received temporary total incapacity benefit payments. About two years later, the company that provided workers’ compensation insurance to the man’s employer sought to terminate the employee’s benefits. In response, the worker joined an additional claim for psychiatric benefits.

At a hearing before an administrative judge, the insurer argued that surveillance tapes and other evidence indicated the worker was no longer disabled. After considering the evidence offered, the judge ordered that the employee’s workers’ compensation benefits be discontinued. According to the judge, there was no reason the worker could not return to his prior position as a personal attendant. The Department of Industrial Accidents Reviewing Board affirmed the judge’s decision, and the Appeals Court of Massachusetts then dismissed the case for lack of prosecution.

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A workers’ compensation judge has the freedom to consider different doctors’ opinions before deciding whether to award workers’ compensation benefits. The judge is not limited to the most restrictive opinion but may award benefits if any of the physicians who examine the injured worker has the opinion that the worker can no longer work, for instance because of chronic pain. The insurer, Massachusetts Retail Merchants, AIG, in the case of Remberto Galdamez appealed from a decision awarding Mr. Galdamez § 34A permanent and total incapacity benefits. The Massachusetts Department of Industrial Accidents Reviewing Board affirmed the award of benefits at Board No. 037394-08.

Laborer Injured Loading Fish

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Mr. Galdamez, born and raised in El Salvador, came to the United States in 1987. Within days of arriving in the United States, he began working as a laborer for Channel Fish Co., Inc. On September 19, 2008, he suffered a work-related injury when a heavy barrel rolled off a truck and landed on his shoulder and neck. He continued to work until the pain became overwhelming. He then attempted light duty, but, according to the employer’s testimony, he was not able to perform any physical work. Mr. Galdamez was examined by Dr. John Lynch, the impartial physician, pursuant to G.L. c.152, § 11A(2). Although the report was deemed adequate, in response to joint motions filed by the parties, the judge allowed additional medical evidence due to the complexity of the medical issues.