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Busy Shopping Season Leads to Hazards

In the midst of the holiday shopping season, retailers are pushing hard to make a large percentage of their profits for the year. Shelves are piled high, aisles are crowded with special displays and decorations, doorways are blocked by excess stock and discarded packaging. The stockpiling of goods for sale creates many hazards for employees, leading to falling boxes and even blocked exits in the event of a fire.

OSHA Cites Dollar Tree Stores, Inc. After Complaint

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The U.S. Department of Labor’s Occupational Safety and Health Administration (OSHA) inspected the Dollar Tree Stores Inc. location in Boston’s Roslindale neighborhood and concluded that employees could be subject to such safety issues as blocked exits and a jam-packed stockroom. The agency assessed $177,800 in proposed fines against Dollar Tree. OSHA inspected the store after an employee complained to the agency’s Braintree Area Office.

OSHA officials condemned the company as having committed repeat offenses and showing no motivation to correct previous workplace safety problems. An inspector had notified the store’s management of problems at one inspection but discovered to his dismay on a subsequent visit that no steps had been taken and the same hazardous conditions existed, compromising employees’ health and safety. Continue reading →

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65898_emergency_room sxchu username BubbelsEmployees in Massachusetts generally cannot directly sue their employers for any injuries sustained at their jobs. Instead, employers across the Commonwealth must purchase “no fault” workers’ compensation insurance, which is part of a system that is intended to protect workers who are tragically killed or suffer a serious injury in a workplace accident. Unfortunately, some Massachusetts employers endeavor to avoid paying their fair share of workers’ compensation premiums. Employers who are caught doing so can face both financial and criminal penalties.

According to Massachusetts Attorney General Martha Coakley, a Chelsea man was recently charged with committing worker’s compensation fraud in an effort to avoid paying almost $50,000 in workers’ compensation premiums. The 50-year-old man allegedly underreported the total payroll at a now defunct Dorchester temporary employment agency, where he acted as operations manager, to cut costs. Although the agency operated a payroll of more than $2 million between 2007 and 2009, the man reported to his workers’ compensation insurer that the amount was less than $200,000. He was apparently granted a lower insurance premium based on the purportedly bogus numbers.

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OLYMPUS DIGITAL CAMERAEmployers in Massachusetts and throughout the United States are required to protect excavation workers who dig five feet or more from sidewall collapses. Safety measures may include sloping soil at a shallow angle, shoring trench walls, or using a trench box designed to protect excavation workers. According to the U.S. Department of Labor’s Occupational Safety and Health Administration (“OSHA”), an East Coast business willfully failed to follow mandatory trenching and excavation safety guidelines with tragic results. Sadly, two men were killed when a trench collapsed.

Following an investigation into the trench cave-in death of two employees, OSHA issued one willful and nine serious violations to the landscape, excavation, and snow removal business that employed them. In general, a willful violation occurs when an employer voluntarily or knowingly disregards federal health and safety laws designed to protect workers. A serious violation results when an employer knew or should have known about a hazard that is substantially likely to cause an employee to suffer serious physical harm or death.

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DSC06084-B2 morguefile dodgertonskillhauseUnder Massachusetts law, a surviving spouse or other close family member may be entitled to workers’ compensation benefits following an employee’s workplace death. Still, the benefits that are available depend on the facts of each case. In Walsh v. Courier Corp., a Massachusetts machine and forklift operator collapsed at work in 2010. Unfortunately, the man was pronounced deceased at a local hospital about an hour after his shift ended. According to the man’s treating physician, the worker’s cause of death was hypertensive cardiovascular disease.

Soon afterward, the employee’s wife sought workers’ compensation benefits from the man’s employer. In her claim, the spouse invoked § 7A of the Massachusetts Workers’ Compensation Act. This section states a workplace death is prima facie evidence that a claim falls under the provisions of the Act. The man’s employer argued that § 7A did not apply to the decedent’s case and denied liability based on the “combination injury” defense included in § 1(7A).

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8-03-4 morguefile kolobsekThe Massachusetts Workers’ Compensation Act prohibits an employee from bringing a lawsuit against an employer for injuries that arise out of his or her employment. In Branyan v. Southwest Airlines Co., an airline employee apparently sustained a wrist injury while assisting a passenger in 2013. Following the incident, the worker was placed on paid leave. During this time, the airline continued providing the Halifax woman with health and other benefits. About two months later, the airline’s insurer denied the employee’s claim for workers’ compensation benefits.

Next, the airline reportedly began demanding reimbursement for the benefits paid on the worker’s behalf and charged her sick time for her absence. The airline also allegedly began requesting that the employee return to work immediately. During this time, the worker underwent surgery and purportedly directed all further communications to her attorney. After the airline made numerous calls to the worker, it eventually requested that local police perform a wellness check on her. Three days later, the worker was notified that her employment was terminated.

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1402599_untitled sxchu username KrappweisFour Massachusetts contractors were recently cited by the nation’s Occupational Safety and Health Administration (“OSHA”) over worker fall hazards at an Easthampton renovation project. According to the agency, OSHA’s Springfield office responded to a dangerous working conditions complaint regarding the project in July 2014. Following an inspection, the four contractors were issued proposed fines totaling more than $110,000 for placing employees at risk of falling up to 40 feet.

OSHA Area Director Mary Hoye stated falls are the leading cause of worker injury and death in Massachusetts and across the United States. In 2010, 35 percent of construction worker deaths in the nation resulted from employee falls. According to the U.S. Bureau of Labor Statistics, at least seven employees were killed in a fall at a Massachusetts construction project in 2012. Unfortunately, employees often suffer tragic disabling or fatal accidents when a workplace lacks sufficient fall protections.

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file0001010530177-morguefile-username-Alvimann-225x300In Cleveland v. P. J. Keating Materials Corp., a Massachusetts administrative law judge (“ALJ”) ordered an employer to pay a worker nearly $645,000 in § 28 benefits related to the harm the employee sustained in a 2002 industrial accident. Under the statute, a workers’ compensation claim may be doubled if the employee’s harm results from an employer’s serious and willful misconduct. Following the award, the ALJ denied the employer’s request to stay payment or commit half of the funds to an escrow account pending an appeal. After that, the worker was provided with and apparently spent the full award.

Next, the Department of Industrial Accidents Reviewing Board reversed the ALJ’s § 28 award, and the Massachusetts Appeals Court affirmed the Board’s decision. After further appellate review was denied, the employer sought to recover the money paid to the injured worker under the section. Eventually, another ALJ filed an award for recoupment in favor of the worker’s employer. The employee then appealed her decision to the Board.

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file5691252161803 morguefile roganjoshAn administrative judge is required to state how an injured worker’s earning capacity was determined when making a workers’ compensation award. In Miranda v. Huntington Hotel Corp., a hotel housekeeper hurt her back while lifting a bag of trash. As a result of her compensable back harm, the housekeeper underwent two surgical procedures. The woman’s employer paid her § 34 total incapacity workers’ compensation benefits until they were exhausted by statute. After that, the housekeeper sought permanent total incapacity benefits under § 34A. Following a hearing, an administrative judge awarded the worker benefits for a period of one year. In response to the judge’s decision, both parties filed an appeal.

Soon after, the housekeeper was examined by a § 11A impartial physician, whose testimony was then entered into evidence. At no time did the housekeeper or her employer seek to admit additional medical evidence. At a subsequent hearing, the housekeeper’s employer claimed the woman exaggerated about the extent of her disability. In support of its position, the employer offered surveillance evidence that was provided by an investigator who followed the housekeeper around town as she ran several errands. The housekeeper admitted she ran the errands but stated her back pain often limits her ability to sit, stand, walk, or engage in other activities.

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094 (6) morguefile scarletinaIn Massachusetts and across the United States, the same legal issue may not be litigated twice. In Wentworth v. Country Hen, a route delivery person apparently injured his arm and his neck while delivering eggs in June 2005. Although the worker finished his deliveries at the time, he did not return to work after the date of his harm. The following month, the employee sought § 34 total incapacity workers’ compensation benefits.

In response, the worker’s employer disputed liability, the man’s disability, the causal relationship to work, and other issues. Despite this, an administrative judge awarded the worker § 34 benefits for July 2005 through August 2005 and § 35 partial incapacity benefits beginning on August 10, 2005. Neither the worker nor the employer appealed the judge’s order.

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DSC_0284 morguefile larryfarrOverseeing jails and prisons can be mentally and physically difficult. Unfortunately, corrections officers in Massachusetts and elsewhere may be exposed to dangerous working conditions on a daily basis. In Marchand v. Department of Correction, a Massachusetts corrections officer was assaulted by an inmate in January 2008. As a result of the incident, the man suffered a compensable injury and received § 34 temporary total disability workers’ compensation benefits for six months and § 35 partial disability payments for five years.

In October 2010, the man’s employer requested a hearing in order to ascertain whether the officer was medically able to return to work. After determining the man was not able to return to work, the officer’s employment was terminated. Until the worker was terminated, he received assault pay benefits in addition to his workers’ compensation benefits. Such payments are designed to make up the difference between the workers’ compensation benefits received by an injured employee and his or her typical wages.

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