Articles Posted in Workers’ Compensation

If you’ve been injured in the workplace, you are obligated to provide notice of the injury and notice of a claim within the statutory time limits. Massachusetts General Laws, c. 152, § 41 requires notice of an injury to the insurer or insured as soon as practicable within four years of the date the injured worker is able to connect the cause of her disability to her employment. While an injured person must provide notice, the insurer must also act if it perceives timing to be a problem.  A recent decision asserts it is the insurer’s responsibility to properly raise this affirmative defense of improper notice at the time of the hearing, rather than on appeal.

This decision originates from ongoing injuries suffered by a registered nurse. The nurse injured her neck at work in January 2007 and sought treatment at the time of the injury. She kept working but suffered increasing pain until a surgery two months later on her C5-C6 vertebrae.

Two years after this procedure, the nurse began experiencing and treating neck pain again, but she remained on the job for another three years. She eventually sought physical therapy and received corticosteroid injections. The nurse managed to return to full-duty work but left in April 2014, due to exacerbated neck pain. This resulted in another surgery on her spine the following year. She has not returned to work since the operation in July 2015.

The Reviewing Board recently issued a decision assessing the earning capacity of an injured teacher who was awarded § 35 partial incapacity benefits, calculated with two separate earning capacities. In this Massachusetts workers’ compensation case, an elementary school teacher suffered from a strain in her shoulder after years of reaching to place supplies and drawings in an overhead bin. This teacher used the same arm to demonstrate techniques and painting at an easel. She also used this arm while manipulating the paper cutter’s heavy blade. These repeated motions caused her to develop worsening pain in the section of her arm above the elbow every time she used the cutter.

On one occasion in 2009, she felt a sharp pain in the problematic arm while using the cutter, but she failed to report the incident immediately after it occurred. She also did not mention her belief that she developed a work-related shoulder condition. The teacher continued to work until her retirement in May 2010. In September 2010, she filed an incident report for the 2009 pain, as well as the general shoulder problem related to her work.

The injured teacher did tell her primary care physician about the pain in November 2009. She was referred to an orthopedic physician and given a diagnosis of rotator cuff tendinitis. The injured teacher began physical therapy, which ended in January 2010. In August 2010, she had an MRI performed on the affected shoulder. Eventually, she sought care from a different orthopedic surgeon, who ordered a cervical MRI in February 2012, which revealed numerous problems with her spinal discs C4 through C6, predominantly on her right side. This physician continued to treat her, prescribing both prescription and over-the-counter medications.

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Obtaining all of the workers’ compensation benefits you are entitled to receive can be a long, arduous journey. This is seen in a recent Reviewing Board case in which an employee sustained work-related emotional injuries from a series of encounters with management in a three-year period. The employee was previously awarded temporary and total incapacity benefits and managed to keep the awarded benefits after the employer appealed the award. The prior administrative judge found the work-related events were the major and predominant cause of the worker’s injury, disability, and need for treatment and exacerbated her PTSD from childhood occurrences.

During the appeal of the temporary benefits, the worker filed for permanent and total incapacity benefits to begin when the period for temporary benefits ended. The same administrative judge heard and awarded the permanent and total benefits to begin on May 13, 2012 and end on December 13, 2013. Both parties appealed. The judge heard the testimony of three lay witnesses but did not hear the medical deposition of the independent medical examiner (IME). The judge left the department, and the case was reassigned to a different judge. The parties agreed the judge could use the transcript of the last hearing in making her decision, but the injured person would testify again so that the judge could assess her credibility.

The IME re-examined the injured employee prior to the worker’s testimony before either judge and issued a report. The first judge found the report was adequate, and the medical issues were simple enough to avoid opening the medical record. Medical evidence was permitted, however, to provide proof between the date the permanent benefits were claimed and the date of the IME’s report. The second judge made similar findings and also allowed evidence for the “gap medicals.”

A Massachusetts workers’ compensation reviewing board decision earlier this year looked at whether subsequent insurers should be responsible for helping to pay the benefits awarded to a roofer injured over the course of 30+ years of work. The roofer installed duct work and metal roofing since 1970. He carried aluminum weighing up to 60 pounds and kneeled often. He experienced his first knee injury in 1981 and was given workers’ compensation in that state. He underwent arthroscopic surgery and returned to work without any further injuries until 1998.

In 1998, his knee began locking and eventually “popped” while working on a roof, causing excruciating pain. A second arthroscopic surgery was needed, and he received workers’ compensation benefits for three to four months and returned to full duty work once again. No additional medical treatment was needed after his return to work for an additional 10 years. In 2008, he was diagnosed with arthritis in his left knee.

The injured employee kept working but experienced pain when he had to climb or kneel. He later described his pain as the same whether it was “climbing ladders at work or climbing stairs at home.” To relieve the pain, he received three cortisone shots to his left knee. The injured employee testified that they did not help much, and he kept working without additional treatment until three years later. Shots were tried again but eventually discontinued due to the employee’s allergy to the injections. The employee kept working until he was laid off, but he did not pursue any other work, since he had to undergo total knee replacement surgery.

The state allows employees to receive Massachusetts workers’ compensation benefits for both physical and psychological injuries. An employee is considered to be injured if the disability was predominantly caused by an accident that occurred while performing tasks for the employer. An injured employee can also recover for aggravated mental injuries that preceded the workplace accident if the workplace accident is a major, but not necessarily predominant, cause of the disability or need for treatment. In this instance, the injured employee does not have to provide as much medical proof to show she or he qualifies for benefits.

A recent Reviewing Board decision (Board No. 020182-15) looks at the difference between the burdens of proof. The self-insurer/employer sought to reverse a ruling awarding the employee total incapacity benefits. The employer argued several errors were made by the administrative judge. The board declined to dismiss the employee’s claim but did recommit the case for additional findings of fact.

In its decision, the board felt the nature of the dispute required a deeper scrutiny of the facts. The employee was a chaplain working at a hospital when a resident lunged from his wheelchair and hit the chaplain in the face. The employee maintained he sought workers’ compensation for his physical injury sustained from the incident as well as benefits for his pre-existing mental health issues. On appeal, the employer argued the employee was only attempting to seek benefits for a pure mental or emotional injury. The record indicated otherwise. The board noted the judge seemed to view the case as the injured employee presented it – a physical injury resulting in emotional sequela, or an aggravation of his previous injury. The employer felt it was deprived of due process by the judge’s treatment of the claim by allowing the lower burden of proof to prevail. The injured employee countered that there was no stipulation to the heightened standard of medical proof regarding causation.

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Massachusetts workers’ compensation offers benefits for both physical and psychological injuries an employee suffers after an accident. By their nature, physical injuries are easier to connect to a workplace accident. Detailed proof and testimony must be offered by an injured person to show the workplace accident was the major factor in the psychological injury. A recent Massachusetts workers’ compensation action (Bd. No. 031456-05) offers a glimpse into which proof can be offered in a successful bid for workers’ compensation for a psychiatric injury.

In this lawsuit, the Reviewing Board assessed whether or not an employee should have been awarded both §§ 34 and 34A benefits. The employee suffered multiple fractures in her left foot after she slipped and fell in an industrial accident. Her employer agreed the foot injury was caused by a workplace accident and agreed to cover the initial costs related to her psychiatric issues stemming from the injury. The employee exhausted her § 35 and § 34 benefits after a fusion in 2006, followed by another in 2012 and a third in 2013. The second surgery seemed to provide some relief to her condition but did not resolve her pain or her difficulties walking on uneven surfaces. The third surgery did not do much to alleviate pain in her heel or the pain that had since developed in her knee. Since the accident, the injured person could not leave the house on cold days because it took her foot hours to feel warm, which then resulted in additional psychological tension. Because of the constant pain and inability to perform typical daily functions, the employee often felt sad, cried, and had fits of anger.

At the hearing, the administrative judge found the employee was permanently and totally disabled due to both the orthopedic and the psychological conditions. The employee was awarded § 34 and § 34A permanent and total incapacity benefits. The employer/self-insurer appealed the ruling, alleging the psychiatric disability should not have been tried at the hearing, since the issue had not been raised at the pre-trial conference. The Reviewing Board disagreed, pointing to the submissions and transcript of discussions before the hearing.

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Injured Massachusetts employees may be surprised to learn that workers’ compensation includes benefits for psychiatric injuries. Compensable psychiatric injuries can be caused by hostile supervisors, bullying by coworkers, or traumatic events. Anxiety and depression stemming from a physical injury can also be compensated. Claims for psychiatric benefits are discussed in a recently issued Reviewing Board decision (Bd No. 0061111-12), which looked at whether or not the administrative judge erred by ceasing all claims for benefits after May 2013.  The injured worker was a court officer whose duties included transporting prisoners and providing security in the courtroom. In 2012, the employee was injured by a prisoner and taken to the hospital to care for harm to his ribs, right arm, and wrist. The officer also experienced headaches and vertigo months after the incident.

The self-insurer accepted liability for the physical injuries. Benefits for those were resolved in 2013. At this conference, the employee added claims for psychiatric counseling, PTSD, and further indemnity benefits. The insurer objected, disputing the liability for the neurological injury and PTSD claim. The insurer asserted there was no causal relationship between the psychiatric injury and the workplace.

In his decision and denial of benefits, the administrative judge adopted the expert testimony opinion the employee did not have an objective neurological impairment related to the inmate altercation in 2012, as well as the opinion of another expert who determined the injured employee did not have a psychiatric condition limiting his ability to work. The judge found that the employee’s physical injuries had resolved by May 2, 2013 and that he was able to perform the full range of activities consistent with employment.

Many types of Massachusetts workers’ compensation benefits are directly paid after proof of treatment or travel is provided to the employer’s insurer. Some, like lost wages, require the application of a formula found in Massachusetts’ General Laws. This formula takes a percentage of the highest wage paid over a period of time and divides it by the number of weeks in this period to find what the injured employee’s Average Weekly Wage payout will be. A miscalculation can cause the employee to be underpaid or overpaid for a long period of time before correction. Many workers’ compensation awards go before the Reviewing Board or an appellate body to see if an employee has been overpaid benefits.

This can be seen in a recent Board decision (Bd. No. 00294-13). In this case, a medical health assistant was injured after she slipped on black ice at her workplace. This accident caused an injury to her back that was treated with injections, physical therapy, and diagnostic testing. This treatment occurred over two years, beginning with care performed by a nurse practitioner and eventually leading to a consultation with an orthopedic surgeon. During this period, she performed modified work at her original position, part-time bartending, and baby-sitting. Over a year after the accident, the injured worker went to an Independent Medical Examiner, who agreed with her treating physician that she had a lumbar spine strain with a small central disc protrusion. He also agreed that the workplace injury was the major contributing cause of her disability and need for treatment. The IME opined that she could still work a 40-hour work week with no repetitive stooping and bending, along with lifting and carrying restrictions.

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Determining if an injured employee is eligible for workers’ compensation benefits is straightforward if the accident occurs at the work site. It is not as clear if the worker is injured while traveling to and from locations. Workers’ compensation benefits are awarded to those injured while performing acts for the employer in the ordinary course of business. Thus, if a position requires an employee to travel, and the employee is injured while traveling for the employer, the employee is eligible for workers’ compensation. However, a worker is barred from receiving compensation if the “going and coming” rule applies. This rule blocks injured workers from receiving compensation if an injury occurs while an employee travels to and from a lone, static place of employment.

Traveling employees are different, though, and this is illustrated in a recent Reviewing Board decision (Board No. 015466-13). In this case, the insurer appealed a decision by an administrative judge that awarded payment of §§ 13 and 30 medical benefits to a nurse seriously injured in a car accident. The injured worker was a psychiatric nurse who was assigned to work in Brattleboro, Vermont. The employee traveled from her home in Massachusetts to work five days a week on the night shift. The injured nurse was provided expenses for a hotel stay and meals for five days of the week. The nurse advised she did not put in for additional travel reimbursement from the employer, nor did she tell her employer whether she traveled home to Massachusetts on her off-days. The injured nurse did not think she was required to go home on those days, nor did she believe she was obligated to tell her employer any time she went home.

The senior market manager for the injured nurse’s company testified at the hearing. The manager stated she provides all traveling employees with a seven-day per diem each week unless she was told they were traveling back to the “permanent tax home.” The manager testified that while she did not assume the contracted medical staff traveled, she did provide additional per diem payments to employees who notified her they were going home to pick up clothes or traveling for a personal event.

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