Articles Posted in Workers’ Compensation

After a workplace accident, a Massachusetts worker may have more to consider beyond the receipt of funds for lost wages and medical expenses. The Supreme Court addresses one of the related concerns in a recently issued Massachusetts workers’ compensation decision, SJC-12331. The injured employee in this case worked for a Massachusetts town’s department of public works for nearly 27 years. On the day he was injured, he began receiving workers’ compensation benefits as well as two hours per week of sick or vacation pay so that he could keep his union membership and life insurance.

The town decided to involuntarily retire the worker for accidental disability, allowed by G.L. c. 32, Sec. 7. The retirement board of the town approved the application, allowing the worker to receive his workers’ compensation benefits and supplemental pay until July 7, 2012. G. L. c. 32, § 7 permits three possible retirement dates:  the date of the injury, the date six months prior to the filing of the written application for retirement, or the date on which he last received regular compensation for his employment in public service. The date must be the latest of the three. The Public Employee Retirement Administration Commission (PERAC) decided the employee’s last date of regular compensation was July 7, 2012, using his supplemental sick and vacation pay as the basis of their decision.

The employee appealed, and the division of administrative law appeals (DALA) reversed the decision, finding the supplemental pay was not “regular compensation” as defined by the statute. Instead, DALA found the retirement date to be six months prior to the filing of the application because the “regular compensation” ended on the day of the injury, making this one the latest of the three options. PERAC appealed this finding to the next level of administrative review (CRAB), which upheld DALA’s decision. Judicial review was then sought in the civil court system. The superior court also affirmed DALA’s decision, which then was appealed once more by PERAC and moved to the Supreme Court on their own motion.

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If an employee seeks benefits for a work-related injury but has previously suffered medical ailments outside work, an insurer will likely point to the pre-existing condition to show the permanent condition was not caused by the Massachusetts workplace injury. A Massachusetts Reviewing Board decision (Bd. No. 019236-10) analyzed this scenario recently. The employee was severely injured after an attack by a patient. The worker was punched in the head, knocked down, and repeatedly kicked in his abdomen and chest until he passed out. He received medical treatment following the accident, but he still requires care for a fractured right lower leg, deep vein thrombosis (DVT) in his right leg, chronic lower leg pain and instability, and chronic lumbosacral pain.  The employee has not been able to return to work since his injury.

At the first hearing, the worker was awarded permanent and total incapacity benefits (§ 34) from the date of the injury onward. The administrative judge found the injured employee’s neck pain, right knee injury, fractured fibula, DVT, and ankle pain were all caused by the workplace incident. The judge specifically found the employee’s long-term, pre-existing seizure and degenerative arthritis disorders did not worsen because of the injury and did not cause or add to any of the incapacity.

The employee’s injuries were so aggravated by the time of the second hearing that he could only stand for five to 10 minutes at a time, sit for 10 to 15 minutes at a time, and walk for 10 to 15 minutes at a time. Despite the use of a cane, his knee and leg would give out, causing him to frequently fall. The intensity of the pain also meant he suffered from interrupted sleep. In his findings on the second hearing, the judge relied upon the opinion provided by the impartial medical examiner (IME), reiterating his findings from the first hearing. The insurer appealed, raising three issues. It felt the judge improperly relied upon the IME’s opinion to find a permanent and total disability because the IME referred to the employee’s back and seizure conditions in reaching his opinion. Since the judge specifically found the § 34 benefits were NOT related to the industrial accident, the insurer argued this was inconsistent and should be thrown out.

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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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