Articles Posted in Workers’ Compensation

When an injury occurs in a Massachusetts workplace, an injured employee can receive payment for the medical treatment of the injury as long as it was related to the workplace accident. In Thomas A. Novack’s Case (15-P-1090), a nursing home employee sustained a lower back injury while on the job. He eventually received a lump-sum payment with an agreement that the insurer would keep paying for medical treatment that was adequate, reasonable, and stemming from the workplace injury. The injured employee received treatment from various providers after the settlement, and those costs were paid by the insurer for the next five years. The insurer then ceased payment, and Medicare began paying for all of the medical treatment received thereafter.

The employee filed for reimbursement from the Department of Industrial Accidents for the treatment paid for by Medicare. The Administrative Law Judge (ALJ) pondered whether the injured employee could even seek reimbursement when a third party made the payment, but the ALJ ultimately stopped at the finding that the treatment was not adequate, reasonable, or causally related to the workplace injury. The ALJ also noted in the decision that there was a lack of proof that bills were submitted to the insurer before they were given to Medicare. The request for reimbursement was denied, and the injured employee appealed.

The Appeals Court looked at the conclusions of the ALJ to see if the evidence supported the findings. The ALJ did not find the treating physician’s letters persuasive in their attempt to show the connection from the back treatment to the workplace accident. The appellate court felt the ALJ documented sufficient evidence to rule against the injured employee. The ALJ’s ruling in favor of the insurer was affirmed.
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Many types of employment involve repetitive motions. Over the course of time, these repeated movements can lead to an injury that is compensable under Massachusetts’ workers’ compensation laws. A recent Board Decision in Aguilar v. Old Republic Insurance (Bd No. 029539-12) reviewed a decision that awarded a limited amount of temporary total incapacity benefits, an ongoing award of partial incapacity benefits, and medical benefits for a total replacement for the injured worker’s right knee. In this case, the injured employee worked as a certified nursing assistant (CNA), which required her to move, feed, dress, and bathe patients. During the proceedings, the injured CNA testified that she felt pain in her knees, especially the right one. The nurse stated that she fell to the floor in 2011, landing on the right knee while bringing a tray to a patient.

The employee stopped working in the year following the fall, and she had the knee replacement procedure. The injured CNA then applied for short-term disability benefits, followed by workers’ compensation benefits. Following the filing of this claim, the CNA was seen by an impartial medical examiner, who agreed with her treating physician that her employment was the major cause of her knee injury. The judge adopted these opinions, ruling out the pre-existing condition defense raised by the insurer. The judge found the injured CNA’s testimony regarding her multiple falls was credible, based on the hospital visit that followed a fall and a report to a supervisor. The judge also felt that she should be credited for all the multiple, documented complaints she made throughout the years preceding the knee replacement to her supervisor.

In addition to arguing the injured employee’s knee was the result of a pre-existing condition, the insurer also argued that the CNA did not prove she fell and struck something during the last reported fall, nor did she prove the rest of the falls described arose out of her employment. The insurer pointed to the employee’s non-work-related diagnosis of vertigo and dizziness as the cause of the falls. While the Reviewing Board agreed that the judge did not make findings about the falls or the nature of the falls, the judge felt that those falls were not really relevant to whether or not the injured CNA suffered a workplace injury. The board found that the focus of these proceedings was the repetitive movements the employee had to make while performing her duties. The board felt that there was plenty of evidence and testimony for the judge to find a workplace injury did occur, and to award all of the temporary, partial, and medical benefits.
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In Massachusetts workers’ compensation claims, an award of partial incapacity benefits rather than total incapacity benefits can make all the difference to a worker and his or her family. It can be the difference between financial strain and an existence that resembles life before the accident. Massachusetts workers’ compensation law Ch. 152 §1(7A) allows compensation for workplace injuries that exacerbate pre-existing conditions, as long as there is a determination of whether or not the compensable injury remains a major cause of the disability or need for treatment. The workplace injury does not have to be the predominant cause of the disability. In Herrera vs. Mediate Management, Inc. (Bd. No. 010696-10), the Reviewing Board chose to return the case to the Administrative Law Judge for additional findings of fact regarding whether or not the compensable injury was a major cause of the disability. The board did so because it felt there was insufficient analysis in the determination of whether or not the janitor’s current medical condition entitled him to receive total incapacity benefits instead of partial incapacity benefits.

In this case, the janitor tore his medial meniscus and underwent physical therapy and arthroscopic knee surgery. The janitor testified that his pain did not abate, and he was unable to work in the same occupation due to this injury. The ALJ, in his findings, wrote that he agreed with the medical opinion of the insurer’s expert witness, which concluded he had a pre-existing condition that was unrelated to the injury and progressive in nature. However, he also wrote that he agreed with the janitor’s medical expert, who placed restrictions on the employee’s movement and opined that the work-related injury remained a major contributing factor to his need for treatment. The ALJ then concluded, based on the testimony of the impartial physician (which was not formally adopted), that the arthritis and continuing degeneration were not caused by the workplace injury. The judge went on to rule that the janitor could work light duty and qualified for partial incapacity benefits, but not total incapacity benefits.
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In Robert Amaral’s Case (15-P-860), the Appeals Court of Massachusetts reviewed whether or not it was appropriate for an administrative hearing judge to terminate a worker’s total weekly incapacity benefits. The worker injured his shoulder and lower back while helping restrain two juveniles at the Department of Youth Services. He originally received both total and partial incapacity benefits, but his employer, a self-insurer, filed to discontinue the total incapacity benefits.

The employer argued that the injured worker was no longer entitled to weekly benefits because the injury sustained at work was not a major cause of his continued disability. The administrative judge relied upon the employer’s medical expert witness, who opined that his disability mostly stemmed from his pre-existing spinal degeneration and obesity.

In all workers’ compensation cases, the judge is allowed to weigh the medical evidence presented in order to determine whether the injuries sustained by the worker were actually from the workplace and not aggravated by conditions preceding the accident or aggravated by circumstances outside of and unrelated to work. In this case, the injured worker appealed the judge’s ruling and the affirmation of the Reviewing Board, arguing that the judge had abused her discretion by adopting the medical opinion of the employer’s expert.
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When a worker is injured, it is not always clear whether his or her current medical conditions and injuries happened because of the workplace or from life outside the workplace. To determine whether or not certain benefits should apply, administrative judges consider medical evidence and expert testimony from treating and reviewing physicians. In Bennett vs. Northeastern University (Board No. 038550-08), a self-insurer/employer appealed a decision in favor of an HVAC technician who was awarded temporary total incapacity benefits, followed by permanent and total incapacity benefits.

The injured employee worked as an HVAC foreman and later as an HVAC technician at a university. The employee originally claimed he suffered from a pulmonary injury arising out of his job, due to exposure to chemicals used by other workers stripping the floors in a locker room, as well as exposure to chemicals, solvents, dust, and fumes he was naturally exposed to in his own work as an HVAC technician. The judge at the original hearing heard from the injured employee’s primary care physician and treating pulmonologists. The judge also heard from the independent medical examiner used in accordance with these proceedings.

After hearing the testimony and reviewing the evidence, the judge found that the employee required medical treatment for breathing issues as a result of his exposure to the stripping materials. The judge noted that these substances aggravated a pre-existing breathing condition and that he will likely be unable to perform any HVAC work again in the future. Since the employer did not raise any issues with causality, the judge relied on the employee’s witnesses, since he only needed to prove “as is” causation. The employer objected to this assessment, arguing that the employee did not prove the employer’s liability for a work-related injury, that the condition was caused by the workplace, nor that he was truly disabled and incapacitated. The employer pointed to the failure of the judge to resolve factual conflicts in the testimony related to the employee’s proximity to the location where the floor stripping was performed, the day the employee fell ill, and the day the employee left work.
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Injured construction workers likely know they are entitled to workers’ compensation benefits from their immediate employer. What they may not realize is the possibility to receive damages from a general contractor through a negligence suit. As discussed previously on this blog, workers’ compensation, created through statute, is available for employees to quickly receive needed funds for care and lost wages, and for employers to avoid the cost of suit and lost time.

Construction and renovation projects, however, often involve several different parties on site. One of those parties can cause an injury. Unlike workers’ compensation, which does not require negligence to be shown, a general contractor’s failed duty to the injured worker must be shown. Massachusetts case law has established that a general contractor can assume a duty of care for a sub-contractor’s safety if they retain control of her or his work. This must go further than the general right to inspect, make recommendations, or set schedules. Control, in this situation, must be the right to control the methods by which the work is performed.

In Yepes vs. C.H. Newton Builders, Inc. (15-P-375), the injured worker appealed a summary judgment entered in favor of the general contractor, where the judge discounted two affidavits submitted by co-workers, relaying the role of the general contractor on the job site. The injured worker was part of the subcontractor’s team who was helping to strip and refinish the wood work in a home. The worker fell off scaffolding and fractured his ankle. He filed suit against the contractor, claiming that the general contractor failed to keep the premises safe. As part of his suit, the injured worker included two affidavits submitted by coworkers, which relayed that the general contractor was in charge of the worksite and all the trades, giving instructions as to how the work should be performed.
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In a recent decision, Insurance Company of the State of Pennsylvania vs. Great Northern Ins. Co. (SJC-11897), the Massachusetts Supreme Judicial Court clarified what happens if there is more than one workers’ compensation insurance policy that covers a workplace injury. In this case, a Massachusetts employee was catastrophically injured in an automobile accident while working abroad on a business trip. The employer had purchased different workers’ compensation insurance plans from two different insurers. However, the employer chose to give notice of the accident to only one of the insurers, and it initially told the other insurer nothing of the accident. The first insurer eventually learned that there was a second insurer and sent a letter to the second insurer, giving notice about the claim and requesting contribution. The second insurer declined, pointing to the employer that advised them that only the first insurer was going to be used.

This case went through the federal court system for a time, which ultimately sent the question to the commonwealth’s appellate system, asking whether or not the employer can choose the insurer it wishes to use. The Supreme Judicial Court answered “no,” stating that the insurer paying for the loss has a right to equitable contribution from the co-insurer to make sure that they cover their share of the loss. The court felt that the employer cannot prevent the insurer covering the costs from seeking equitable contribution.

In its analysis, the court looked at case law that shapes the doctrine of equitable contribution. Over time, courts have determined that when multiple insurers provide coverage for the loss of an insured, any insurer that pays more than its fair share of the costs of the defense and indemnity can seek a proportionate contribution from the other co-insurers. This doctrine applies to insurers that share the same type of obligations on the same risk. Case law also states that the insurance companies do not have to have agreements with each other for this obligation to exist. The right to equitable contribution exists solely with the insurer, and it does not rely upon the insured.
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In two recently released companion cases, DiCarlo v. Suffolk Construction (SJC-11854) and Martin v. Angelini Plastering, Inc. (SJC-11853), the Supreme Judicial Court reviewed whether or not liens could be placed on the recovery the injured worker receives that was paid to him or her in employee benefits. As discussed previously, the statute providing workers’ compensation benefits to injured employees exists so that the worker receives quicker payments for medical care and lost wages. Employers, by providing insurance under the law, are generally immune from suit so that the business’ time and resources are not spent defending personal injury actions. Injured workers, however, are allowed to sue at-fault third parties to recover damages incurred.

In these cases, two workers were injured during the course of their respective employments. Both men reached settlement agreements with third parties for damages, including pain and suffering, which were paid after they received workers’ compensation benefits provided by their employers’ insurer. Both cases involve the same insurer. One employee was an electrician who experienced ongoing physical and emotional suffering from a back injury. The other employee was also an electrician who suffered ongoing pain and mental anguish. Both filed suit against the construction site at which they worked, as well as contractors and subcontractors.

The insurer sought reimbursement under Massachusetts G. L. c. 152, § 15, which allows an employer to seek reimbursement if they covered costs for the employee even though another party was responsible for the employee’s injuries. In one case, the Superior Court Judge rejected a settlement offer that excluded the attachment of a lien to the pain and suffering damages, which made up 35% of the settlement. The judge in that case felt the lien attached to the whole recovery. In the other case, the opposite was true, and the judge allowed the settlement to go through, excluding any attachment to awards like pain and suffering, which was 30% of the settlement award. In this case, the insurer appealed. In the prior case, the injured employee appealed.
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During the course of your career, you are likely to have several different jobs under different employers. Injuries can occur at any of these positions, particularly ones that may exacerbate older injuries sustained during previous employment. Workers’ compensation insurance companies have often disagreed on who is responsible for paying benefits, especially permanent benefits. To assist with this scenario, the commonwealth’s workers’ compensation case law created the “successive insurer rule,” which requires the insurer at the time of the most recent injury that bore a causal relation to the incapacity to compensate the worker for her or his injuries.

The Massachusetts Reviewing Board recently issued a decision in Griffin vs. Travelers Painting Co. (BD Nos. 037293-11 and 034762-13) that reviewed who was ultimately responsible for the temporary total incapacity benefits and permanent partial incapacity benefits paid to a painter who suffered serious knee injuries over the course of his work life. The painter first suffered injuries to both his knees when he fell out of a truck, and he re-injured his knee 11 days later. The employer’s insurer paid him temporary total incapacity benefits for about five months. The painter then worked for another residential painting company that had a different workers’ compensation insurer. The painter was able to work with some pain in each knee, having “good and bad days.” While working for the second employer, the knee pain increased due to the climbing and kneeling associated with the job.

After the painter was laid off, he underwent a second knee surgery that successfully reduced his knee pain in great measure. He filed for benefits from the first employer’s insurer, which then sought to add the second insurer. The first insurer felt the worsening injuries were related to work the painter performed at his second job. Much medical evidence was reviewed by the Administrative Judge at the hearing, who adopted the testimony of the treating surgeon that the knee injuries were caused by the original accident at his first job. The first insurer appealed, and the Reviewing Board took up the appeal to consider whether or not the successive insurer rule was violated.
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In a recent Reviewing Board Decision, Harris vs. Plymouth County (BD. NO. 005307-06), the Reviewing Board looked at whether death benefits under Massachusetts workers’ compensation laws should have been awarded to the spouse of the deceased employee. The employee worked for a self-insured employer as a case-worker when he suffered work-related neck and back injuries. The injuries were sustained in the spring of 2006, and he died from acetylsalicylic acid toxicity caused by excessive aspirin ingestion four years later.

His wife sought dependency and burial benefits following his death, which were denied by the employer. The judge ordered the burial and funeral expenses to be paid but denied the death benefits. At the conference following the wife’s appeal, the wife argued that the employer’s failure to appeal the death benefits, which can only be awarded if the death is work-related, established the causal relationship for other benefits. The judge at this hearing agreed with the wife but looked more closely at whether she qualified as the employee’s dependent in whole or in part, and what amount of benefits was due.

The wife had been living separately at the time of the employee’s death, but they had only separated the month prior. The judge felt, based on the evidence, that the wife had been living apart for a justifiable cause and awarded her death benefits of $723.54 a week from the date of his death and continuing. The employer appealed the decision, but they focused on the judge’s refusal to allow them to litigate the question of whether or not the death was caused by the work-related injury. The employer’s appeal did not challenge whether the wife was a dependent at the time of the employee’s death.
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