Articles Posted in Workers’ Compensation

Under Massachusetts General Laws, an injured worker with serious, catastrophic injuries can qualify for permanent and total incapacity benefits. If an injured worker is still unable to work in any capacity after reaching maximum medical improvement, where he or she is unable to physically improve or recover even with additional surgery, that worker is entitled to benefits under the Commonwealth’s Workers’ Compensation Act. In King v. City of Newton, the Reviewing Board looked at an appeal filed by a self-insured employer who challenged the award of permanent and total incapacity benefits, disfigurement benefits, and reasonable and necessary medical expenses that included a motorized chair lift.

In this appeal, the focus centered on the testimony of the medical examiner and the Workers’ Compensation Judge’s (WCJ’s) method of issuing findings and accepting the evidence presented. The injured employee worked in the school cafeteria, which is a party of the Massachusetts’ town’s school system. She slipped and fell while clearing tables, hitting one of the tables and harming her right leg. She was seen by the school nurse, who applied ice to her leg, and used a cane the next day to get around. The injured school worker was then told by her supervisor to seek medical treatment. She followed up and was diagnosed as suffering from a sprained ankle and bruising of her right knee and lower left ribs. The city then began to pay her temporary total incapacity benefits.

Sixteen months after these benefits, the self-insured city filed a complaint to discontinue the temporary benefits based on the report of the employer’s examining physician. The WCJ heard that motion in addition to the injured employee’s motion for the employer to pay for a motorized chair lift. At this hearing, the judge granted the request regarding the motorized chair lift and denied the employer’s request to discontinue weekly benefits Following this hearing, the employer appealed and the injured worker was examined again, this time by an impartial medical examiner. After receiving the impartial examiner’s report, the employer moved for a finding of inadequacy regarding the impartial examiner’s report.
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When a Massachusetts worker faces the pain and inconvenience of an injury, the frustration over the inability to work can sometimes be overwhelming. Aside from facing lost wages during the recovery period, the employee may face the daunting reality of learning a new job skill if the injury was severe enough to prevent a full return to the work he or she had previously been able to do. Learning a new trade and potentially changing one’s occupation completely is challenging enough after a serious injury, but it can become a more complex decision if the worker suffers a series of moderate injuries over a period of time instead of catastrophic injuries from one accident.

In the Commonwealth of Massachusetts Reviewing Board Decision, McDonald v. Brand Energy Services, Inc., the Board affirmed the award of Section 34 benefits (Temporary Total Incapacity) for an injured employee. The employee was a union laborer who had worked and been injured in industrial accidents over the years, dating back to 1991. The injured employee suffered back injuries four times prior to the immediate case on appeal. The employee acquired lump sum settlements in each case, and returned to work three years after the fourth accident in 2001. He did not work the heaviest jobs but did push through daily moderate back pain to complete other tasks.

In 2012, the employee sustained another back injury when a piece of staging was dropped by a colleague as they were loading a truck together. The employee was approved for light work following the accident, but he did not return to work. When he brought his application for benefits, the insurer alleged that by returning to work after several back injuries, he was committing serious and willful misconduct that precluded his ability to receive workers’ compensation for this injury. The workers’ compensation judge at the initial hearing ruled against the insurer, making a finding that the employee did not commit willful or serious misconduct and did not misrepresent his injury, since he advised he could not perform the heaviest tasks, like jackhammering. The Reviewing Board also did not believe that the employee’s return to work was misconduct, and it found that the injury was the result of the other employee hitting him, and it was no fault of his own.
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Massachusetts workers’ compensation laws were enacted to provide a quicker route for injured workers to receive benefits, while shielding employers from time-consuming litigation. An injured worker does not have to prove negligence, just that he or she suffered an injury during the course of employment. Claims however, are not always granted by the workers’ compensation insurance, nor are they always awarded by the Workers’ Compensation Judge (WCJ). Sometimes, in order to obtain benefits, an appeal must be filed to the Workers’ Compensation Reviewing Board.

Injured workers may be surprised to learn that they can also receive compensation if they have suffered from negative changes to their mental and emotional health. These are known as psychiatric injuries. They can form the basis of a claim alone, but they typically accompany a physical injury claim. Frequently claimed conditions include depression and anxiety.

An opinion was recently published by the Board that partially reversed a denial of benefits and recommitted the case for another look at the injured employee’s claim for permanent and total incapacity benefits. The injured worker suffered an industrial accident where he suffered injuries to his shoulder and psychiatric injury. The employer paid temporary total incapacity benefits until they were exhausted, but it filed to discontinue them when the injured worker filed for permanent total incapacity benefits.
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When accidents happen at the workplace, the injured person has no control over the severity of the injury and whether or not he or she suffered from other medical ailments independent of the workplace. Pre-existing conditions often present large hurdles to obtaining workers’ compensation benefits. While fault or negligence does not have to be shown, the injury must have occurred while furthering the business of the employer. Complex medical records and expert testimony from physicians or other medical professions may be necessary to show the origins of the injury and what type of medical treatment will be necessary to make the employee whole from the work-place accident.

In Lastih v. Erickson Retirement Community, a bus driver for a retirement community injured her lower back while lifting a resident’s walker. After a denial by the insurance company for benefits, she sought a hearing in front of a Workers’ Compensation Judge, where the insurance company claimed that she had pre-existing conditions as its defense. The judge ruled in favor of the injured bus driver, relying on testimony from the impartial medical examiner, who opined that she sustained lumbar and sacroiliac (lower back) strain that aggravated the pre-existing degenerative joint and disc disease in her spine. The judge found her to be totally incapacitated and ordered benefits. No party appealed this decision.

Two years later, the insurer filed to have the benefits discontinued, which was denied. The insurer then had another impartial medical examiner assess the injured bus driver. The insurer withdrew the appeal following the report, and the employee filed for total, permanent incapacity benefits. After an additional examination, reports, and appeals, the judge awarded total and permanent benefits. The judge found that the employee’s disability was casually related to the injuries she sustained when lifting the resident’s wheelchair onto the bus.
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A slip and fall in Massachusetts can lead to injuries ranging from minor cuts and scrapes to serious head, spine, and back injuries. Slip and fall injuries can occur anywhere outside the home, including shopping centers, public sidewalks, and the workplace. If civil action is taken in a slip and fall accident, the injured person typically files a personal injury suit. However, when the accident occurs in the workplace, a workers’ compensation claim must be filed with the employer, and monetary payments are handled by the employer’s workers’ compensation insurance. The recovery covers past and future lost wages and payment for medical expenses and doctors’ visits.

Insurers will often try to limit the amount of payment made to an injured worker and may utilize the appellate process to protest awards given by a workers’ compensation judge or review board. In a recent Reviewing Board Decision, Sullivan v. Centrus Premier Home Care, a recommitted decision was affirmed in favor of the injured visiting nurse. While the injured nurse was visiting a patient, she sustained injuries to her back, knee, and hip in a slip and fall accident.

At the underlying hearing, the judge, when finding for the injured nurse, relied on the nurse’s testimony of complaints of pain and physical restrictions, as well as the medical opinions of one of the physicians who testified that she sustained a traumatic strain to her lumbar spine that required surgery. The injured nurse had a previous condition, but the doctor opined that the work accident contributed to 50% of her condition. While the doctor ruled that the treatment for the spine was reasonable, he determined that the peripheral joint disease, peripheral arthralgia, neck pain, and right knee pain were unrelated to the work injury. The judge adopted these medical findings and awarded recovery for the spinal treatment and surgery. The Judge also found that the nurse was temporarily and totally incapacitated from gainful employment.
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In Massachusetts personal injury cases, an injured party must show that the other party owed a duty to them, that the party failed to uphold that duty, that the failure resulted in an injury, and the type and amount of damages suffered as a result of the injury. When an injury occurs on the job, proof of negligence or fault is not necessary for recovery, but proof of causation that the injury resulted from the workplace is required.

The Massachusetts Reviewing Board issued a ruling last month in Stephan A. Dugas v. Coca-cola that looked at whether or not an employee’s hip conditions were work-related. The employee had worked from 2003 to 2009 as a merchandiser and bulk account manager, the duties of which included stocking displays, shelves, and coolers, and moving products by lifting, carrying, pushing, and pulling carts with a non-electric hand jack. In 2009, the man sought treatment for pain in his hip and began to receive epidural steroid shots to relieve the pain. Eventually, the man received a diagnosis of congenital hip dysplasia with degenerative changes in his left hip and arthritis and osteophytes in his right hip.

The Reviewing Board Decision pointed out in its recitation of facts that the employee did not mention the hip as a work-related injury to either physician when he initially sought medical treatment. The Reviewing Board also addressed the employee’s history of playing football in high school and playing men’s field hockey three times a week until he injured his right knee in 2002. The employee filed for workers’ compensation and was denied, and he pursued compensation through a hearing. The judge, after hearing testimony from doctors, upheld the denial of payments for medical treatment. The judge ruled that the employee failed to show that the injury was the result of an industrial accident that occurred while working for his employer.
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