Articles Posted in Workers’ Compensation

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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Workers’ compensation benefits include permanent and total incapacity benefits (Ch. 152, Sec. 34A of the Massachusetts General Laws), which are awarded to those who have sustained injuries so severe they prevent an employee from ever working in the same capacity and line of work. These benefits can be issued after one accident, but they can also be given after a series of workplace accidents over the course of an employee’s career. As discussed in previous posts, employers and insurance providers may contest whether or not an employee qualifies for the benefits claimed. However, if any bona fide benefits are claimed and are not paid, the injured employee may be entitled to Sec. 50 benefits under the workers’ compensation statutes. This can be seen in the recent Board Decision of Comeau v. Enterprise Electronics.

Over 20 years ago, a worker sustained a herniated lumbar disc at the L3-4 level while on the job. He was given temporary total incapacity benefits until he returned to work, and then partial incapacity benefits when he did return to work for several more months. The injured worker continued to work with back pain until nearly two years after the first accident, when he slipped and fell after climbing onto the wet running board of a truck. He then suffered another herniated lumbar disc at the L4-5 level and was taken out of work for the ongoing back pain. The injured employee has not been able to return to work since then.

After the second accident, several motions were brought by both the injured employee and the insurance company, with several hearings scheduled and rescheduled. Seventeen years after the accident, the employee filed for benefits against both insurers that provided coverage to his employer over the course of that time. One insurer denied disability and argued that the other should be responsible for benefits from a date after the second accident as the successive insurer. The judge rendered a decision that ordered the second insurer to pay the Sec. 34A benefits and the medical treatment from the second accident. The first insurer was required to pay for the medical treatment related to the first accident and for penalties due to the late and nonexistent payments for other benefits.
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To recover damages after a Massachusetts accident happens at work or in a public place, four things must be shown: duty, a breach of that duty, causation connecting the breach to the injuries, and the cost of those injuries. The first element of a personal injury case, duty, exists if the alleged at-fault party owed a duty under the law to the person who was injured. If the at-fault party fails to uphold their duty, like a reckless driver or a grocery store that left a spill on the floor, the party could be liable to anyone who suffers an injury that resulted from the breach. Once the injury is connected to the failure to uphold the duty by law, the costs associated with the injury must be shown to recover damages.

In Stefflin vs. Pinncon, LLC (14-P-1114), an injured construction worker pursued damages against the general contractor and first-tier subcontractor. The worker alleged that the contractor and subcontractor failed to provide a safe work environment. The injured worker was a drywall finisher and taper, but the other parties required him to use a scissor lift instead of a knuckle boom lift to access certain parts of the ceiling. The worker said he injured himself while using the scissor lift when he reached over the railing with the sander and heard a “pop,” suffering abdominal pain. He later underwent surgery for a large ventral hernia and suffered complications from that and additional surgeries. The worker could not return to work and claimed permanent disability.

At trial, the judge excluded results from an Independent Medical Examination (IME) from the evidence of the injuries the worker suffered. The judge ruled that they were merely cumulative of the expert and medical evidence. When the case went to the jury, the jury determined that the general contractor and subcontractor did not fail to provide a safe work environment and therefore were not negligent. Because of this finding, the jury found for the defendants, and the injured worker did not recover damages from the general contractor and subcontractor.
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When a workplace accident completely removes your ability to work, you may qualify for permanent and total incapacity benefits through workers’ compensation. These are also known as § 34A benefits. In Downing vs. Davenport Realty Trust (Bd. No. 026102-11), the board reviewed a decision awarding an employee §§ 13, 30, 34, and 34A benefits. In this case, the insurer objected to the finding of the administrative judge, who relied upon the testimony of the injured employee and the testimony of a doctor who examined him.

The employee sustained a work-related L4-5 disc herniation. He was 63 years old at the time of the hearing, and he had spent most of his work life at unskilled to semi-skilled employment in physically demanding occupations. During the administrative hearing, the injured worker testified that he had previously been able to do heavy work, including lifting up to 200 pounds, but now he had trouble lifting as much as 10 pounds. The judge made a formal finding that the employee’s pain disturbed his sleep and that his herniated discs were related to an injury sustained at work.

The judge did stop short of adopting the examining doctor’s opinion on the extent of the injured worker’s disability. Instead, she relied upon a separate testifying doctor’s opinion, which concluded that he was totally disabled from work. The last thing considered was the testimony of a vocational rehabilitation expert, who opined that the injured employee could not earn wages due to his work-related injury. Lost wages were awarded for a year, and § 34A benefits were awarded following that period.
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After a workplace accident, an injured worker can file a claim for lost wages in addition to payments for medical expenses. The Commonwealth’s statute provides a formula for calculating the wages, which incorporates the “average weekly wage” (AWW). These are known as § 34 benefits. In a recent board decision, Harris v. Mass. Gen. Hosp. (Bd. NO. 033040-11), an injured nurse sought to increase her § 34 benefits when she sustained a fractured kneecap after slipping on some wet flooring. She had been promoted and was scheduled to begin her new position around the new year, which included increased wages. Her injury occurred right before she was scheduled to begin her new position.

Immediately following the accident, the nurse sought lost wage benefits. She was granted them, based on the wage she was making prior to the fall. The injured nurse then filed a claim six months after the accident to obtain a retroactive readjustment and reinstatement of her § 34 benefits, using the new salary that would have begun two weeks after the accident. The judge awarded her the higher amount, concluding that the law provided him the flexibility to calculate the AWW using a wage that would have been earned during the time following the accident. The hospital, who was self-insured, appealed the decision.

The reviewing board agreed with the hospital’s argument that the AWW is not calculated based on future wages, even if they are “certain” in this case because the injured nurse was already promoted to a position with a known wage. The reviewing board analyzed the history of prior cases and decisions, which have used a number of ways to calculate future wages, but only wages made before the accident. Examples included using four weeks of past wages, using two weeks of past full-time wages, and even using just one day of full-time wages when an employee changed from part-time to permanent full-time on the day of the accident. The board concluded that Massachusetts law allows for all types of full-time wages to be considered, but only if they had been earned prior to or at the time of the accident. The board felt that the definition of the AWW could not be stretched to include wages that have not yet been earned.
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