Articles Posted in Workers’ Compensation

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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In Massachusetts, an injured worker can receive workers’ compensation benefits for a work-related injury that aggravated a pre-existing condition as long as the injury is a major cause of the disability. This differs from the requirements for psychiatric injuries under G. L. c. 152, § 1(7A), which place a higher burden on the injured person to show the workplace injury was the predominant contributing cause. To determine whether or not the work-related injury rises to this standard, the Administrative Judge (AJ) hears from medical experts who have either examined the worker or looked at the injured person’s records. An award of benefits hinges on whether or not there is sufficient evidence to support the claim of psychiatric disability.

In a recent case (16-P-837), the Appeals Court reviewed an appeal of a decision of the Department of Industrial Accidents (DIA) reviewing board, which reversed an AJ’s decision in favor of the injured worker.  The board determined the injured woman did not show the employment-related event was the predominant contributing cause. The injured worker appealed, arguing the decision should have been affirmed, or in the alternative, recommitted to the AJ for additional findings. The claim originated from the worker’s repeated encounters with clients through the Department of Transitional Assistance (DTA) who were verbally hostile and threatening. The woman sought psychiatric treatment in 1997 after working there for several years, but she had a stressful incident in 2013 when she was threatened by a client during an interview. The worker sought help from a supervisor but received no support. Paralyzed by anxiety, the injured worker did not return to work.

Prior to her employment, the woman suffered physical and emotional abuse from her mother. The woman did not have any family support, nor any mental health treatment during this period. During the hearing with the AJ, the independent medical examiner testified that her childhood experiences and experiences at work contributed to her diagnosed mental health disorders. The doctor affirmed that she was medically disabled and that the cause of this disability stemmed from the combined experiences. The doctor testified that after several years of traumatic incidents, the threatening client at work in 2013 was the “proverbial straw that broke the camel’s back.” In its review, the board concluded this was not enough to show the work-related incidents were the predominant cause of her disability.

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Injured employees may receive compensation beyond the emergency room bill and calculated wages under the Workers’ Compensation Act. They may also receive payments for prescriptions and therapies for persistent medical conditions. In Magraf’s Case (16-P-364), the appellate court reviewed an award of prescription drug coverage and reimbursement for medical appointments under G. L. c. 152, §§ 13(1) and 30 following a lump sum settlement for an injury. The insurer raised an affirmative defense that the employee had a pre-existing condition, but the Administrative Law Judge chose to order payment anyway, citing the opinions provided by the Independent Medical Examiner (IME). The Reviewing Board upheld the ALJ’s determination, and the following appeal ensued.

The existence of a pre-existing condition does not prevent compensation for a work injury. Massachusetts’ General Laws allow for the compensation of an injury as long as the work injury was a major cause of the disability. It does not have to be the predominant cause of the disability. An employer or insurer may raise a pre-existing condition as an affirmative defense to the payment of benefits, but they bear the burden of showing the pre-existing condition is not covered. When assessing the Reviewing Board’s decision, the Appeals Court looks at whether or not the decision was supported by substantial evidence, whether or not the Board made an error of law, or whether the Board issued a decision that was arbitrary and capricious.

The insurer argued that the ALJ failed to make findings regarding the nature of the injured worker’s pre-existing condition. The ALJ felt the issue of causation had been fully litigated and satisfied by the lump sum agreement. To avoid re-litigating causation, the court ruled the insurer must meet a new burden of production. The Board agreed with the judge’s assessment, determining that the judge rightfully adopted the IME’s opinion that the work injury was still a major cause of the injured worker’s disability and need for treatment.

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After a workplace injury, a worker is entitled to receive a weekly wage that’s calculated by plugging the worker’s earnings into a formula under Massachusetts G. L. c. 152, § 35D. A partially incapacitated worker may receive 60% of the difference between the average weekly wage before the injury and the weekly wage the worker is capable of earning after the injury. This is not to exceed 75% of the amount she or he would receive if deemed totally incapacitated. A recent Appeals Court case, Lavalley’s Case (16-P-46), assessed an earning capacity calculation for a worker suffering from bilateral carpal tunnel syndrome.

In this lawsuit, the administrative law judge (ALJ) initially ordered the insurer to pay $235.43 a week in partial benefits. However, the order did not include the calculation under G. L. c. 152, § 35D, and both parties appealed to the Reviewing Board. After the Reviewing Board remanded the lawsuit down to the ALJ for further findings of fact, the ALJ found that the insurer was only required to pay $121.91 from the day the injury began on June 1, 2011 to December 31, 2014. The insurer was then required to pay $97.91 from January 1, 2015 forward. The worker appealed this order to the Reviewing Board, which affirmed the ALJ’s calculation. The injured worker then appealed the Reviewing Board’s decision.

In its review, the Appeals Court first established that the decisions of the Reviewing Board are not overturned unless there was no evidence supporting the ruling, or the decision was tainted by errors of law. At the initial hearing, the ALJ made a finding that the injured worker could perform light work and granted her the maximum amount of weekly wage under the law. However, the ALJ did not attach the corresponding calculation with this finding. On remand, the judge used the same evidence that was presented at the first hearing but came to a different conclusion and ordered the lesser amount. The injured worker argued that the second order went against the first and that the ALJ was obligated to hear new evidence.

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Pre-existing conditions can complicate an award of workers’ compensation benefits. In the event a pre-existing condition occurs, General Laws c. 152, § 1(7A) only requires the new injury to be compensable if the work injury was a major but not necessarily predominant cause of the disability. A recent case (Bd. No. 10832-12) addresses what must be shown when an employee who suffered a back injury had a pre-existing condition related to a prior back injury.

The employee’s medical history began in 1991 following an injury while working at a grocery store. In 1992, the employee had surgery to relieve pressure on his spinal cord, formally known as a laminectomy. In the following year, the employee worked for a different company, performing various jobs until he was laid off in 2009. The employee was re-hired in 2011 to work on a large order using a “4-slide” machine. During this period, the employee could not pinpoint a back injury from a specific incident, but he claimed that an injury occurred while he performed repetitive work for this employer, lifting and carrying items.

At an early hearing, the judge ordered temporary total incapacity benefits but did not order the insurer to pay for the back surgery. The conference order was appealed by both parties, and the employee was seen by an impartial medical examiner. This evaluation was the only medical evidence submitted. The judge determined at the hearing that the employee sustained an injury between August 2011 and March 2012, and the injury sustained by the current employment, combined with the pre-existing injury, caused or prolonged treatment and disability. The judge found that the injury was a major but not necessarily predominant cause of the injury and ordered the payment of temporary and permanent total incapacitation benefits. The judge also ordered the payment of medical expenses, including those for the employee’s back surgery in 2013.

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One workers’ compensation benefit that may not be as well known is the benefit provided for harm to a worker’s mental health. Like physical injuries, these injuries must be caused by an accident that occurred in the workplace or during the performance of work-related duties. The Reviewing Board decision of O’Rourke v. New York Life Insurance (Bd No. 012706-11) reveals the considerations an ALJ must make when determining whether or not to award medical and total incapacity benefits for injuries that affected both physical and mental health.

In this lawsuit, the injured worker was a vice president of marketing and held a Master’s degree in Science and Administrative Studies. She was injured when a magnet weighing half to three-quarters of a pound fell from a door jamb onto her forehead. The woman was taken to the hospital and diagnosed with a concussion. Her injuries produced severe headaches and tingling along the left side of her nose and face, around her jaw, and up the other side of her face. The woman additionally suffered lower back and neck pain. She returned to work within a week part-time, and eventually she returned full-time. However, the pain, combined with depression and anxiety, prevented her from concentrating and fully functioning at her job.

The injured worker attempted various schedules, both part-time and full-time, while also seeking treatment for her numerous injuries. Two surgeries were performed in order to reduce the headaches and pain in her jaw. While the surgeries were partially successful, they failed to fully remove the pain in her jaw and teeth. After three years passed, the worker’s surgeon opined that she was unable to continue working. The worker claimed partial disability benefits from August 1, 2013 to September 15, 2014, and then total disability from September 16, 2014 onward. The judge ordered that the benefits be paid based on her earnings from August 1, 2013. All parties appealed.

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Massachusetts General Laws c. 152, § 11A(2) of the Workers’ Compensation Act states that an impartial medical examiner is to be used whenever there is a dispute within a claim or a complaint over medical issues that is the subject of an appeal. In order to offset the cost of the medical examination, the injured worker must submit a fee equal to her or his average weekly wage in the Commonwealth at the time of the appeal. A failure to do so can quash the appeal, as seen in the Reviewing Board decision of Saini v. Jeffco Fibers, Inc. (Board No. 044894-91).

In this case, the employee had a work injury in 1991 and settled four years later for $145,000. Eleven years after the settlement, the injured worker filed a claim for the payment of medical bills, which was denied by the ALJ. A timely appeal was filed but was not accompanied by the appeal fee. Notice was sent to the claimant’s attorney, but the fee remained unpaid. A month after the notice of the overdue fee was sent, the case was withdrawn. The injured employee’s attorney complained after the withdrawal, but the ALJ kept it in place, pointing out that the impartial medical examination was not waived by the insurer. A second and third claim were filed but were also withdrawn. Eventually, at another hearing, an ALJ formally denied and dismissed the claim for medical benefits, tying it back to the original submission and pointing out that the failure to pay the fee amounted to an acceptance of the order under General Laws c. 152, § 10A(3).

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During the course of a career, the employing company may re-organize different aspects of its business, including its workers’ compensation insurer. Workers’ compensation law provides for this situation, in the event that a long-term worker suffers an ongoing injury with another injury. The successive insurer rule requires an insurer to pay for the compensation of all of the injuries that a worker suffers, even if it was not the insurer when the original incident or ongoing injury occurred. As long as the recent injury has a causal relation to the disability claimed, the insurer must cover the risk. The insurer must take the employee “in the condition in which he finds him,” so the provision of benefits is streamlined and expedited.

In Linton v. G.P.C. International (Bd. No. 035380-10), the second insurer appealed a decision granting medical benefits for a repetitive injury to an employee’s right shoulder. The employee worked for the employer since 1996, performing repetitive, heavy lifting of 75 to 100 pounds as a paper processor and machine operator.  He began having pain in 2003 in his right arm, which resulted in physical therapy. Seven years later, the worker returned for shoulder pain care and could not work for two months. During this period, he received weekly workers’ compensation benefits. The first insurer paid for medical expenses, including physical therapy and a TENS unit he still uses.

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As one nears retirement, many decisions await from family to financial matters. A recent federal appellate decision, O’Shea v. UPS Retirement Plan (No. 15-1923), reveals the importance of careful estate planning alongside serious illnesses or retirement. In this case, an employee, diagnosed with cancer, died one week before his official retirement date but after his final day of work. Following a diagnosis in the previous year, the employee originally planned to retire at the end of the calendar year. The employee met with a human resources supervisor, who advised him to take his accrued time, which pushed back his official retirement date. This advice given was standard practice, and the HR supervisor had no knowledge that he was terminally ill.

Following the submission of his retirement application, the employee was told that his annuity start date would be March 1, 2010 after his official retirement on February 28, 2010. The employee chose the Single Life Annuity with 120-Month Guarantee and named his children as the beneficiaries. The Guarantee allowed him to receive payments of over $4,000 each month for 10 years. If he died during this term, his listed beneficiaries would receive the payments. Neither the HR supervisor nor the retirement benefits applications made it clear that he needed to live until the annuity start date on March 10, 2010 for the guarantee to be realized. The employee was unaware that he risked forfeiting his payments by delaying the retirement date.

While the retirement application did not explicitly lay out the requirements in the body of the application, it did note that the benefits plan designations are subject to the terms of the Plan. The Plan states that payments can be made to the beneficiaries if the participant dies before the first payment but after the annuity starting date. The only exception listed is for a spouse or domestic partner, who would be entitled to receive a pre-retirement survivor annuity. In addition to the annuity plan, the employee also participated in the Special Restructuring Program, which provided a year’s compensation in exchange for signing a release of claims and retiring. The employee accepted this with his attorney on February 12, 2010 for a single pre-tax payment of $98,800. The release included his employer and “all related companies,” which included the benefit programs, as well as any claims of which he might not know.

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