Massachusetts Workers' Compensation Lawyer Blog
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The Massachusetts Department of Industrial Accidents Reviewing Board reversed an award of § 34A permanent and total incapacity benefits granted by an administrative law judge because the injured employee did not present credible evidence of the need for an award of these benefits.  Instead, in chef legal injurythis decision, the Board granted the employee § 35 benefits for partial incapacity.

In this case, a 54-year-old food service worker with over 20 years of experience in the industry claimed that she suffered injuries to her neck and shoulder while working as a chef.  Following her injury, her employer accepted liability for her harm, and the employee underwent two surgeries.  More than two years later, her employer moved to discontinue her workers’ compensation benefits payments.

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In a recent opinion, the Appeals Court of Massachusetts reviewed a workers’ compensation case in the matter of In re Murphy, 89 Mass. App. Ct. 1122 (2016). The employee appealed a decision of the Reviewing Board of the Department of Industrial Accidents, which affirmed an order by the administrative judge denying his claim for total benefits under G.L. c. 152 § 34A and partial benefits under § 35. In addition, the employee’s claims for interest and penalties under § 8(1) and attorney’s fees pursuant to § 13A were denied.carpal tunnel syndrome

On appeal, the employee argued that the administrative judge erred in determining that his carpal tunnel syndrome had not worsened. Specifically, the employee maintained that the causally related condition of his left wrist was definitive proof that a change in condition existed. The appeals court, however, found that the medical evidence indicated that the employee’s carpal tunnel syndrome had in fact improved since he had stopped working. As a result, the court found the administrative judge did not err in denying partial and total benefits to the employee.

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In a newly released decision, the Massachusetts Reviewing Board of Industrial Accidents addressed the issue of crediting workers’ compensation benefits paid by another state to a Massachusetts insurer. In Deborah Dean v. Access Nurses, Inc., the employee appealed from an order awarding her a closed period of § 34 total disability benefits, but it allowed her employer’s insurer to take credit for unemployment compensation disability benefits paid by the state of California.icy ground

The employee was a California resident working as a traveling nurse. While on assignment in Massachusetts, she fell and fractured her wrist while leaving her apartment for work. The employee’s injury was initially found to be noncompensable under the “going and coming rule,” which bars compensation for an injury occurring when an employee is simply going to or coming home from work. However, that ruling was reversed on appeal because the rule had no application to the employee’s situation as a traveling employee. On recommittal, the judge found the employee totally incapacitated as a result of the industrial injury and awarded benefits for the period up until the employee returned to full-time work. The judge also ordered that the insurer credit itself with any California benefits paid to the employee for the same injury. On appeal, the employee argued that the judge erred in allowing the credit for California benefits.

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In a newly issued decision, the Massachusetts Reviewing Board of Industrial Accidents considered an appeal regarding workers’ compensation benefits awarded after an untimely order of an administrative judge. In Albert Mancini v. Suffolk County Sheriff’s Department, the worker sustained injuries to his lower back, right knee, and left elbow in an altercation with an inmate. The insurer disputed liability, and a hearing was conducted in March 2011. The administrative judge issued a decision nearly three and a half years later, awarding the employee § 34 benefits immediately followed by § 35 benefits, and denying the employee’s claim for a psychiatric injury as well as the employer’s § 27 defense that the employee was injured as a result of his own serious and willful misconduct.industrial accident

On appeal, the primary issue for the Reviewing Board was whether the parties were prejudiced by the administrative judge’s failure to file a timely decision. The employee requested recommittal of the case to a new administrative judge, which would essentially result in relitigation of the nature of the employee’s injury, the causal relationship between the back injury and his need for surgery, and the issue of his disability relating to the combined back and knee injuries. The employer requested the right to contest ongoing incapacity from the day after the close of evidence, September 2011, and continuing.

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In a newly issued decision concerning workers’ compensation benefits, the Massachusetts Reviewing Board of Industrial Accidents determined whether § 36 benefits were appropriately awarded to an employee after his employer’s insurer appealed the decision. In Scott Marino v. Progression Systems (April 5, 2016), the employee was injured in a catastrophic accident while on a business trip outside the country, when the car in which he was a passenger rolled over. The employee was rendered tetraplegic and confined to a wheelchair, receiving a long course of physical and occupational therapy.wheelchair-1178247-639x452(1)

The employee filed a claim for § 13, § 30, and § 36 benefits under the Massachusetts Workers’ Compensation Act. He was awarded § 36 benefits in the amount of $297,661.79, which included $25,344 for scarring and disfigurement, as well as reimbursement for medications, mileage, and parking. The administrative judge also ordered the insurer to pay for 24-hour nursing care, seven days a week. The insurer appealed, contending that the § 36 award exceed the maximum allowable amount of $15,000 for scarring and disfigurement, among other arguments. Specifically, the insurer argued the judge erred by including payments for $10,344 for scarring in addition to $15,000 for use of a wheelchair in violation of § 36(1)(k).

Pursuant to MGLA 152 § § 36(1)(k), an employee shall be paid for specific injuries, including bodily disfigurement, in an amount that is a proper and equitable compensation, not to exceed $15,000. However, no amount is payable for disfigurement that is purely scar-based, unless such disfigurement is on the face, neck, or hands. In interpreting the statute, the Reviewing Board held that the $15,000 limitation applies to all bodily disfigurements, both scar and non-scar based, resulting from a single injury. Therefore, the Board reversed the award of $25,344, finding that the insurer’s liability was limited to $15,000 for both the employee’s use of a wheelchair and scarring.

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In some cases, workers’ compensation appeals are not resolved by the Massachusetts Reviewing Board of Industrial Accidents and must be recommitted to the administrative judge for further findings of fact. In a recent opinion, the Reviewing Board was faced with just such an appeal in the matter of William Herrera v. Mediate Management, Inc. In April 2010, the employee was working as a building janitor when he sustained a work-related injury to his right knee. The employer’s insurer accepted liability for the injury and paid § 34 total incapacity benefits for three years. Once the employee’s § 34 benefits were exhausted, the insurer paid partial incapacity benefits under § 35. The employee subsequently filed a claim seeking payment of § 34A benefits.broken-leg-xrayseries-2-1430553-639x780

At the hearing, the administrative judge found that the medical issues were complex, and the parties were allowed to submit additional medical evidence. The employee was also examined by an independent medical examiner pursuant to § 11A. The judge denied the employee’s § 34A claim, finding that the employee was partially disabled and possessed a part-time minimum wage earning capacity. The employee then appealed the judge’s decision to the Reviewing Board.

On appeal, the Reviewing Board could not determine from the judge’s findings whether the employee sustained a combination injury, or whether he had two separate conditions that did not combine with each other. Since the insurer raised § 1(7A) as a defense, the Board found that the parties were entitled to findings addressing whether it applies. As a result, the Board remanded the issue for the judge to perform the analysis required by Vieira v. D’Agostino Assocs.

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In a recent decision, the Massachusetts Reviewing Board of Industrial Accidents considered whether workers’ compensation benefits were properly awarded to an employee suffering from psychiatric injuries. In the case of Jane Sgouros v. Department of Transitional Assistance, the employee filed a claim for benefits due to a variety of mental and emotional conditions she claimed to have suffered as a result of her job as a case manager. Specifically, the employee stated that she was verbally abused by a client on December 23, 2013. She also testified that for 10 years prior to that incident, she suffered continuous verbal abuse from other clients, she was bullied by supervisors, and her requests for assistance were ignored. The employee had been receiving treatment from a psychiatrist for anxiety issues for approximately 10 years.beauty-of-sadness-describes-it-all-1513941-640x480

The employee was examined by a psychiatrist and an impartial medical examiner, who found that the employee was currently medically disabled. On the issue of causation, the doctor opined that although the employee had managed to work in spite of her history of family trauma before the December incident, it triggered a breakdown from which the employee was unable to overcome her symptoms. The administrative judge awarded the employee § 34 benefits for total incapacity, along with § 13 and § 30 benefits.

In Massachusetts, personal injuries covered by workers’ compensation include mental or emotional disabilities only when the predominant contributing cause of such a disability is an event or series of events occurring within the employment. On appeal, the employer argued that there was no medical evidence that the predominant contributing cause of the employee’s disability was an event occurring within her employment. The issue for the Reviewing Board, therefore, was whether the impartial medical examiner’s opinion that the December event “was the proverbial straw that broke the camel’s back” indicated a predominant contributing cause.

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In a newly issued decision on a workers’ compensation appeal, the Massachusetts Reviewing Board of Industrial Accidents reviewed an administrative judge’s decision regarding an employee’s claim for total incapacity benefits. In Charles Berfield v. North Shore Medical Center, the employee was working as a mental health counselor when he was assaulted and beaten by a patient in a locked ward, sustaining multiple injuries. His employer accepted liability for the workers’ compensation claim and paid § 34 temporary total incapacity benefits from the date of the injury. The employer subsequently filed a claim seeking to modify or discontinue the employee’s weekly benefits, while the employee filed a claim for § 34A permanent and total incapacity benefits.lone-stranger-1316330-639x727

At the hearing, the administrative judge found that the medical issues were complex and allowed the parties to submit additional medical evidence. Relying on the medical opinion of the § 11A independent medical examiner, the judge determined that the employee had right shoulder limitations as a result of the work injury, but the left shoulder complaints were not causally related to the industrial accident. The judge also found that the employee had a pre-existing post-traumatic stress disorder and depression that combined with the work injury to require treatment. The administrative judge discontinued payment of § 34 temporary total incapacity benefits and ordered the employer to pay § 35 partial incapacity benefits.

On appeal, the employee argued that the administrative judge ignored evidence pertaining to his left shoulder, particularly medical reports of the employee’s doctor that had been submitted at the conference and reviewed by the impartial medical examiner. The Board disagreed, finding that the medical reports at issue were not introduced at the hearing. As a result, the judge was not in error.

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In a recent case, the Massachusetts Reviewing Board of Industrial Accidents reviewed an appeal by an employer of a decision awarding workers’ compensation benefits to its employee. In Peter Bennett v. Northeastern University, the employee had worked as an HVAC foreman and technician from 2004 through 2008. The employee claimed that he sustained a pulmonary injury arising out of and in the course of his employment with the university. The employee was awarded § 34 temporary total incapacity benefits from 2008 until 2011, followed by § 34A permanent and total incapacity benefits, and medical benefits. The parties appealed.air-conditioners-1209812-639x878

The employee was examined by an independent medical examiner pursuant to § 11A(2), and since the medical issues were complex, the parties were allowed to submit additional medical evidence at the hearing. The administrative judge found that after working in proximity to an area where stripping chemicals were used, the employee’s ability to physically breathe was affected, requiring medical treatment, and the employee was no longer able to work. On appeal, the employer argued that since the judge’s findings failed to identify a date of exposure or onset of symptoms, they were insufficient to establish a date of injury.

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The Massachusetts Reviewing Board of Industrial Accidents recently reviewed an administrative judge’s decision regarding § 35 and § 36 benefits in a workers’ compensation appeal. In Donald Kendrick, Jr. v. Grus Construction Personnel, the employee sustained a work-related injury to his lower back, knee, shoulder, and elbow. The employer’s insurer paid § 34 total incapacity benefits from the date of injury until March of 2005. The administrative judge found that the employee was partially disabled and ordered the insurer to pay benefits, and that decision was subsequently affirmed by the Reviewing Board.

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The employee then filed a claim for penalties under § 8(5) and § 14, alleging that the insurer failed to make the payments ordered in a timely manner. The judge denied the employee’s claim for penalties, finding that although the employee provided an earnings report, he failed to supply wage information for the period at issue, and did not attend a scheduled § 45 examination. The judge’s decision was eventually affirmed in part and reversed in part by the Massachusetts Court of Appeals, which ordered the administrative judge to determine the payments due and owing to the employee for the period in question. On recommittal, the judge found that the employee had forfeited benefits for specific periods by failing to prove lost wages. The judge also found that the employee’s increased pain after March of 2010 was no longer casually related to the 2004 industrial accident, but was due to aggravation suffered while working for subsequent employers. The judge therefore determined that the employee did not have any causally related incapacity or permanent loss of function under § 36.

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