Massachusetts Workers' Compensation Lawyer Blog
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quilt patternThe Massachusetts Court of Appeals made a ruling recently in a workers’ compensation case that sheds some light on what happens when new evidence regarding workers’ compensation injuries comes to light decades after the incident occurs.

In the case, In re Baillargeon’s Case, Mass. Ct. App. (2014), the employee Dorothy Baillargeon suffered an injury in 1978 during the course of her duties as a nurse at a Commonwealth hospital, when a patient kicked her in the left temple region of her head. As a result of emotional and physical symptoms, the employee pursued a workers’ compensation claim. The impartial medical examiner who examined her in 1984 concluded that the accident resulted in a contusion of the employee’s left temporal lobe, and that it caused post-concussion symptoms including hostility, emotional dysfunction, depression, and more. As a result, he concluded that she had no capacity for performance of employment duties. A psychologist concurred in the prognosis and classified the employee’s resultant incapacity for employment as total and permanent. She was thus deemed entitled to workers’ compensation benefits.

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stairsIn a recent federal case, Cavicchi v. Raytheon Company, the district court had before it several issues arising out of an employment-related injury, which implicated the exclusivity of workers’ compensation benefits.

The case arose out of an incident in which the employee fell on a staircase at work and then went to the doctor. The employee then returned to work the next day. However, instead of being able to work, his employer told him that he was required to undergo a blood test, and he was suspended from work pending an investigation of some sort.

The employer additionally referred the plaintiff to two doctors on two separate occasions, and at each appointment, the plaintiff spoke to the doctors but was not examined physically. The employer then placed the employee on long term disability pay, roughly half of his normal salary. The employee consulted with his union director, who informed him that the employer may have used the purported disability as a pretense in order to suspend the plaintiff, since under his contract, the employer could not terminate the employee without cause.

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pillsThe Appeals Court of Massachusetts recently issued a brief decision in a workers’ compensation case, In re Okraska’s Case, Mass Ct. App. (2014), which may become problematic for employees living with back issues.

The case does not contain much factual information, but based on the discussion in the opinion, it seems the employee filing for the claim had some sort of underlying back injury or issue prior to the incident that occurred at work for which he was filing a claim.

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A recent decision by the Appeals Court of Massachusetts in In re Kelbe’s Case, Mass. Appeals Court (2014), offers a fairly comprehensive overview of the concept of the “Going and Coming Rule” in workers’ compensation cases, which precludes financial recovery in employee personal injury cases.MIT building

The opinion began with a review of the general rule that workers’ compensation is not generally available to compensate employees who are injured during the course of travel to and from work. As stated in a landmark case on the matter, Chernick’s Case, 286 Mass. 168, 172 (1934), ” It is now elementary that the compensation act does not extend to cover employees going to and coming from their work[.]”

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In 2011, the federal government launched a nationwide initiative with the goal of gaining states’ participation in a program that seeks to address the problem of worker misclassification. Misclassification occurs when employers classify employees as something else, such as an independent contractor. This can be a map of USproblem because independent contractors are not entitled to the same benefits as employees. Benefits that independent contractors are not entitled to receive  include workers’ compensation benefits.

Massachusetts signed a “Memorandum of Understanding” in November 2014, a voluntary non-binding agreement that it will work with the U.S. Department of Labor to reduce employee misclassification.

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first aid kitThe Massachusetts Appeals Court made a ruling in the recent case of Pagan v. Haddad, Mass. App. Ct. (2014), that illustrates the exclusivity of workers’ compensation payments under Massachusetts law.

In the case, the plaintiff employee had brought a civil suit against his employer due to an injury he sustained while in the course of his employment. At the time of his injury, the employer purportedly did not have workers’ compensation insurance for the employee, which is why he brought a civil lawsuit. (Remember, if an employee does not give an employer notice that he or she wishes to waive his or her workers’ compensation rights and retain his or her rights at common law, workers’ compensation is the sole remedy available in the case of an injury sustained during the course of employment.)

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boxThe Massachusetts Appeals Court recently reached an opinion in the case of Nguyen v. Eastern Connection Operating, Inc., Mass. App. Ct. (2014), which elucidates two potentially common issues in workers’ compensation cases:  whether classifying a worker as an independent contractor can circumvent required coverage for employees, and whether a workers’ compensation rights waiver may be valid.

In the case, the plaintiff Nguyen was hired to deliver packages for the company Eastern. One day, when he was making a delivery for the company, he was injured in a car accident. Even though the company had workers’ compensation for Nguyen, it did not submit a claim on his behalf until he filed suit against the company. In his complaint, the plaintiff argued that the company had wrongfully misclassified him as an independent contractor, that he was wrongfully denied workers’ compensation benefits, and that as a result the company was liable for his injuries.

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In a recent case, Estate of Moulton v. Puopolo, the Massachusetts Supreme Judicial court handed down a landmark decision for workers’ compensation claims in Massachusetts.

courthouseThe case arose out of an incident in which a 25-year-old female employee, who was working as a residential treatment counselor at a non-profit mental health and rehabilitation facility, was left alone with one of the facility’s residents, during which time the resident assaulted the employee and thus caused her death. Following her death, the employee’s estate brought a wrongful death action, essentially alleging that the employer was liable for the woman’s death because the employer failed to adopt proper policies to screen clients, and that as a result of this failure, the plaintiff (employee) was left alone with the client, who then killed her.

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Hasbro Employee Injured on Assembly Line Receives Benefits

When a self-insured employer appeals a decision awarding workers’ compensation benefits to one of its employees, it must at least raise its objections at the original hearing or risk losing the option on appeal. In the case at Board No. 007702-09, Hasbro, Inc., a national toy manufacturing company with a Massachusetts factory, lost a decision by the Reviewing Board of the Massachusetts Department of Industrial Accidents, at least partly because it failed to raise an objection at the hearing and tried to bring it up for the first time on appeal.20-sided-dice-2-1223173-m[1]

The employee, Maria Kiaresh, was a 57-year-old Italian immigrant who had come to the U.S. at age 13. She had no high school education and could not read or speak English. Her participation in her case required an interpreter. On May 17, 2005, while performing repetitive work on an assembly line at Hasbro’s Massachusetts factory, she felt pain in her right shoulder while “flattening bags of game chips to put into boxes. . . .” She received treatment from the company nurse and physician. In 2008, she underwent neck surgery, and in 2010, surgery on her right shoulder. Hasbro had laid her off in 2008  “due to her work restrictions from her industrial injury in 2005.” Hasbro accepted her claim and began paying her weekly benefits.

Hasbro Moves to Discontinue Benefits

On June 23, 2011, Hasbro filed a complaint to discontinue or modify the employee’s benefits. The employee moved to join her claim for § 34A benefits, which was allowed. In a conference order dated February 16, 2012, the judge denied Hasbro’s complaint but did not address the employee’s claim. Both parties appealed, but Hasbro withdrew its appeal, leaving only the employee’s § 34A claim to be adjudicated at hearing.

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Virtually all Massachusetts employees are eligible for workers’ compensation insurance coverage, even if they work for a temporary agency or are undocumented immigrants. Their survivors are eligible for workers’ compensation benefits if the worker dies in a job-related accident.

 Worker Killed While Cleaning Machinery

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A sanitation supervisor at the New Bedford, Massachusetts plant of Sea Watch International died in January 2014 when his clothing became ensnared in the rotating shaft of a clam-shucking machine’s engine while he was cleaning the device. Victor Gerena, 35, died, leaving five children without a father. Gerena had worked at the plant for 18 years. Gerena worked for Sea Watch through a temporary employment agency, Workforce Unlimited. In June 2014, both companies were cited by the federal Occupational Safety and Health Administration (OSHA) and fined a total of $44,410 for their violations. An OSHA spokesman emphasized that the fines reflected the seriousness of the safety lapses, not the value of Victor Gerena’s life. The children may receive Social Security benefits and may also receive workers’ compensation benefits, since all employers in Massachusetts must insure their workers, with very few exceptions. This requirement also applies to an “employee leasing company” like Workforce, which supplies employees by contract to other companies.

Citations For Safety Violations

The violations against Sea Watch were for the plant’s failure to implement safety protocols to protect workers while they cleaned potentially dangerous machinery. The violations included failure to provide a lockout device, incomplete lockout/tagout procedures, not conducting periodic inspections of these procedures to ensure that all requirements were being met, and failure to train all affected sanitation employees in lockout/tagout procedures. In the opinion of OSHA investigators, if Sea Watch had followed those safety protocols, Victor Gerena would not have been killed. Sea Watch’s plant on Antonio Costa Avenue in New Bedford was cited by OSHA for seven violations, and the company was fined $35,410.

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