Massachusetts Workers' Compensation Lawyer Blog
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The Massachusetts Department of Industrial Accidents Reviewing Board recently decided an appeal involving medical benefits and mileage reimbursement under the workers’ compensation laws. In Frances Margraf v. Central Berkshire Regional School District, the employer’s insurer appealed a decision of an administrative judge awarding benefits pursuant to G.L.c. 152 § 13 and § 30. On appeal, the Reviewing Board ultimately affirmed the decision, ordering the insurer to pay for all but one of the claimed prescriptions.medication-1329267-638x530

The employee was a paraprofessional who worked with special needs students. In March 2005, she suffered an injury to her lower back and right lower extremity, including her hip, thigh, hamstring, and ankle. As a result, the employee underwent reconstructive surgeries on her right ankle. The insurer accepted liability for the diagnoses of chronic lower extremity weakness, right ankle injury, and intervertebral displacement. The employee subsequently filed a claim for § 13 and § 30 benefits for prescription medications for chronic pain, as well as mileage reimbursement for medical appointments.

The employee was examined by an independent medical examiner pursuant to § 11A. The insurer offered additional medical reports from another doctor in order to support its contention that the work injury was no longer a major cause of the employee’s disability or need for treatment under § 1(7A). Finding that the matter was not medically complex, the judge denied the insurer’s motion to allow the additional reports. The judge also found that the employee’s testimony was credible and adopted the opinion of the independent medical examiner that the requested prescriptions were reasonable, necessary, and related to the injury. As a result, the judge ordered payment for those prescriptions, monitoring of those medications, and payment of the mileage request.

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A Massachusetts court recently reviewed a decision of the Department of Industrial Accidents regarding workers’ compensation benefits in the case of Giraldo v. Dep’t of Indus. Accidents (Mass. Super. Jan. 12, 2016). In Giraldo, the primary issue for the court was whether the Department erred by dismissing the employee’s claim for disfigurement benefits based on its finding that the claim had been previously filed and denied.paperwork-1538658-639x426

In 2004, the employee was injured in a workplace accident and awarded workers’ compensation benefits, which he received for the next five years. In December 2008, a Department administrative judge denied the employee’s claim for permanent incapacity benefits and ordered that his benefits end entirely. In 2009, the employee filed a new claim for disfigurement benefits based on the same injury. His claim was denied, and the appeal was dismissed after the employee failed to pay the filing fee. The employee filed another claim in 2011 for disfigurement benefits, which was denied because he had failed to perfect his appeal in the prior claim.

In the current case, the court addressed yet another claim filed by the employee for disfigurement. The claim was denied by the administrative judge, who found that the employee was unable to submit any evidence distinguishing the new claim from his previously filed and dismissed claims. On appeal to the court, the employee invoked G.L. c. 152, section 14(1) against his employer’s insurer, contending that it wrongfully failed to pay benefits on his previous claims. The employee also argued that he had the right to proceed with his claim, despite the lack of evidence to distinguish the present claim from his previous benefits claims.

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The Massachusetts Department of Industrial Accidents Reviewing Board evaluated an appeal involving MGLA 152 § 34 workers’ compensation benefits in the matter of Adrian Aleman v. City of Boston. The parties appealed from a decision awarding the employee § 34 benefits after a work-related accident was found to be a traumatic aggravation of an underlying lumbar disc derangement. The employer argued that the medical evidence supporting the finding was insufficient and that the employee had not met his burden of proof under MGLA 152 § 1(7A).cracked-concrete-1496622-640x480

The employee began working for the City of Boston as a meter servicer in 1994. The employee had sustained previous, non-work-related injuries to his back from two car accidents that occurred in 1996 and 2006. In 2008, the employee was injured while working when he stepped on uneven concrete, twisting his right foot and ankle. He received § 34 total incapacity benefits until July 4, 2009, when he returned to limited duty work. He then began receiving § 35 partial incapacity benefits until he returned to full duty work in October 2009. The employee continued to work full time until July 25, 2012, when he fell in the course of his employment, resulting in the leg and back pain injury at issue.

Under Massachusetts workers’ compensation laws, if a compensable injury combines with a pre-existing condition, which resulted from an injury that was not covered by workers’ compensation, and thereby causes or prolongs a disability or a need for treatment, the resulting condition is covered only to the extent that such an injury remains a major but not necessarily predominant cause of a disability or a need for treatment. MGLA 152 § 1(7A).

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The Massachusetts Department of Industrial Accidents reviewed a decision of an administrative judge regarding an employee’s workers’ compensation benefits in Antonia Miranda v. Huntington Hotel Corporation. On March 6, 2010, the employee suffered a back injury when lifting trash while working at her job as a housekeeper. The employee underwent two back surgeries as a result of the injury. The employer’s insurer paid § 34 total incapacity benefits to the employee until April 10, 2013, when compensation was exhausted pursuant to the 156-week period specified in the statute. The employee subsequently filed another claim for § 34 total incapacity benefits from April 11, 2013 forward, the subject of the appeal.wheelchair-1178247-639x452

Prior to the hearing, the employee was examined by an independent medical examiner pursuant to § 11A. His report was submitted into evidence, and neither party submitted any additional medical evidence. The insurer, however, produced witness testimony from an investigator it had retained at the hearing, and it submitted the investigator’s report of his surveillance of the employee into evidence. The report stated that the investigator observed the employee over a four-and-a-half-hour period, during which time she made a trip to the bank and then walked through the mall with three other women while shopping. The judge ultimately adopted the opinion of the independent medical examiner, which found that the employee was unable to return to housekeeping work but could perform light duty work involving sitting, standing, or walking for up to four hours. The administrative judge therefore concluded that the employee had an earning capacity and awarded § 35 benefits from December 4, 2013 and continuing. Both the employee and the employer’s insurer appealed.

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The Appeals Court of Massachusetts addressed the issue of partial incapacity benefits pursuant to G.L. c. 152 § 35 in a workers’ compensation claim, In re Barbosa’s Case, 10 N.E.3d 1144 (Mass. App. Ct. 2014). The court was presented with an employee’s appeal of a decision of the reviewing board of the Department of Industrial Accidents, which had denied him partial incapacity benefits.

In May 2006, the employee suffered a workplace injury to his lower back and received § 34 total incapacity benefits and § 35 partial incapacity benefits until his return to full-time duty in September 2006. The employee subsequently left that job and took a lower-paying position. The employee then filed a claim seeking § 35 benefits from November 2006 and continuing, alleging that his 2006 injury had forced him to seek lighter and lower-paying work. That claim was denied in 2009 by an administrative judge.weld-1547865-640x480

The employee filed another claim, which was the subject of the appeal, asserting that his back condition had worsened since the 2009 decision. The claim was denied by a different administrative judge, who found a perceived pattern of the employee withholding impartial information from the impartial physicians in order to manipulate conclusions. The employee appealed that decision to the reviewing board, which found that the employee failed to produce medical evidence that his back condition worsened to cause an incapacity and that such worsening was causally related to the 2006 injury.

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The Department of Industrial Accidents Reviewing Board recently released a decision in the matter of Karen L. Wunschel v. Charter Communications. In a previous 2011 hearing decision, an administrative judge found that the employee suffered workplace injuries. That decision was not appealed, and the employee subsequently filed claims for workers’ compensation benefits pursuant to M.G.L.A. 152 § 13, § 30, and § 36. At the hearing regarding these subsequent claims, no witness testimony was taken. The administrative judge based his decision solely upon the prior 2011 decision, medical evidence, and the parties’ briefs. Ultimately, the employee was awarded workers’ compensation benefits for specific injuries pursuant to § 36, as well as home health care benefits pursuant to § 13 and § 30.balance-1172800-639x433

The employer’s insurer appealed the decision, contending that since the employee failed to comply with the evidentiary standard required by Massachusetts Regulations, the award of § 36 benefits should be reversed. Under M.G.L.A. 152 § 36, an employee is entitled to a lump sum for certain serious injuries that are enumerated in the statute, such as disfigurement, amputation, loss of vision or hearing, and others. Pursuant to 452 Code Mass. Regs. § 1.07(2)(i), claims for § 36 benefits must include a physician’s report indicating the maximum medical improvement that has been reached and a medical opinion as to the permanent functional loss according to the American Medical Association’s guide. In Wunschel, it was undisputed that the employee failed to present a medical evaluation as required by § 1.07(2)(i). The Reviewing Board, however, found that since the insurer failed to object to the lack of medical evaluation or avail itself of any other available options, the issue was deemed waived.

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The Massachusetts Department of Industrial Accidents Reviewing Board recently reviewed a decision denying workers’ compensation benefits in the case of Root v. G. Lopes Construction Co. The employee had been burned while working as a heavy equipment operator, and the employer’s insurer accepted liability for the employee’s burn injuries. The employee claimed additional benefits pursuant to § 28, which provides for double compensation in cases in which an employee is injured as a result of the serious and willful misconduct of an employer or supervisor.Medion DIGITAL CAMERA

After the hearing, the administrative judge found that the employee had experience conducting safety meetings, received fire prevention training, and two months prior to the accident at issue, attended a fire safety refresher course. The fire safety course instructed that water should not be used to extinguish chemical fires, and the fire department should be called. The judge also found that on the day of the accident, the employee knew there was some fuel in a diesel fuel tank he was scraping, but he continued to perform his job because he did not consider it to be especially hazardous. When the fire broke out in the tank, the employee attempted to put it out with a fire extinguisher and then poured water on it, causing the water and flames to splash out and severely burn him.

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In a newly released decision, the Massachusetts Department of Industrial Accidents Reviewing Board considered an appeal by the employer of an award of § 31 benefits. In the workers’ compensation appeal in Harris v. Plymouth County, the employee suffered work-related injuries to his neck and back. The self-insured employer paid § 34 total incapacity benefits to the employee until his death in October 2010, which was caused by excessive aspirin ingestion.KONICA MINOLTA DIGITAL CAMERA

The employee’s wife filed a claim under § 31 for dependency benefits and § 33 for burial benefits. She was awarded § 33 benefits but was denied dependency benefits under § 31. The wife appealed, contending that since the employer failed to appeal the award of burial benefits, the causal relationship between the employee’s work-related injury and death was established. Specifically, since an award of § 33 burial benefits is proper only when an employee’s death is work-related, the wife argued that an unchallenged § 33 award establishes causation for purposes of § 31 benefits as a matter of law. Once causation is established, the only remaining issues are whether the claimant qualifies as a dependent, and the amount of the § 31 benefit award.

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The Reviewing Board of the Department of Industrial Accidents recently decided an appeal in a workers’ compensation case, addressing the issue of whether an employee has standing to claim reimbursement of § 13 and § 30 medical benefits from her employer’s insurer for treatment paid by MassHealth and Medicare.  The administrative judge denied the employee’s claim, finding that since the employee would not receive any benefit from a favorable decision, she lacked standing.  On appeal in Dominguez v. Rainbow New England Corporation, the Reviewing Board reversed, finding in favor of the employee.medic-alert-bracelet-1316095-639x412-2

In Dominguez, the employee had settled her workers’ compensation case with her employer’s insurer for a lump sum after a right shoulder injury that occurred in December 2005.  Although all the employee’s medical bills had been paid, and the employee did not personally make any payments for medical treatment, the employee argued that the employer’s insurer had been unjustly enriched because MassHealth and Medicare had paid her medical bills.  The insurer contended that the employee did not have standing to raise her claim, since there was no controversy between the employee and the insurer.

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The Massachusetts Reviewing Board of Industrial Accidents recently considered an appeal of an administrative judge’s decision to deny an employee’s claim for workers’ compensation benefits. In Robert Correia v. Advanced Heating and Hot Water Supply, the employee worked for the employer for 11 years prior to his injury, performing work that included brazing, welding, and feeding metal tubes into a machine to fabricate residential hot water heater coils. The employee alleged that most of his time was spent coiling, during which he stood with his knees bent and the pedal depressed for up to an entire work day. On December 7, 2011, the employee felt pain in his right knee late in his shift and reported the injury to his supervisor. The employee sought medical attention and did not return to work for the next six days.welding-1240522-640x480

The testimony of the employee’s supervisor contradicted the employee’s testimony. It indicated that the employee rarely did coiling and that no injury had been reported on the day alleged by the employee. In addition, the plant supervisor testified that in a later meeting to discuss the employee’s medical restrictions imposed by his doctor, no mention was made by the employee or the doctor’s note that the physical restrictions were work-related. The administrative judge credited the supervisors’ testimony over the employee’s testimony, finding that the employee only performed coiling for 10-25% of the day.

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