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In an appeal before the Massachusetts Reviewing Board, Department of Industrial Accidents, the issues was whether an administrative judge had lacked impartiality in deciding that the insurer must pay benefits to an employee who suffered a workplace injury.  The Board also addressed whether the judge had failed to rule on objections regarding the medical depositions.

back painIn this case, the employee worked as a manager of a donut franchise for approximately nine years, until she injured her left knee and lower back. The workers’ compensation insurer paid § 34 benefits in accordance with a conference order, but then it terminated them after offering the employee a job based on medical restrictions set forth in an independent medical examination report.  Since the judge found that the impartial report was adequate, but the medical issues were complex, the parties were allowed to submit additional medical evidence.

When making his determination, the judge had relied upon part of the medical opinions to find the employee was totally disabled due to the industrial accident. The employer had made two job offers to the employee, but the judge found that neither offer was suitable.  The judge then awarded the employee ongoing § 34 benefits, as of the date of discontinuance. The insurer appealed.

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In a recent appeal, the Massachusetts Reviewing Board, Department of Industrial Accidents recommitted a case to further determine whether the employee’s average weekly wage had been properly determined.

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The employee in this case was 27 years old when the hearings took place, and she worked as a mental health assistant at the time of her injury. In January 2013, she slipped on black ice at the employer’s premises and injured her back.  After receiving medication at the hospital, she was treated conservatively for two years, receiving injections and undergoing physical therapy and diagnostic testing.  In February 2013, the employee returned to modified work and also worked as a part-time bartender and a nanny.

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In a recent case before the Massachusetts Department of Industrial Accidents, Review Board, the issue was whether the “going and coming” rule applied, such that an injured employee was barred from receiving compensation.  In this case, the Board turned to precedent to determine liability. The issue was whether the employee was due compensation for her injuries sustained while traveling by vehicle to her permanent home.

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The employee in this case was a nurse, 71 years old at the time of the hearing regarding her claim for compensation.  At the time of her injury, the employee had been working as a psychiatric nurse for her employer, who assigned her to work at a mental health facility in Vermont.  The employee worked a night shift and traveled from her home in Danvers to her job in Vermont at the beginning of the week, returning home after five days.

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The Massachusetts Reviewing Board recently upheld a decision in favor of an employee diagnosed with Lyme disease after being exposed to tick bites while working as a lineman.  The issue in this workers’ compensation case centered on when the tick bites were sustained.  The employee’s symptoms had begun potentially years after the tick bite, and the focus of the hearing before the administrative law judge was on causation.

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The employee in this case worked for one company from 2005 to 2007 and another beginning in 2008. While working for Employer 1, he was often outside, exposed to tick bites.  The employee explained that beginning in 2006, he endured abdominal pain, arthritic joint pain, and other symptoms that accelerated by June 2009. In September 2011, the employee left work due to the effects of Lyme disease, which is a tick-borne illness.  The disease disabled him until July 2012, but one year later, he was no longer in treatment.

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Recently, an employee appealed a decision to the Massachusetts Department of Industrial Accidents Review Board after a judge denied his § 30 claim for reimbursement of costs for a total left hip replacement.  stethoscope While the Board upheld the decision, they noted that the judge had set forth a standard for assessing medical complexity that had been rejected.  The rule, stated by the Board, is that a subjective approach must be used to determine medical complexity.

In this case, the employee had worked for his employer for over 30 years, as a machine operator and an x-ray technician.  He suffered injuries in an accident at work, when a revolving door struck his knee, and he fell onto his side.  After receiving medical treatment from two doctors, the employee underwent surgery on both knees, and during the recovery period, he received weekly indemnity benefits.

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According to Massachusetts workers’ compensation law, interest must be assessed on unpaid claims from the date the Department of Industrial Accidents receives notice of the claim.  At issue in a recent case before the Massachusetts Court of paperworkAppeals was whether interest would begin as of the date the Department receives notice of a claim that leads to an award of benefits, or whether interest would run from the employee’s filing date of an earlier, similar claim that was eventually terminated.

After suffering injuries in 1993 in the course and scope of employment, the employee in this case filed a claim and received workers’ compensation benefits for total incapacity until he was able to return to work. He suffered another injury in 1995 and stopped work, according to the recommendation of his physician, and he had not worked since.

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According to the Health and Safety Act of 1970, employers are required to provide a safe workplace for employees. Recently, an administrative judge with the Occupational Safety and Health Review Commission held that two contractors had been operating as a single employer at a worksite in Wenham, Massachusetts when three employees fell from a scaffold and suffered injuries. By holding both employers responsible as a single entity, the judge rejected one employer’s contention it had no personscaffoldingnel on-site and was not aware of OSHA violations.

According to a press release, an investigation by the Occupational Safety and Health Administration (“OSHA”) after the incident found that a wooden plank that the employees had been using to perform residential roofing work snapped. The employees fell 20 feet to the ground. OSHA determined that the plan had not been graded for scaffold use, and it was not intended to be used for scaffold use. Additionally, the components and structure of the scaffold, as well as the lack of fall protection for employees, had contributed to their injuries. For example, the width of the scaffold had not met the standards set forth by OSHA, and the platforms exceeded the height limit.

In the decision, the judge looked at factors that demonstrated the general contractor had a degree of control and oversight over the subcontractor, such that they were rendered a single employer. The general contractor secured contracts with homeowners seeking roof replacements. The other employer was a subcontractor, working as a roofing company.

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Recently, the Massachusetts Department of Industrial Accidents, Review Board, held that a judge had erred by substituting his own findings for those of the examining physician and that the employee was entitled to the reversal of his decision. In this case, the Board assessed whether in this successive insurer situation, the second employer could potentially be responsible for compensating the employee for work-related injuristethoscopees. The successive insurer in this case was the most recent employer, which argued that they should not be required to compensate the employee for her disability.

Here, the Department of Industrial Accidents found the judge had erred by failing to find the second employer responsible for compensating the employee for an injury to her right shoulder due to a work-related accident suffered at her former place of employment. The successive insurer rule holds employers accountable for compensating employees who endure the worsening of an injury originally caused while working for an earlier employer.  Here, the employee worked as a certified nursing assistant. In October 2007, she worked for the first employer and was injured when she fell down a flight of stairs. Specifically, she injured her left shoulder and right knee. Her employer paid her weekly total incapacity benefits, according to § 34. Her benefits continued through March 2008.

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The Department of Labor’s Occupational Safety and Health Administration (OSHA) recently cited an employer following a fatal Boston accident that killed two employees.  The employer was cited for “18 willful, repeat, serious and other-than-serious” violations of workplace safety standards.  Generally, these standards range from providing proper safety eqhelmetuipment to employees to training workers in identifying and addressing potential hazards.

In a press release for the region, including Boston, OSHA made clear that two employees died when they were working in a deep trench, and it collapsed. Adjacent to the trench was a fire hydrant supply line, which broke as the trench collapsed and filled the trench with water quickly.

One hazard for people working in trenches is that unprotected walls can collapse suddenly, and the great force can trap and engulf individuals before they have time to react.  By shoring the trench walls, using a protecting trench box, or sloping the soil, cave-in hazards can be prevented in many cases.

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Recently, the Massachusetts Department of Industrial Accidents, Reviewing Board, affirmed a decision in favor of an injured employee’s temporary total incapacity benefits due to an industrial accident. On appeal, the Board focused on whether the judge had committed an error by considering evidence of the injured employee’s physical state, withcar crashout writing down this observation in the record. When a judge considers evidence, it must be properly identified so that each party to a case can challenge the evidence.  This identification also allows for a complete record, in the event of an appeal.  In this case, the Board found that the judge’s statement may not have been appropriate, but there was no reversible error because the observation was merely cumulative of other findings.

The employee in this case was injured in a work-related motor vehicle accident. The insurer had not contested liability for her neck and head conditions.  However, the insurer denied payments for proposed medical treatment. In response, the employee filed a workers’ compensation claim, seeking benefits for medical treatment.

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