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Under Massachusetts law, employees who suffer work-related injuries may be entitled to benefits and medical costs. Workers’ compensation is a form of insurance that provides reimbursement for medical costs, reduced wages due to a disability, and other coverage, such as job retraining.  In addition to state law, the federal government sets forth standards to ensure the safety of employees throughout the nation.  As federal agencies, the United States Department of Labor and specifically the Occupational Safety and Health Administration (“OSHA”) protect the rights of injured workers.

pipeIn some cases, employees may be aware of an unsafe working condition or a workplace hazard. OSHA gives employees the right to file a complaint if they believe there is a serious work hazard or if their employer is not following OSHA standards.  Workers need not know whether a specific OSHA standard has in fact been violated in order to file their complaint.  In many cases, OSHA will inspect the workplace upon receiving a complaint.  If you are injured at work, and your employer did in fact commit an OSHA violation, you may be entitled to recover damages in addition to any workers’ compensation benefits you may receive.

Recently, a Boston seafood wholesaler was cited by OSHA, and the agency issued the employer fines for violating industry and OSHA safety standards.  In fact, an employee was fatally injured on the job in March 2016 after inhaling ammonia that had leaked from a burst pipe in his employer’s machine shop.  OSHA inspected and found serious violations.

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Recently, the Massachusetts Department of Industrial Accidents, Reviewing Board affirmed a judge’s decision to continue an award of section 34A permanent and total incapacity benefits, according to Massachusetts workers’ compensation laws, to an injured auto mechanic. The workers’ compensation insurer for the worker’s employer had moved to modify or discontinue his award of benefits.  In this appeal, the Board assessed auto mechanicwhether the insurer’s argument that an administrative judge had erred was legitimate.  Ultimately, the Board held that the judge had not erred in relying on a medical opinion that causally linked the employee’s disability to his work injury.

The employee worked as an auto mechanic for most of his career, and as a 58-year-old, he engaged in heavy work, such as lifting up to 100 pounds alone and 250 pounds with the assistance of others. The employee suffered a back injury at work, while bending and lifting. The insurer accepted the workers’ compensation case and paid his section 34 temporary total incapacity benefits.

After undergoing surgery as well as physical therapy and taking multiple pain medications, the employee continued to suffer.  The insurer filed a complaint for a modification or discontinuance of his benefits, and the employee joined a claim for section 34A permanent and total incapacity benefits.  Twice, administrative judges found that the employee remained permanently and totally disabled, and one complaint was withdrawn before the hearing. At a hearing for the fourth complaint for modification or discontinuance, the judge adopted the opinion of the employee’s examining orthopedist.

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At issue in a recent appeal before the Massachusetts Department of Industrial Accidents Reviewing Board was whether an employee was entitled to benefits for being partially and totally disabled while undergoing vocational rehabilitation training. pipesThe workers’ compensation insurer in this case appealed a decision that denied its complaint to modify or discontinue the employee’s section 34 benefits. The insurer had been ordered to continue paying those benefits until their statutory exhaustion and then pay section 34A benefits.

In analyzing the judge’s decision, the Board assessed the policy of vocational retraining.  The Board, citing Massachusetts law, made clear that vocational rehabilitation serves the purpose of working to return injured employees to jobs that pay “as near as possible” to their pre-injury wage. In order to serve this purpose, the Department should encourage and facilitate agreements between injured employees and insurers to use vocational rehabilitation services so that employees can return to suitable employment.

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At issue in an appeal before the Massachusetts Department of Industrial Accidents Reviewing Board was whether the judge had applied the proper analysis of employment status in determining that a workers’ compensation claimant was an independent contractor, who was not entitled to workers’ compensation benefits following a work-related injury.  The judge had analyzed several factors set forth in the ctoolsases of MacTavish v. O’Connor Lumber Co., 6 Mass. Workers’ Comp. Rep. 174 (1992) and Athol Daily News v. Bd. Of Rev. of the Div. of Employ. and Training, 439 Mass. 171 (2003).

The “MacTavish” factors are considered to control the issue of whether a claimant is an independent contractor or an employee for the purposes of workers’ compensation benefits under Chapter 152.  The claimant argued that the MacTavish factors and the “so-called independent contractor statute, G.L. c. 149, § 148B,” should have applied, and they would have resulted in a finding that she was an employee, entitled to workers’ compensation benefits.

The claimant in this appeal worked for Publishers Circulation Fulfillment, Inc. (PCF), delivering newspapers.  Her position was defined as an independent contractor.  The claimant identified herself as a sole proprietor when she filed her income taxes.

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The Massachusetts Reviewing Board of of Industrial Accidents recently reviewed a decision involving a judge’s allegedly harmful reliance upon medical opinions to modify a workers’ compensation award.  Modification benefits must be grounded in evidence showing that the employee’s medical or vocational status changed. In this case, the employee appealed a judge’s order that found he was not in active treatment for a hurt left shoulder, and he was not totally incapacitated.  The Board revpeniewed the evidence and found that, in fact, the judge’s reliance had been in error, and the decision must be vacated.

The employee in this case worked as a foreman or “job boss” for large construction projects. In October 2013, he suffered injuries when he was hit by a truck on a construction site. He fell into a trench and landed on PVC piping, injuring his left minor shoulder, left ribs, and face.

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In an appeal involving issues of causation, the Massachusetts Reviewing Board of Industrial Accidents stated that the judge had committed harmful error by mischaracterizing the evidence, leading to inconsistent findings.  The psychological injuries suffered by the employee inheadache this case had allegedly resulted from physical harm due to a work incident. The Board stated that it was not clear that the employee’s injuries and symptoms were caused by the industrial accident.

Procedurally, the judge adopted some of the medical opinions but not the most recent opinions regarding causation. The employee had undergone two surgeries and continued treatment for anxiety and depression.  While there had not been a dispute about whether the employee suffered an injury, the specific symptoms and injuries caused by that incident were at issue.  The Board found it had been an error for the judge to make inconsistent findings that factored into his determination that the work incident caused the employee’s injuries.

The employee in this case, who was 48 years old, worked as vice president of marketing for her employer. This task required strong analytical and communication skills, as well as attention to detail.  The employee suffered injuries when a magnet, weighing 8-12 ounces, fell from a door and hit her on the forehead.

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Massachusetts law requires that an impartial medical examiner examine the claimant when there is a dispute within a workers’ compensation claim over medical issues that serves as the subject of an appeal.   At the time of the appeal, the workers’ compensation claimant must submit payment of an average weekly wage in ordmedical examinationer to offset the cost of the examination.  Recently, a case before the Reviewing Board presented the issues of whether a medical dispute required an examination and whether the claimant’s failure to pay the appeal fee precluded his claim.

The facts of this case indicated that after suffering a work injury in 1991, the injured employee accepted his liability case for $145,000.  Eleven years later, in 2007, the employee filed a claim, and then when the claim was denied, he appealed the conference order denying the claim. He failed to pay the required appeal fee. Notice was sent to his attorney, but the fee was not paid. The case was administratively withdrawn.

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The Massachusetts Supreme Judicial Court issued a decision stating that the state’s insolvent insurers fund was able to recover for workers’ compensation claims paid on behalf of high-net-worth insureds.  In this case, Berkshire Bank argued that the Massachusetts Insurers Insolvency Fund could not recover workcoinsers’ compensation payouts made on behalf of an employee hurt while lifting a bag of coins. The superior court had found in favor of the bank, noting that amounts paid by the Fund would not have been “on behalf of” the insured employer and therefore would not have been able to be recouped.  The Supreme Court focused on the term “on behalf of” under Massachusetts law, concluding that the funds were paid “on behalf of the Bank” and could be recouped.

The Supreme Court reiterated Massachusetts law stating that the Massachusetts Insurers Insolvency Fund (Fund) may recover certain amounts paid “on behalf of” insureds, when those amounts were first paid by high-net-worth insureds. In this case, the employee who suffered an injury while working at a bank received workers’ compensation benefits under section 34, allowing for temporary total incapacity benefits, until those were exhausted, and she received section 35 benefits for partial incapacity.  The employee sought permanent and total disability compensation after her entitlement to section 35 benefits was exhausted.

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In an appeal involving a defunct workers’ compensation self-insurer, the Massachusetts Department of Industrial Accidents Reviewing Board held that a settlement agreement reached between a re-insurer and a bond holder was contrary to statute and invalid.  Partly, the Board held the agreement was invalid because there was no notice to the Department, or to the workers’ compensation claimant, the widow of a deceased employee.  In this case and the previous appeals, the claimant sought payment of her survivor benefits, which had ceased when the self-insurer’s bond was exhausted. The Board vacated the decision that had held the Workers’ Compensation Trust Fund responsible for paying the benefits and mandated the insurer pay all of the benefits directly to the claimant.

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The facts of this case indicate that the employee began working for the employer, Polaroid Camera, in 1959.  In 1987, he contracted asbestosis from work-related asbestos exposure.  He worked until January 1989, when the asbestosis incapacitated him.  He was eventually awarded section 34 benefits from January 1989 and continuing.

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The Massachusetts Department of Industrial Accidents, Reviewing Board, recently analyzed a case involving two insurance companies and an employee’s claim of a repetitive injury to his shoulder. The second insurance company, Federal Insurance Company, argued that the judge had erred when he transformed the employee’s allegation from one alleging a single event in 2012 into a claim of a repetitive, ongoing aggravatiocortisone injectionsn of a shoulder condition. They also contended they should not be found liable for the injury under the successive insurer rule.

In this case, Kenneth Linton was a long-term employee of G.P.C. International/Chartpak, Inc.  Beginning in 1996, he worked as a paper processor and machine operator in the employer’s California plant. Then, Mr. Linton transferred to the Leeds, Massachusetts plant, where he continued to perform the same job duties.

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