Articles Posted in Workers’ Compensation

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Injured workers, like others dealing with pain, may turn to painkillers such as OxyContin and Vicodin to alleviate their symptoms.  Throughout the nation, and particularly in Massachusetts, workers’ compensation systems are attempting to stop the overprescription of these powerful painkillers to workers.  This reflects an effort to help workers avoid addiction and potentially dire consequences, such as fatal overdoses.

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Last year, Boston, along with the rest of the state, entered into a voluntary program to help injured workers who have settled their claims for Massachusetts workers’ compensation receive treatment for pain management. The intention of the program is to limit the use of opioids or other narcotics.  By coordinating chronic pain management options other than the use of prescription opioids, the chance of an injured worker becoming addicted to medication lessens.

Insurance companies for employers pay for prescription medications when injured workers receive workers’ compensation benefits for their injuries, and a prescription has been indicated as treatment. As employees pay into the workers’ compensation insurance systems, states are responsible for oversight of the insurer.  The insurance company is responsible for providing medical care and reimbursing wage loss to workers who have suffered work-related injuries and successfully filed a claim for benefits.

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The Health and Safety Act of 1970 makes clear that employers must provide all workers a safe place to work, free from potential hazards.  In a recent press release, the Department of Labor’s Occupational Safety and Health Administration (OSHA) determined that a Massachusetts company did not notify the agency, as was required, that a worker was hospitalized after suffering a serious injury.  This serious safety and health hazard was cofactorympounded by the fact that the employer also failed to notify emergency medical services promptly after the Massachusetts work injury.

This particular packaging company is responsible for filling, packaging, and shipping aerosol containers.  The injured worker had been working on a production line, and a gas head on this line directs chemicals into the aerosol cans. As a temporary worker, he was not sufficiently trained. At the time of the serious injury, the worker was cleaning a gas head. Unexpectedly, the production line activated.  The result was devastating – a gas head needle pierced the worker’s’ finger, injecting him with a propellant gas that then inflated his arm.

OSHA’s investigation revealed that company managers had not contacted 911 immediately.  The hurt worker was taken in a private vehicle for medical treatment and was hospitalized.  The OSHA area director for central and western Massachusetts made clear that according to law, employers should immediately contact 911 following an employee injury.  In this case, by delaying contact, the worker was exposed to additional bodily harm and potentially permanent, disabling injuries.

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A recent decision by the Massachusetts Department of Industrial Accidents, Review Board, held that an Administrative Judge’s decision awarding benefits to an injured employee must be recommitted and reassigned to a different judge, based on the judge’s misconceptions and mischaracterization of the medical evidence.  The Board agreed in this appeal with the self-insurer, who argued that the judge had adopted the mischaracterized evidence to support his findings and conclusions, despite the fact the evidence could not be reconciled with other evidence.wheelchair

The employee in this case worked for the Department of Corrections. After being struck in the face by a resident of the Department of Corrections, the Massachusetts workers’ compensation claimant in this case brought a claim against his employer for benefits.  He had received disciplinary action following the incident, since he had pushed the employee in his chair after being struck.

The Board stated that the judge had viewed the case as one involving a physical injury resulting in an emotional sequela.  Since the employee in this case had a pre-existing mental health issue, and this combined with the injury,  G.L. c. 152, § 1(7A) was triggered. This section of the law holds that for employees who have a pre-existing condition, a compensable injury that prolongs their need for treatment or disability will be compensable when the injury is a major but not predominant cause of the disability or need for treatment.

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Recently, the Reviewing Board for the Massachusetts Department of Industrial Accidents affirmed an award of benefits to an employee for her physical and psychiatric disabilities.  The Board made clear that this was a Massachusetts workers’ compensation case involving both orthopedic and psychiatric sequela, and therefore there was a causal connection between the employee’s injury and her depression.  The Board also reviewed legal rules that require that medical testimony be considered as a whole when determining the opinion being given.boot

The employee in this case slipped and fell at work, suffering multiple fractures in her foot.  The self-insurer paid workers’ compensation benefits related to this foot injury and to the psychiatric consequences of the injury.  After undergoing multiple surgeries to her left foot, the employee had testified that she still suffered pain and had difficulty with stairs.  According to the employee, she feels sad and cries often, due to her physical limitations and pain.

The judge had awarded the employee benefits based on his finding that she was permanently and totally disabled, both due to her orthopedic condition and due to her major depression caused by the work-related accident.  The self-insurer appealed.

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Workers who are injured in the Boston area and are not independent contractors have the right to pursue a workers’ compensation claim.  As a workers’ compensation claimant (or injured worker), the process of securing benefits is set forth by guidelines made clear by the Massachusetts Department of Industrial Accidents (DIA).  A skilled Massachusetts workers’ compensation lawyer can help ensure that all timelines are met, and beginning with reporting requirements, represent you throughout the process of seeking benefits.

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The DIA makes clear that after being unable to earn wages for five days, injured workers are eligible for weekly compensation benefits.  These days need not be consecutive, and at this point, the employer will be required to file a form reporting the injury. Before any type of formal hearing takes place, there must be a conciliation.

A conciliation is defined as a type of informal meeting between the claimant, their attorney, and the employer’s insurance company’s attorney, as well as a conciliator from the DIA.  During the conciliation, the conciliator will work to facilitate an agreement between the claimant and the insurer.  If the parties are unable to reach a voluntary agreement, the claim will be referred to an Administrative Law Judge, who will conduct a conference.

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Workers throughout Massachusetts seeking to report an unsafe work environment are protected from retaliation by their employer. Retaliation can take different forms and includes any “adverse action” taken against workers, such as employees filing a Massachusetts workers’ compensation claim.  This action may include firing, demoting, denying benefits, threatening, or reducing pay or hours. According to Section 11(c) of the Occupational Safety and Health Act, employees who make a complaint about their workplace or otherwise exercise their rights under theconstruction worker Act are protected from retaliation.

There are different ways that an employee can report a complaint to the U.S. Department of Labor’s Occupational Safety and Health Administration (OSHA), including online, in-person, and in writing. Recently, OSHA revised the whistleblower complaint form in an effort to further protect employees from retaliation.

The Occupational Safety and Health Act requires that employers provide safe and healthy workplaces for employees.  OSHA has been set in place to ensure that these conditions are met and to enforce standards and train, educate, and assist both workers and employers.  Statutes that are enforced by OSHA cover whistleblower provisions.  These laws mandate that employees comply with the deadline, filing their complaint within a certain number of days after the alleged retaliation.

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The Massachusetts Workers’ Compensation Act (WCA) provides benefits for workers who have suffered harm in the course and scope of employment.  Industrial injuries, which include physical harm as well as diseases or illnesses, range in severity, and they can cause a temporary disability as well as permanent harm.  As a type of work-related medical condition, carpal tunnel syndrome can affect an employee’s ability to successfully perform work-related tasks. Termed a “repetitive stress injury,” carpal tunnel is caused by compressed nerves that rest within the carpal tunnel of the wrist.

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According to the Workers’ Compensation Act, Section 1 (7A),“personal injury” includes diseases as well as compensable injuries that combine with a pre-existing condition, even when that condition resulted from a non-compensable injury or disease.  If the cause of the disability results from a compensable injury or disease, the employee would be entitled to compensation.  Since it is a type of injury that can become progressively worse over time, workers within occupations that require extensive typing or writing may find that carpal tunnel has exacerbated earlier, unrelated conditions. Or they may simply have developed carpal tunnel due to hours spent at their desk daily.

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Massachusetts workers’ compensation lawyers are familiar with the tactics and strategies used by employers and their insurance companies to deny benefits to injured employees. Often, medical treatment and initial diagnoses serve as the foundation for challenging an injured employee’s claim for benefits.  The insurer selects a doctor for an initial examination of the employee, and according to the law, the employee must submit to this examination, despite the fact that it is not truly impartial.

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According to workers’ compensation laws, reasonable requests for an exam by an insurance company doctor must be heeded. Known as an “Independent Medical Examination” (IME), this initial examination is not treatment, and the insurance company cannot charge claimants for this visit. Additionally, the insurer should reimburse the claimant for reasonable travel expenses.   Once the claimant has completed their IME, they choose the doctor who will treat them for their health problem.

An “IME” is performed by a doctor who is not necessarily going to serve as the injured employee’s treating doctor. In uncomplicated cases, the insurance company may not request that an employee undergo this examination  It is important to understand that an IME is not necessarily independent, since the doctor has been selected by the insurance company, and the report is intended to allow the insurer or the employer to deny or support the claim for compensation.

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In a Massachusetts Reviewing Board Decision, the Department of Industrial Accidents determined that the spouse of a deceased worker was entitled to burial benefits, although they affirmed the denial of her claim for dependency benefits.  The issue on appeal was whether the insurer had, by failing to appeal the award of burial benefits, established that causation existed (that the employee’s death was work-related).  The Board rejected the notion that burial benefits lack a causation element, and it held that by failing to appeal the order that awarded burial benefits, the insurer established that there was a causal relationship between the employee’s work-related injury and his death.

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The facts of the case indicate that the employee in this case worked for the Sheriff’s department as a caseworker, and he suffered back and neck injuries at work.  He was paid § 34 benefits until his death, caused by excessive aspirin ingestion.  At the time of his death, the employee was married but living apart from the claimant.

The claimant (spouse) filed a workers’ compensation claim for benefits based on dependency benefits and burial benefits provided by Massachusetts’ workers’ compensation laws.  At a hearing, the insurer argued the claimant was not entitled to those benefits, but the judge ordered that burial or funeral expenses be paid.  The judge denied the claim for dependency benefits, and the claimant appealed.

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Recently, the Massachusetts Department of Industrial Accidents, Review Board, held that an administrative judge had not considered evidence the injured employee had properly submitted regarding his medical condition due to a work injury.  x rayThe Board vacated the decision and remitted the matter for further review, noting also that the judge had mistakenly set forth dates for disability findings that were inconsistent with his adopted evidence.

In this case, the injured employee worked as a court officer and was hurt during an altercation with a prisoner in March 2012.  The employee underwent treatment at a hospital for injuries to his ribs, right arm, and wrist.  After the self-insurer accepted legal fault for the injured employee’s physical harm, the parties stipulated the injuries had resolved by May 2013.

At conference, the employee joined a claim for psychiatric counseling and further indemnity benefits, as well as a claim for post-traumatic stress disorder (PTSD).  The insurer contended they were not liable for the PTSD injury.  Since the judge deemed the § 11A report inadequate regarding the PTSD claim, the parties were allowed to submit additional medical evidence.

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