Massachusetts Reviewing Board Affirms Award of Workers’ Compensation Benefits, Including Handicapped Housing

In Joao Deoliveira v. Calumet Construction Corp., et al., the Reviewing Board of the Department of Industrial Accidents considered an appeal by an employer’s workers’ compensation insurance company of a decision ordering it to pay § 18 benefits to an employee who was injured while working for an uninsured sub-contractor of the employer. The employee was severely injured as a result of a fall at a building site as a framing carpenter, sustaining a spinal cord injury that rendered him paraplegic, as well as a significant brain injury requiring a partial lobectomy. At the hearing, the employee testified that he has no memory of who hired him to work at the construction site, of working at the construction site, or of the accident.Due to conflicting evidence regarding which sub-contractor was hired to perform the framing work, claims were made against the general contractor, as well as four other parties, only two of which were insured. All of the parties denied liability for the employee’s injuries and raised the defense of lack of employee/employer relationship. The facts involved in determining who was responsible for paying the employee’s workers’ compensation benefits were complicated, and they required the administrative judge to analyze testimony and other evidence to support inferences from which he arrived at his decision. The judge’s findings indicated that two uninsured sub-contractors were involved in the framing project, although the judge did not specifically identify which of the two had employed the injured employee. Pursuant to § 18, therefore, the judge ultimately found that the insurer of the general contractor was responsible for paying the employee’s workers’ compensation benefits.

The Reviewing Board disagreed with the insurer that failing to identify which uninsured employer hired the employee warranted a reversal of the judge’s decision, since the end result is the same. The employee was employed by an uninsured sub-contractor, requiring an award of benefits against the general contractor pursuant to § 18. The Board did, however, recommit the matter for the judge to make further findings of fact pertaining to the relationship of the two sub-contractors and their respective employment relationships to the employee.

The Reviewing Board also upheld the administrative judge’s determination of average weekly wages, finding that it was not in error. Since the employee had only worked for one full day and could not provide any information about his pay rate, the judge considered many factors to determine an approximation of average weekly wages, including the employee’s skill level, the amount of hours he was expected to work, the testimony of a construction industry consultant, and more. The Board found that the judge’s determination was based on specific findings of fact.

Lastly, the Reviewing Board upheld the judge’s decision ordering the insurer to locate and secure handicapped housing. Under G.L.c. 152 § 30, an insurer is required to furnish to an injured employee adequate and reasonable health care services, and medicines if needed, together with the expenses necessarily incidental to such services. Since handicapped housing is a medical necessity for the employee, the Board found that the judge’s findings supported his conclusion that it is the insurer’s responsibility to furnish the employee with handicapped housing.

If you have been hurt while working on the job, you may be entitled to compensation for your injury as well as lost wages. At the Massachusetts firm of Pulgini & Norton, our workplace injury attorneys represent and advise those pursuing workers’ compensation benefits. To discuss your benefits claim with one of our experienced attorneys, contact our office at (781) 843-2200 or online.

More Blog Posts:

Massachusetts Appeals Court Holding Bars Injured Temp Worker from Suing Employer, Massachusetts Workers’ Compensation Lawyer Blog, September 2, 2015

Massachusetts Court Finds No Newly Discovered Evidence in Workers’ Compensation Case, Massachusetts Workers’ Compensation Lawyer Blog, published July 15, 2015

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