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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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The Massachusetts Supreme Judicial Court issued a decision earlier this year that affects settlements for injured workers pursuing compensation for their injuries.  In the case of DiCarlo v. Suffolk Construction Co., Inc., which reviewed lower court rulings in two cases, the Court held that a workers’ compensation insurance company cannot recover its lien from a third-party settlement that has been allocated to the injured worker’s non-economic damageconstructions.  Under the workers’ compensation statute, pain and suffering damages are not compensable. Therefore, the court held, the lien holder cannot assert a lien for pain and suffering damages recovered in a third-party settlement.

The cases involved two employees, both of whom were hurt in the course of employment at construction sites and collected workers’ compensation benefits.  They settled agreements with third parties (construction site owners and managing contractors) that included damages for pain and suffering, among other things.  The insurer then sought to be reimbursed from the employees’ recoveries, including the awards for non-economic damages.

In one case, the insurer argued before a Superior Court Judge that its lien should attach to the pain and suffering award. The judge agreed and did not approve the settlement. The employee appealed, and the appellate court reversed. In the other case, the insurer appealed from a judge’s decision to approve the settlement, and this holding was affirmed on appeal. The Appeals Court held that the employee’s awards for pain and suffering were not to be included in liens placed by the insurer.

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The Massachusetts Department of Industrial Accidents, Reviewing Board recently affirmed a decision in favor of an injured employee. In this case, the court examined whether a medical report submitted after the close of evidence in the underlying hearing could form the basis of an ongoing award of section 35 benefits.  The issue was whether an employee’s disability was ongoing, requiring payment of maximum partial incapacity benefits after section 34 benefits had been exhausted.

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There were two previous decisions in this matter. The first decision included the judge’s findings that as of July 6, 2012, the date of an impartial medical examination, the employee’s work injury was not related to her ongoing partial disability and incapacity. The judge awarded a closed period of section 34 benefits, from the date of the injury, July 11, 2011, to July 6, 2012.

Then, the employee appealed this decision, stating that the judge erred in denying her motion for finding that the medical record was inadequate.  The Board agreed, since the report had been ambiguous and inconsistent, and it was not to be accorded exclusive, prima facie status. The judge then allowed gap medical evidence to be introduced before the July 6, 2012 examination.  But the judge erred in relying on gap medical opinions supporting his findings, including basing his findings on an opinion that was not admitted into evidence at all.

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