Articles Posted in Workers’ Compensation Benefits

Often when our Boston workers’ compensation lawyers are discussing job-related accidents or illnesses, we’re talking about high-hazard fields. These would be things like construction, road repair or firefighting – some line of work in which hazards are prevalent and injuries are common.

But a recent case out of Burlington illustrates why you can’t assume that these sort of manual labor positions are the only ones in which a worker’s safety could be jeopardized. In fact, that’s dangerous thinking because it could lead to both employers and workers becoming lax or indifferent when it comes to ensuring safety standards are established and maintained.

That appears to be what happened at the Burlington branch of Forever 21, a retail clothing store that caters to teenagers and young adults.

According to the U.S. Occupational Safety & Health Administration, the store had two repeat violations relating to improper stock storage and inadequate exit routes. As a result, workers were put at risk not only from falling overhead boxes, but also of being trapped in the event of a fire or other emergency.

The store, inside a mall, had boxes piled up high in the back stock room that were not secured against displacement or collapse. Boxes were also the cause of non-existent egress routes. There were so many piled up on either side that the exit routes were effectively cut off, with workers having to climb over boxes to get to the back door.

The Los Angeles-based company faces up to $55,000 in fines due to the fact that these violations were recurring. A repeat violation is one in which a company has been cited for the same thing within the last five years. OSHA reported that another branch of the chain in New Jersey had been cited in 2011 for the exact same problems.

Large companies have a responsibility to ensure that all their work locations are secure and safe from obvious dangers.

The clothing retailer has 15 business days to decide whether to comply or appeal the decision.

Boxes aren’t the only kind of debris that can present workplace hazards. Anything that is stored or resting overhead could become a serious hazard if it isn’t properly secured.
Responsible employers know there are ways to prevent stock or debris from posing an injury risk. That includes properly securing the material or loads. That might include ensuring proper shelving, wrapping certain materials in plastic wrap and making sure that storage cases aren’t overloaded.

Secondly, when items are going to be moved, employers should make sure that workers are doing so properly. That means making sure that person has the proper equipment to safely lift the material and won’t be doing it with someone standing directly underneath. If protective equipment is required, it should be provided.

And finally, work sites should be clean and free of debris and clutter. This is one of the primary reasons why people suffer workplace falling object injuries. Often, it could have been prevented by just keeping the work site tidy.
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U.S. Cosmetics Corp. is in the business of beauty and making others look good.

It’s too bad they failed to come up smelling roses in a recent inspection by officials with the U.S. Occupational Safety & Health Administration.
Our Boston workers’ compensation lawyers understand the firm was slapped with more than $53,000 in fines for posing worker hazards, including chemical, mechanical, confined space and electrical concerns.

The decision was handed down late last month.

In all, there were 20 alleged serious violations at the Hartford-based plant. A serious violation from OSHA is one in which a workplace hazard could cause an illness or accident that would most likely result in serious physical injury or even death. The only defense for this kind of violation is that the employer did not know and could not have known about it.

In this case, it’s not clear whether in fact the employer did know about the risks workers were facing daily, But the clear message, as evidenced by these fines, is that it should have known. Left uncorrected, these risks exposed workers to hazards such as:

• Arc blasts;
• Falls;
• Becoming trapped or overcome in confined spaces;
• Electrocution;
• Lacerations.

The inspection actually took place back in October, and now the final report has been handed down.

With regard to electrical safety, OSHA indicated that the company didn’t have any electrical safety-related work practices in place for employees who were working directly with energized power sources. They weren’t being equipped with proper protective gear and there was no indication that workers were being instructed to check first to ensure power sources weren’t energized before initiating their duties. Maintenance workers hadn’t been trained whatsoever in this regard.

With regard to confined spaces, there was no limited access to these locations, nor were there procedures in place to ensure such areas were free from electrical dangers before workers entered. There was also no plan in place to rescue employees from a confined space in the event of an emergency.

There were also numerous instances of fall and tripping hazards, dangerous machinery that was running, yet unguarded, flammable liquids in unsecured containers and hazardous chemicals that weren’t clearly marked and labeled.

In areas where employees were working with caustic chemicals, there were no facilities for these workers to drench or clean themselves.

Additionally, there were numerous locations where damaged electrical power cords were left exposed in the work area.

The company, founded back in 1985, manufactures treated mineral substrates and pigments that are then sold to various cosmetics makers. It also creates sunscreens and other specialty cosmetic products.

Workers have a right to conduct their duties in a safe environment, having been properly trained and with the appropriate protective equipment and safeguards. Oversights like these put every single one of these workers in jeopardy.
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Our Boston workers’ compensation attorneys know that one of the reasons some workers may hesitate to file a claim is that they figure an injury stemming from a pre-existing condition essentially makes them ineligible for benefits.

This is not true.

Of course, you can’t get workers’ comp for a totally-unrelated injury. But if your pre-existing condition has been exacerbated or aggravated by an incident at work, you absolutely may qualify for benefits.

That was the issue before the Massachusetts Supreme Judicial Court in Goodwin v. National Grid.

The plaintiff was a 55-year-old laborer who had worked for his entire career as a pipefitter at this company and those that came before it. His everyday duties involved intensive physical labor, so he was no stranger to daily aches and pains.

One day, in late December of 2008, the employee was working on an overhead pipe to fix a leak. In the midst of this, he felt the back of his neck pop, causing an extreme shock of pain to shoot down from his neck to his right arm. He had experienced brief bouts of pain before, he said, but this was different.

He went to the doctor soon after, where an MRI of his spine revealed he had extensive degenerative disc disease and multiple disc degeneration. The doctor diagnosed his most recent injury as aggravation of preexisting cervical spondylosis and cervical strain. The doctor found that the preexisting condition was responsible for 60 percent of his injury, while the work incident was responsible for 40 percent.

The worker underwent surgery and was once again cleared for full-time work little more than a year later.

When the workers’ compensation disability claim was heard before an administrative law judge, the judge found that the doctor actually used an improper legal standard in his 60-40 conclusion. Further, the judge decided that the doctor’s finding of 40 percent made it a significant enough factor to require the employer to cover the workers’ disability and treatment costs.

The company then appealed that decision to the reviewing board, which is the state’s Supreme Judicial Court. The firm argued that the administrative judge had not properly taken into account the doctor’s opinion on the cause of the worker’s injury and the fact that a preexisting condition was primarily to blame.

The court, however, sided with the worker, reasoning that the judge wasn’t under any obligation to adopt all of the doctor’s findings or opinions. The doctor had said he didn’t believe the work incident to be a “major cause” of the patient’s condition. But the law judge was well within his rights to determine that the doctor’s interpretation of “major,” in the legal sense, was incorrect.

Further, Massachusetts G.L. c. 152, 1(7A) holds that in cases where an employee is hurt but also has a preexisting condition, the worker has to show that the work injury or disease is a major – but not necessarily predominant – cause of the need for treatment or disability.
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Attorney General Martha Coakley’s office went hard after a company it claims committed numerous instances of Massachusetts workers’ compensation fraud.

Our Boston workers’ compensation attorneys are encouraged that such action was taken against those who break the law at the expense of their employees – just to save a few bucks.

Employers have a legal responsibility to accurately report to insurance companies regarding their total number of employees, payroll and classification of business.

Failing to do this for the express purpose of avoiding payment of insurance premiums covering workers’ compensation for injured employees is illegal under MGL c. 152, 25C. The law holds that violations can result in civil fines of up to $250 daily and criminal fines of up to $1,500 daily. If convicted of a criminal violation, offenders may even face up to a year in jail.

The law was recently updated to state that any employer who is found to have violated this statute for the express purpose of avoiding payment of higher insurance premiums is barred for up to three years from participating in the bidding process for any contracts funded by the state or municipal governments.

The truth is, these fraudulent practices put law-abiding businesses at a disadvantage and drive up workers’ compensation insurance premiums for everyone else.

In this case, the guilty party was the owner of a roofing and siding company operating out of Nantucket. He was accused – and recently convicted in Suffolk Superior Court – of five counts of workers’ compensation fraud.

From 2000 through 2010, the company used two different insurance companies for workers’ compensation coverage. The attorney general’s office has said that in order to avoid paying higher rates, the defendant lied to both firms about how many workers he had and also what kind of work those employees did, downplaying the fact that they were regularly involved in physical labor.

It’s not clear immediately from court documents whether a worker at the company ever actually got hurt, but it’s really besides the point. If they had, the insurance company would have been liable to pay, even though the employer was not paying the insurance company appropriately relative to the risk.

In this case, the defendant was sentenced to two years of probation and ordered to pay more than $40,000 in restitution.

But this is far from an isolated situation. Last year, the attorney general’s office reportedly handled nearly three dozen such cases, handing out more than $1.6 million in restitution orders.

All employers in Massachusetts are required by law to carry workers’ compensation coverage – even if they only employ a handful of workers and even if the only person they employee is themselves. The law is applicable regardless of how many weekly work hours you submit. The only exception is domestic service employers, who have to submit at least 16 hours weekly in order to require workers’ compensation insurance coverage.

While we can sympathize with employers who are already pinched tight, workers’ compensation insurance is not the place to cut corners. The attorney general’s office reports that companies who feel they are being charged too much do have the option to appeal to the Massachusetts Division of Insurance.
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An employee in Andover, working on a large bridge project, has sustained massive injuries as a result of a Massachusetts work accident in which he was pinned between two rear tires while at the work site.

Our Boston workers’ compensation attorneys understand the subcontractor employee is fighting for his life, with major internal and external injuries sustained to his lower extremities.

Investigators are still working to piece together the details, but so far, we know this:

Crews were onsite working on the railroad bridge crossing over the Shawsheen River.

It was shortly before noon when the driver of a tractor-trailer truck was working to attach a trailer to the back of his cab. For reasons that aren’t yet clear, the vehicle shifted, causing the tractor to roll backward. The worker was left pinned.

He was stuck there until emergency rescue crews arrived. Even then, crews weren’t able to lift the extreme weight of the tires until they employed inflatable, pneumatic bags. At that time, he was conscious and alert, but he had to be airlifted to a nearby hospital.

This is quite common in pinning injuries, where the release of pressure on the extremity from removing that heavy object quickly can actually be toxic – even fatal. That’s why in some pinning situations, amputations have to be performed on site.

That does not appear to have been the case here, but we are still awaiting all the facts. An investigation has been launched by the construction company, as well as the Occupational Safety & Health Administration and the Massachusetts State Police and local police and fire officials.

OSHA statistics show that the majority of roadway construction injuries occur when a worker is struck by a piece of construction equipment or vehicle. OSHA reports that some 100 highway construction workers are killed each year, and another 20,000 are injured.

In Massachusetts, the Centers for Disease Control reports there were nine roadway construction zone fatalities in 2009 and eight the year before.

In the four years between 2003 and 2007, nearly 640 workers were killed on road construction sites, representing about 8 percent of all construction industry work deaths. More often than not, it was not a passing vehicle that put the workers’ lives in jeopardy.

In more than half of these cases, it’s not a passing vehicle that’s to blame – it’s the equipment and vehicles within the construction zone that are the greatest risk. In fact, 60 percent of road construction site fatalities occurred when workers were struck by mobile equipment or vehicles that were backing up.

Contracting agencies on road construction projects are advised to take the following precautions:

• Work out a streamlined process for reviewing and approving changes in the work zone set up, as identified by safety concerns;
• When possible, close the road around active work zones entirely, and reroute traffic;
• Consider equipping workers with additional safety equipment such as sensors, intrusion alarms and handheld radios.

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Roads, bridges, tunnels and other public and private property need to be regularly maintained. This job normally falls to construction workers. Construction workers may do a number of different jobs including building construction, remodeling existing structures or working on the streets to improve the transportation system in the U.S.

Unfortunately, our Boston injury attorneys know that the nature of construction work is dangerous. This is especially true for workers in work zones on roadsides where they may be struck by passing trucks, cars or other vehicles. These workers must be protected and the Occupational Safety and Health Administration (OSHA) has provided a fact sheet on work zone traffic safety that establishes safety requirements and provides some tips for work zone safety.

OSHA Work Zone Safety Tips
According to OSHA, being struck or hit by a vehicle in a work zone is a common cause of workplace fatalities. To minimize the risk of a death occurring in a work zone, OSHA advises that:

• Every work zone should have traffic controls. These controls can include cones, barrels, barriers and signs.
• Drivers and pedestrians should be clearly pointed in the right direction and shown what route to follow when approaching and entering a work zone. Message boards, as well as signals and traffic control devices can direct drivers away from work zones so they give workers wide berth and don’t cause a crash.
• Barriers can be erected in work zones to help reduce the risk of a motorist intruding into the space and potentially striking a worker. These barriers can use sand, water or concrete. They can also take the form of crash cushions or collapsible barriers. Even a truck-mounted attenuator could potentially be used to prevent drivers from inadvertently entering a construction zone and striking a worker.
• Employers should pay special attention to flagging and to the work performed by flaggers, since people in this position can be especially vulnerable to a crash. Flaggers should always have high visibility clothing on, and flaggers should be trained and certified before being allowed to work in a real construction zone. Actual flags should only be used as a last resort, with “Stop” or “Slow” paddles and lighted paddles used when possible.

These are good general tips that it will largely fall upon employers to follow. Employers should arrange for and provide the traffic controls as well as the messaging information to show drivers where to go. If a barrier needs to be erected, the employer should also take on the responsibility for this in order to protect their workers.

Employers are in the best position to ensure that their workplaces don’t present an unreasonable danger- even if those workplaces are just roadside work zones. Employers are also on the hook for paying workers’ compensation benefits to employees if they get injured on the job. All of this creates strong incentive for employers to try to follow OSHA rules.
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There’s a new way for officials to handle whistleblower complaints and it comes with the recent announcement of a new dispute resolution pilot program of the WhislteBlower Protection Program. According to the Occupational Safety and Health Administration (OSHA), the new program will now help officials to settle these complaints in a voluntary and cooperative manner. The pilot program is going to start off in two of OSHA’s regions and will deal with early resolution and mediation tactics. When a whistleblower complaint is filed in one of these regions, the parties involved will be notified about the resolution options and will be offered help from an OSHA coordinator to use the new methods to try and resolve the problem.

“OSHA is committed to fair, effective and timely enforcement of the whistleblower laws delegated to us by Congress,” said Dr. David Michaels, Assistant Secretary of Labor for Occupational Safety and Health.

Our Boston workers’ compensation attorneys understand that OSHA is working to figure out how to deal with these kinds of claims in a quick and effective manner. The problem is that these kinds of disputes should never take place on the job. Employees in the country are granted with very specific rights and those rights need to be protected. Workers are granted with the right to speak up if there’s something wrong on the job. They’re allowed to speak up about any illegal activity they observe, about any kind of retaliation that has taken place and about any and all safety concerns that they might have on the job.

Whistleblower Protection Programs Help to Stop:

-Firing
-Demoting
-Blacklisting
-Reduction in Pay
-Threats
-Denial of Benefits
-Unnecessary Disciplining.

-Failure to Hire or Rehire
-Unnecessary Reassignment
-Denying Overtime
-Denying Deserved Promotions
-Reduction in Hours
San Francisco and Chicago will be the two regions that are going to participate in OSHA’s pilot program. The Chicago Regional Office is in charge of dealing with whistleblower investigations with Ohio, Wisconsin, Minnesota, Indiana and Illinois. The San Francisco Regional Office is in charge of dealing with whistleblower investigations filed in American Samoa, Guam, Northern Mariana Islands, Nevada, Hawaii, California and Arizona.

Every year, there are close to 3,000 whistleblower complaints filed throughout the United States. The sad news is that some people are treated unfairly on the job because of speaking out about poor working conditions and they never even step up and file a complaint or fight back. You have rights and those rights need to be protected, but it’s important that you know your rights!

Currently, OSHA’s whistleblower provisions cover 22 statutes. All of these laws help to cover millions of workers throughout the country. Unfortunately, these provisions aren’t always upheld. If you feel that you’re being discriminated or treated unfairly on the job because you brought something up to the company or the employer’s attention, you’re urged to contact an experienced attorney to help you to preserve your rights and to help you to collect the compensation for your unfair treatment.
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Officials with the Massachusetts Division of Insurance recently announced rejection of a request to increase the state’s workers’ compensation rates by close to 19 percent. According to the Insurance Journal, regulators decided that they were going to reject the request and keep the rates as they are, following a five-month hearing process and comment period.

The hike was initially requested earlier this year in March. It was made by the Workers’ Compensation Rating and Inspection Bureau of Massachusetts (WCRIB). It was made on behalf of all its members. They submitted this request and hoped that it would take effect by September. They were sadly mistaken.

Our Boston workers’ compensation attorneys understand the importance of this kind of security. Workers compensation provides injured workers with benefits for lost wages, for time spent off of the job and for compensation for their injuries or illnesses that were sustained on the job. In the state of Massachusetts, companies are required to carry this kind of insurance. Because of the recent decision from the WCRIB, rates will not be changed and businesses are estimated to save about $200 million on projected premium increases.

Upon the first filing for this hike, officials with the WCRIB looked to get a 19.8 percent increase, but later recommended an 18.8 percent increase. Neither was approved. Keeping these rates affordable is critical for businesses. The lack of a rate hike is also evidence that the system is solvent and working as intended — to protect employees.

Officials with WCRIB said that they realized that this was a pretty steep increase, but claim that it was justified because rates haven’t gone up since 2001.

To help to balance the proposed hike, Martha Coakley, the Attorney General for the state of Massachusetts, came back with a proposed hike of just under 9 percent. The State Rating Bureau also denied the proposed hike but has yet to return with a counter offer.

The Massachusetts Division of Insurance recent came forward with a statement saying that they encourage the WCRIB to resubmit a more realistic hike proposal.

Employers in the state of Massachusetts are typically required by law to carry workers’ compensation insurance for workers. Workers who have been injured of suffered an illness on the job are eligible for these benefits. Coverage is to start your first day on the job. Even undocumented employees are eligible, according to MassResources.org.

In an event that you are injured on the job and you’re eligible for this compensation, you are allowed to get a weekly cash payment of up to 60 percent of your average weekly wage for temporary disability. You can also get a lifetime workers’ compensation benefits package if you’ve been permanently and totally disabled on the job.
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Workers’ compensation was created in order to provide benefits to employees who have been injured on the job. However, Boston workers’ compensation has limitations as well.

Our experienced Boston injury attorneys can help inform you of your rights in your workers’ compensation case. Understanding your rights can help you get the benefits and medical care you are entitled to.

A recent case was heard in Minnesota that discusses the law that governs the employer liability for medical treatment an injured employee receives. Schatz v. Interfaith Care Center, No. A11-1171 (Minn. S.Ct. Apr. 11, 2012). Schatz (plaintiff) worked as a realtor for Interfaith Care Center (Interfaith) and was a resident of Minnesota. While working in Minnesota, the plaintiff severely injured her shoulder. Although she received medical treatment in Minnesota, she decided to relocate out of state to Wyoming. She sought treatment for her shoulder from a medical provider in Wyoming. This medical care provider conducted two surgeries on the plaintiff’s shoulder, which were a direct result of the work-related injuries plaintiff sustained. This Wyoming medical provider submitted the bills for shoulder surgery and treatment to the Interfaith WC insurer, New Hampshire Insurance Company (insurance company).

Upon receipt of the coverage requests, the insurance company sent the medical provider the amount consistent with the Wyoming WC statutes. The amount sent to the provider did not equal the cost of the treatment which left the plaintiff owing the provider money. Plaintiff entered a WC “medical request for payment” with the insurance company to have the remaining balance covered. The insurance company denied her request; thus, leading to the case at hand.

Plaintiff argued that because the state statute says that an injured employee should not be held liable for medical costs associated with a work-related injury, she should not have to pay the outstanding balance. Additionally, plaintiff supported her argument with the contention that because she was injured in Minnesota, this Minnesota law had to be upheld.

The insurance company argued that Minnesota law does apply but it pointed to a different Minnesota law. The insurance company defended itself by arguing that it was not responsible for the additional payments because of the Minnesota statute discussing the employer’s liability for medical treatment costs. This statute says that where an employee is injured in one state and receives medical treatment in another, the employer’s liability for medical treatment costs is limited to the amount stipulated by the state where the medical treatment is obtained. See Minnesota Statute §176.136.

Plaintiff countered this argument by stating that there was a conflict between the Minnesota state WC statutes that rendered the result unconstitutional.

The court looks to the facts of this case and analyses the statute. The statutes in question were both unambiguous and clear as to their intent and meaning. Where an employee suffers a work related injury, the employer is legally responsible for “furnishing” an injured employee with the reasonable costs associated with the employee’s medical care. Additionally, there is the above referenced Minnesota statute that limits the amount the employer has to pay for out of state treatment by imposing the statute of the state of treatment. However, the court found that the statutes did not conflict as they addressed two different issues.

The court found for Interfaith, and the plaintiff was denied the additional coverage she requested.
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If you are a civil service member who has been injured on the job in Boston, you may be confused about the benefits you are entitled to. Our experienced Boston workers’ compensation attorneys understand your confusion and we can help guide you through the process.

A recent case came out of Rhode Island dealing with the confusion surrounding workers’ compensation cases. Casale v. City of Cranston, No. 2010-162-Appeal (R.I. S.Ct. Apr. 4, 2012). This case involves a firefighter named James Casale (Casale or plaintiff) who was injured in a collision while he was driving to the site of an emergency. Plaintiff was employed as a firefighter and fire-truck driver for the City of Cranston (Cranston or city).

On the date of the collision the party who was at fault for the accident was driving his vehicle negligently and because of this negligence the plaintiff and the at-fault driver collided. This negligent driver was uninsured at the time of the collision.

Because of this accident, the plaintiff suffered severe injuries. Plaintiff was unable to perform his job related activities for a significant period of time. When a firefighter or civil service member is injured while on the job, the government employer is responsible for providing compensation. This compensation for injuries sustained while on the job is often referred to as injured-on-duty (IOD) benefits. Consistent with the state statutes governing IOD benefits, the city awarded plaintiff benefits greater than $50,000.

Although the plaintiff had received the benefits from the City, he proceeded to enter a claim with his insurance company (Amica) for uninsured motorist (UM) benefits. Consistent with the contractual duties of Amica, it paid the plaintiff the difference between the policy limit of $100,000 and the amount plaintiff received in IOD benefits from the city. This insurance claim is what caused the dispute between the city and the plaintiff.

UM is a type of coverage that is offered through your automobile insurance carrier. In many states this type of coverage is required, although that requirement is not in every state. When you purchase UM, your insurance company agrees to stand in the shoes of an at-fault uninsured driver who causes an accident with you. This is sometimes seen as a third-party liability because the insurance company is not a party to the collision.

Once the city discovered that the plaintiff received these UM benefits from Amica, the city argued that it was entitled to a reimbursement for the amount the city had paid in IOD benefits. The city looked to the state statute governing liability of third parties for damages. The purpose of this statute is to prevent an injured party from collecting double the amount of benefits. The city argued that the insurance company should stand in the shoes of the liable party and because of this; the city should not have had to pay IOD benefits.

Plaintiff countered this by arguing that he was not collecting double the benefits, in fact he only received the total of $100,000. Plaintiff had not collected double what he was entitled to because the insurance company decreased the amount of IOD benefits he had received from the UM policy limits.

The lower court originally heard this case and held on behalf of the plaintiff. The Rhode Island Supreme court upheld this lower court decision and because the plaintiff had not collected double the damages, the city was not entitled to reimbursement.

This case illustrates how critical it is to understand the benefits you are entitled to before you apply for benefits.
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