Massachusetts Workers Compensation Lawyers Blog

In the summer of 2010, three teenage workers were hired to help sift out chunks of wet corn in a grain silo in Illinois.

Our Boston workers’ compensation lawyers understand that all three were buried alive. Only one survived – and even then, only by inches after a bucket that had been placed over his head by a firefighter to keep the corn from obstructing his breaths.

One of the victims was just 14 years-old.

None were wearing or had been instructed to wear proper safety harnesses for the work they were doing.

It’s the kind of accident we think of as being isolated and perhaps only occurring in the Midwest. But the fact is, the grain storage business is booming, according to a recent investigative piece by the Center for Public Integrity. In fact, Massachusetts has several grain storage facilities throughout the state.

CPI, along with a team from NPR, reviewed years’ worth of OSHA data and discovered that 180 people had died in grain entrapments in commercial facilities between 1984 and 2012. These sites included bins, but also rail cars and other locations where large amounts of grains are kept.

In cases of death, initial fines proposed by OSHA were in the neighborhood of more than $9 million. Eventually, though, those fines were slashed by nearly 60 percent as the cases were ultimately settled. The five largest fines ever received in such cases ranged from $530,000 up to $1.5 million after being but by 50 to 98 percent.

The case involving the three teens in Illinois resulted in a $200,000 fine – after OSHA reduced it by nearly 65 percent. The family-owned company also agreed to get out of the business and to notify the federal agency if they went back into it so strict oversight controls could be implemented.

For a company that earned $6.5 million in federal farm subsidies from 1995 to 2011. A $200,000 fine seems like hardly a drop in the bucket.

The teens had been hired to break up the rotten hunks of corn that were clogging the flow of the crop into the center of the bin. the 14-year-old reportedly trained the other two older teens. An older farm worker stopped by later in the day to instruct them to stay away from the center of the bin.

There was no safety training. Harnesses were unused in the shed next door.

When one of the farm workers opened one of the holes in the bottom of the bin to help improve the corn’s flow, it turned disastrous, with the corn effectively turning into a kind of quicksand. The young trio were quickly swallowed up. The surviving teen said he watched before his eyes as his best friend said the Lord’s prayer and then breathed his last.

Among OSHA’s finding of numerous safety violations was that the 14-year-old should never have been doing such high-risk farm work in the first place. Federal law prohibits workers under the age of 16 from entering confined environments or spaces. That includes grain storage bins.

OSHA reports that young workers in particular are at grave risk for suffocation hazards in grain bins. In 2010, a total of six workers under the age of 16 were involved in grain bin accidents. Five of them died.

These incidents are especially perilous, usually involving numerous deaths, as more than one worker is often inside the bin. Workers attempt to rescue one another and become trapped themselves.
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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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