Articles Posted in Reviewing Board Decision

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The Department of Industrial Accidents Reviewing Board recently held that the standards M.G.L. chapter 152, section 27 were not met, thus affirming the decision of the Administrative Judge.  Click here for a link to the case.

M.G.L. chapter 152, Section 27, pertains to situations involving an injury caused by the “serious and wilful misconduct” of the Employee.  In these situations, if it is determined that the injury was, in fact, caused by the serious and wilful misconduct of the employee, no compensations shall be awarded.  Section 27 is, in many ways, the counterpart to Section 28, which deals with serious and wilful misconduct of the Employer.Stock photo boston 1

Historically, both sections are rarely applied because of the high thresholds in making a determination/ruling that the conduct in question rises to the level of “serious and wilful.”  In many ways, the conduct must rise above mere negligence, or even gross negligence, and must be almost to the level of quasi-criminal in nature.  In other words, the conduct in question usually must be quite severe to be considered “serious and wilful” per these Sections.

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Recently, the DIA Reviewing Board in Boston addressed in a recent opinion what percentage a work injury must contribute to establish a “compensable injury” under the Massachusetts Workers’ Compensation Act, where multiple, non-work-related factors are present.

In this most recent case, Jane Sullivan v. Centrus Premier Home Care, the Insurer appealed the decision of the Administrative Judge after Hearing.  One of the points raised on appeal was that the requirements set for in Chapter 152 § 1(7A) were not met with respect to disability after 9/23/09, which was the date of the § 11A Impartial examination.  Section 1(7A) states, in part, that where a work injury combines with a  pre-existing condition, not compensable under the MA Workers’ Comp Act, the resultant condition shall only be compensable to the extent that the compensable/work-related injury remains “a major, but not necessarily predominant cause of disability and need for treatment.”

In laymen’s terms, § 1(7A) states that where a work injury combines with a pre-existing, non-work-related injury, you must show that the work injury remains “a major, but not necessarily predominant cause” of the resultant condition.  The phrase “a major, but not necessarily predominant,” has thus become subject to extensive interpretation by the Judges at the DIA, as well as the Reviewing Board.

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Attorney William H. Troupe recently received a favorable decision from the DIA Reviewing Board in Boston.  The case involved a registered nurse who injured her back while helping to transfer a patient.  She began receiving workers’ compensation temporary total disability benefits for approximately five months, at which point the self-insurer reduced her payments to maximum partial disability.  The employee, through her counsel, filed a claim at the Department of Industrial Accidents, to get her benefits increased back up to the total disability rate.

Stock photo boston 1Pursuant to Section 11A of the Workers’ Compensation Act, the employee was examined by an impartial physician.  After the hearing, the Judge ultimately adopted the opinion of the impartial physician, who found that the employee was restricted “to work which requires her to be able to change positions frequently and not require sitting of more than 30 minutes at a time, no lifting more than 10 pounds and no more than 4 hours a day.”  The Judge was also “persuaded by the employee’s testimony” concerning her subjective complaints of pain.  In her decision, the Administrative Judge ultimately awarded the Employee ongoing total disability benefits.

The Self-Insurer appealed the decision on 3 grounds:  1) that the expert medical evidence failed to support a causal relationship between the employee’s work injury and her disability, 2) the judge’s finding that the employee is totally disabled was not supported by the evidence and reasonable inferences therefrom, and 3) the judge failed to consider all of its evidence.

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The Massachusetts Department of Industrial Accidents Reviewing Board recently addressed the issue of when and how a workers’ compensation claim should be dismissed. In the end, the case was recommitted back to the hearing level for further findings of facet. The reviewing board essentially ruled that situations like this are very fact specific, and certain findings must be made to determine if dismissal is the appropriate course of action.

Stock photo boston 1In this case, the employee’s counsel failed to show up at a scheduled hearing at the Department of Industrial Accidents. The insurer argued that as a result of this absence, their rights under M.G.L. chapter 152, section 10A(3), to a full evidentiary hearing on the matter, were violated. The workers’ compensation insurer contended that they suffered “significant prejudice” to their rights to defend this pending claim.

As a result, the Insurer, through counsel, moved to have the matter dismissed with prejudice. The insurer argued that a dismissal with prejudice was the only proper remedy, because a dismissal without prejudice, would simply allow the employee to file the claim again. As such, the matter could simply be brought forward again, on the same claim and same issues.

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In a recent decision, the Department of Industrial Accidents Reviewing Board in Boston, ruled that in a claim for section 34A permanent and total disability benefits, where a previous decision found the employee partially disabled, the Employee has the burden of proving, not only that his condition “worsened” to the point of rendering him totally disabled, but also that the worsening must be shown to be causally related to the original work injury, and not due to other factors, such as age, or a subsequent injury.

Stock photo boston 1In this case, the employee originally sustained a work injury to his back while lifting a garage door on 2/12/07. A claim for benefits was filed and the matter was ultimately heard at hearing. The Administrative Judge, in his decision, ordered the Insurer to pay section 34 benefits for a closed period, followed by ongoing section 35 partial disability benefits. The employee collected section 35 benefits until a claim was filed for section 34A permanent and total disability benefits on 4/1/11.

Ultimately, the claim for section 34A benefits was heard at hearing, and the Administrative Judge ordered permanent and total disability benefits in his decision. The Insurer appealed this decision on several grounds. One such ground was that the Insurer argued that the Employee failed to establish that he suffered a work-related worsening of his condition since the previous order of partial disability. The Reviewing Board agreed.

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