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.

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.

In this most recent case, the Administrative Judge, both at conference and hearing, awarded the Employee Section 34 benefits. After hearing, the Insurer appealed to the Reviewing Board, arguing that the Employee’s serious and wilful misconduct cause his injury and, as a result, his compensation should be barred per the provisions of Section 27. The facts show that the Employee suffered a number of industrial accidents over the years, with injuries in 1991, 1995, 1996, and 2001. The Employee returned to work around 2004, as a laborer, going against the advice of several doctors. Upon his return to work, he was taking methadone and percocet daily to control his pain, and make it through the work day. He was injured again in April of 2012, for which this present claim was based.

The Insurer’s position was that because he went against the advice of his doctors in returning to work in 2004, this constituted “serious and wilful” misconduct on his part. They further argued that because he had actual knowledge of his severe and permanent back injury, returning to work as a laborer “created a substantial probability” that he would suffer a further disabling back injury. Both the Administrative Judge at hearing, and the Reviewing Board rejected this argument.

In their decision, the Reviewing Board notes that “A plain reading of the language requires that the alleged misconduct must be the cause of the injury.” (Emphasis added). In this case, the employee was injured when a co-worker dropped a piece of staging onto his back. It had nothing to do with the Employee’s prior injuries, nor his working for several years against the advice of doctors. This was an unfortunate accident of being in the wrong place at the wrong time. “Where the employee’s serious and wilful misconduct at the time of the injury is the crucial element under section 27, an injury that is not proximately caused by his alleged misconduct does not operate to bar the employee’s claim.”

Situations involving both Section 27 and Section 28 are somewhat rare. However, they do come up on occasion. Situations like these are very fact specific. An experienced workers’ compensation attorney is essential in determining the viability of any such claims.

Workers’ compensation cases, in general, can be quite complex. If you are an injured employee with a workers’ compensation matter, having an experienced workers’ compensation attorney, who is knowledgeable in this area of the law, as well as the practices at the Department of Industrial Accidents, is essential in assuring that your rights are protected.

At Troupe Law Office, we concentrate our practice in the area of workers’ compensation law in Massachusetts, and have over 40 years of experience. Call us any time for a free consultation of your case.

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.

So, the question becomes, what constitutes “a major cause?” While every case is unique and presents an almost endless array of possibilities of interpretation, the Reviewing Board, in the present case, gives a nice summary of the well established case law pertaining to this question.

In the present case, Dr. Anas, the Board Impartial physician opined that the employee’s disability was 50% related to her underlying, pre-existing, non-work-related conditions, and the remaining 50% was attributable to her injury at work. So does a work injury which contributes only 50% to a resultant disability rise above the standard set forth in §1(7A)? Here, the Reviewing Board ruled that 50% does, in fact, satisfy the “a major” requirement of § 1(7A). Citing Goodwin’s Case, 82 Mass.App.Ct., 642 (2012), which stated that “a major cause need not be more than fifty percent.” (internal citations omitted).

Going further, they also cite a number of other cases. Durfee v. Baldwin Crain and Equip, 20 Mass. Workers’ Comp., Rep. 163 (2006), states, “In fact, a smaller percentage is capable of satisfying the “a major” standard.” Lesione v. Corcoran Mgt. Co., 22 Mass. Workers’ Comp. Rep. 153 (2008), states that “medical opinion that work injury was forty percent of cause satisfied” the 1(7A) standard. Finally, Abad v. Stacy’s PITA Chips Co., 25 Mass Workers’ Comp. Rep. 173 (2011), “in the proper circumstances a twenty percent contribution of a work injury to the disabling condition could satisfy the “a major” standard.”

As mentioned above, every case presents a unique set of facts and every case will likely give rise to their own unique interpretation of the 1(7A) standard. However, this case gives a good summary of some significant prior decisions in making the determination of what percentage a work injury must contribute to an underlying disability, in order to get beyond the 1(7A) standard.

Pre-existing conditions play a role in a large portion of the cases we, at the Troupe Law Office, handle on a daily basis. If you have sustained an injury at work, of any kind, it is crucial that you speak with an experienced workers’ compensation attorney as soon as possible. Please visit our web site at https://www.troupelawoffice.com for more information. Or, call us at (978) 531-7401, or email at atroupe@mac.com. We offer free consultations for all cases. We look forward to working with you.

Pursuant 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.

The Reviewing Board rejected the Self-insurers’ arguments. They found that the Judge correctly adopted the opinion of the 11A Impartial Physician and that the Judge acted within her discretion in giving “decisive weight” to the Employee’s subjective complaints of pain. The Reviewing Board also found “harmless error” in the Judge’s failure to list or consider the medical evidence it submitted at conference, which was part of the record. Citing Driscoll v. Town of Framingham, (February 25, 2014)(citation omitted), “misinterpretation of medical opinion rendered harmless when viewed in context of other findings.” The evidence in question, actually supported the Employee’s claim, and therefore, the Reviewing Board found this to be a harmless error.

As such, the favorable decision of the Administrative Judge was affirmed.

Registered Nurses and other nursing staff are among the most common clients we encounter at the Troupe Law Office, as is the mechanism of injury that occurred in this case. Injuries of such can often be career ending, given the physical demands in the nursing profession.

If you have sustained an injury at work, of any kind, it is crucial that you speak with an experienced workers’ compensation attorney as soon as possible. Please visit our web site at https://www.troupelawoffice.com for more information. Or, call us at (978) 531-7401, or email at atroupe@mac.com. We offer free consultations for all cases. We look forward to working with you.

In 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.

Relying, at least in part on Arruda v. Cut Price Pools of Somerset, Inc., at 14 Mass Workers’ Comp. Rep. 169, (2000), the administrative judge did, in fact, dismiss the employee’s claim, but without prejudice, and the matter was appealed to the reviewing board for a determination of the issue.

In conducting their analysis, the Reviewing Board found the reliance on Arruda to be misplaced. Instead, they stated that “Few actions taken by a judger are more subject to the exercise of discretion that the dismissal of an action.” Further, “Involuntary dismissal is a drastic sanction which should be utilized only in extreme situations.”

Further, the Review Board notes that factors to be considered in making this determination are: 1) whether there is convincing evidence of unreasonable conduct or delay; 2) whether the party seeking dismissal would suffer prejudice if its motion was denied, and 3) whether there are more suitable, alternative penalties.

The Reviewing Board found that the Administrative Judge made some findings on these factors, however, failed to address whether the dismissal prejudiced the insurer, and to what extent, noting only that although an appeal was pending, “it would be fair to dismiss the employee’s appeal…without prejudice.”

So, while the Reviewing Board did note that the Administrative Judge made some of the necessary findings, the specific finding of whether or not the workers’ compensation insurer would or would not suffer substantial prejudice due to a without prejudice dismissal, was left unaddressed. Therefore, the Reviewing Board, found that they were unable to address whether or not the Administrative Judge’s dismissal was appropriate.

Workers’ compensation cases can be quite complex. If you are an injured employee with a workers’ compensation matter, having an experienced workers’ compensation attorney, who is knowledgeable in this area of the law, as well as the practices at the Department of Industrial Accidents, is essential in assuring that your rights are protected.

At Troupe Law Office, we concentrate our practice in the area of workers’ compensation law in Massachusetts, and have over 40 years of experience. Call us any time for a free consultation of your case.

In 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.

Citing Foley’s Case, 358 Mass. 230, 232 (1970), the Reviewing Board noted that following a previous ruling where the employee was found to be partially disabled, the employee carries the burden of demonstrating that his/her condition worsened “not due to advancing age,” but owing to his industrial accident.

In other words, it is insufficient to merely establish that an employee’s condition got worse. More is needed. In addition to showing the worsening of the condition, the employee must also show that this worsening was due to the original injury, and not due to other, unrelated factors. For example, many injuries get worse over time due to completely unrelated factors, such as advancing age. In the present case, the Insurer argued that the evidence tended to show that the employee’s advancing age, and general decline in health, led to the worsening. The Reviewing Board ruled that this is insufficient to establish the “worsening” requirement.

The Reviewing Board then indicates that a finding of a work-related worsening must also be made in conjunction with an expert medical opinion. It is insufficient for the Judge to make this ruling based solely on the Employee’s subjective complaints, citing Docos v. T. J. McCartney, 25 Mass. Workers’ Comp. Rep. 39, 42 (2011).

In the end, the Reviewing Board recommitted the case back to the hearing level, for further finding consistent with their opinion.

Situations like these come up often, where an employee sustains a work injury, is put on partial workers’ compensation benefits, and then the condition progresses to the point where the employee can no longer work. It is quite important for an injured employee to have an experienced workers’ compensation lawyer representing them. Troupe Law Office has over 40 years of experience in representing injured employees in Massachusetts workers’ compensation cases. Call us any time.