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WORKERS' COMPENSATION LAW |
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OCTOBER 2008 JUNE 2008
OCTOBER 2007 OCTOBER 2008 - MA SJC RULES THAT SECTION 7A PRIMA FACIE EVIDENCE RULE DOES NOT APPLY TO CLAIMS FOR SERIOUS AND WILFUL MISCONDUCT UNDER WORKERS' COMPENSATION ACT. Section 7A of the Massachusetts Workers’ Compensation Act states that if “the employee has been killed or found dead at his place of employment or, in the absence of death, is physically or mentally unable to testify, and such testimonial incapacity is causally related to the injury,” it shall be prima facie evidence that the claim comes within the provisions of the Act. In Moss’s Case, 451 Mass. 704 (2008), the Supreme Judicial Court held that the prima facie rule created by section 7A does not apply to the element of serious and willful misconduct needed to support a claim for double compensation under section 28. Section 28 provides for double compensation if the employer or a supervisor engaged in serious or willful misconduct. In this case, the employee was riding as a passenger in a motor vehicle owned by his employer when it was involved in an accident. The employee was ejected from the vehicle and died at the scene. His widow sought double compensation under section 28, arguing that the latch mechanism of the door was defective, that the employee was ejected because the door opened during the accident and that the employer engaged in serious and willful misconduct by not correcting the defect. She also argued that since the employee died at the scene, section 7A created prima facie evidence that the employer engaged in serious and willful misconduct. Rejecting this argument, the Supreme Judicial Court held that the prima facie effect of section 7A only applied to the elements of a claim for regular compensation; it did not apply to the element of serious and willful misconduct required to support a claim for double compensation under section 28, The court went on to uphold factual findings that the employer had not engaged in serious and willful misconduct, that the door was not defective, that the door remained closed during the accident and that the employee was ejected through an open window of the vehicle. JUNE 2008 - MA SJC Rules That Employee Injured In Auto Accident While Traveling Home After Working 27 Hours Was Not Entitled To Workers’ Compensation Under the going and coming rule, an employee is generally not entitled to workers’ compensation benefits for injuries suffered while traveling to and from work. In Haslam’s Case, 451 Mass. 101 (2008), the employee argued that the court should create an exception to that rule where the employee was involved in an accident because he was exhausted after working a very long shift. The SJC disagreed, ruling that the injury was not compensable, in the absence of evidence that the employer required the employee to work longer hours than usual. The employee had worked a 27 hour shift as a foreman supervising carpenters who were building forms used in the Central Artery project. There was a delay in completing the work, and the employee testified that he remained on the job because “a carpenter has to be there while the concrete's being poured, to the finish”, and because “if [he] didn’t finish it, [he] probably wouldn’t have a job.” No one, however, told the employee that he had to stay, and under the applicable union contract, the employer could not force him to work overtime. The SJC distinguished cases from other jurisdictions involving employees who were injured in auto accidents after an employer required them to work long hours. In this case, the employee had not proven that he was required to do so. It was not enough that the employee subjectively believed that negative consequences would have followed if he left at the end of his regular shift. OCTOBER 2007 - Effect Of Medical Examination The Appeals Court has held that, in the circumstances of this case, the administrative judge properly awarded benefits to the employee, even though the IME physician had concluded that he could return to work. See Dalbac’s Case, 69 Mass. App. Ct. 306 (2007). The employee was a tank truck driver who injured suffered as torn rotator cuff. A physician who conducted an IME concluded that the employee was capable of returning to work full time. The employee testified and described the strenuous work involved in his job. Each day, “drove the tractor to the employer's lot near Worcester, connected an empty tanker to the tractor, drove it to loading docks in New Haven, Connecticut, filled the tanker with the liquid chemical, hauled it to the American Polymers Company in Oxford, and emptied the styrene polymer liquid into underground tanks at that site. He worked Monday through Friday from 1:00 A.M. to 12:00 noon. He made two round trips per shift between New Haven and Oxford.” He had to climb in and out of the cab twenty four times a day. He drove a tractor that had 13 gears, and required frequent shifting. He had to connect the tanker to the trailer each day, a task that required bending and overhead reaching. He also had to load the tanker, another task that required climbing and overhead reaching. The tanker weighed over 18,000 pounds fully loaded. The employee also testified that he felt that he was incapable of performing the job, because he continued to experience pain and weakness in his shoulder. Given this testimony, the administrative judge was not required to accept the IME’s conclusion that the employee could return to work. Under G.L. c. 152, § 11A(2), the IME’s report is prima facie evidence, but it is not conclusive. In this case, the administrative judge could properly conclude that the IME’s conclusion was incorrect, because (1) the report did not include any analysis of the employee’s daily work routine; and the doctor had not tested the employee’s overhead arm strength and motion; (2) the IME doctor did not explain how the employee could overcome problems with overhead strength, endurance, pain, and exposure to reinjury and still perform his job; (3) the judge could find the employee’s testimony regarding ongoing pain credible; and (4) the administrative judge needed to assess occupational considerations that were independent of the medical issues considered by the doctor. October 2007 - Cancellation Of Policy The Appeals Court has held that a cancellation of an workers’ compensation policy was ineffective where the insurer did not attempt to send the notice of cancellation to a second address it had for the employer, after the original notice of cancellation was returned as undeliverable. See Pillman’s Case, 60 Mass. App. Ct. 178 (2007). The insurer had issued a policy to Dan’s Paving and Excavating, Inc. (“Dan’s Paving”). The insurer sent the original notice to the address that it had been given as the mailing address for Dan’s Paving. That address had been the mailing address for Dan Paving’s principal, but he moved without informing the insurer. As a result, the notice was returned as undeliverable. The insurer did, however, have a second address for Dan’s Paving in its files - the address where the insured actually conducted its operations. The insurer made no attempt to send the notice to this second address. In these circumstances, the Appeals Court held that the notice of cancellation was ineffective and the policy remained in force, because the insurer should have attempted to send the notice of cancellation to this second address. |
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Liability Law
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