Massachusetts Workers' Compensation Lawyer Blog

December 18, 2015

Excavation Collapse Kills Ludlow Worker, OSHA Hands Out Maximum Fine.

Trenching and excavation are among the most dangerous construction-related operations in the country today. Employers and employees must be highly educated on everything from trenching safeguards to cave-in protection before engaging in this type of work. An incident in Massachusetts earlier this year serves as a grim reminder that employees cannot always rely on the employer to ensure the safety of their working environment. On July 31, 2015, Davide Nascimento was killed while installing a sewer line in an excavation. When a portion of the roadway above him collapsed, it broke a water main pipe. Water rapidly filled the excavation, trapping and drowning 28-year-old Nascimento. Contact a Massachusetts Workers’ Compensation Lawyer Today.

The inherent dangers of Trenching Work: The greatest risk to workers is the potential for cave-ins. They are the most common accident in this field and frequently result in fatalities. In fact, trench collapses are responsible for dozens of fatalities every year. Beyond cave-ins, other hazards include falls from high places, falling debris, hazardous or toxic atmospheres, and incidents with equipment.

Never enter an unprotected trench: Unless an excavation is made entirely in stable rock, trenches require a protective system if they are 5 feet deep or greater. If they are 20 feet deep or greater, the protective system must be designed by a professional engineer or based on a professional engineer’s tabulated data.

Know your protective systems: There are multiple protective systems, and the required system depends on the job you are doing. For example, a sloping system cuts the trench wall at an angle so that it slopes away from the excavation. A shoring system involves the installation of an aluminum hydraulic or similar support to prevent cave-ins from soil movement. A shielding system uses trench boxes or similar supports to protect workers from soil cave-ins. Designing these systems is extremely complex and requires the expertise of a registered professional engineer.

Always have a competent person: Standards set by the Occupational Health and Safety Administration (OSHA) require daily inspection of trenches by a ‘competent person.’ This is an individual with the ability to identify hazards or hazardous working conditions, including those that may be unsanitary or dangerous to workers. This individual is authorized to eliminate or control such hazards by taking prompt action to correct them.

Make sure you have safe access in and safe access out: In order to safely enter and exit an excavation, it is essential that all workers have access to ladders, ramps, steps, and any other means of exit. If these devices are not well maintained or located within 25 feet of workers, the consequences can be disastrous. Continue reading

December 16, 2015

Winter Safety for Massachusetts Construction Workers

by Altman & Altman

Construction work slows in Massachusetts, but does not come to a stop. In major cities like Boston, many construction workers are on-the-job year round. Considering that construction is already one of the most dangerous occupations, adding the hazards of winter weather can dramatically increase the risks. In Massachusetts, snow, ice, extreme cold can lead to disaster if workers and employers don’t follow safety protocol. Taking proper precautions can significantly reduce the risk of serious injury and death. Contact a Massachusetts Workers’ Compensation Lawyer Today.

Winter Building and Construction Safety Tips

The Occupational Health and Safety website offers the following “winterizing” safety tips for all types of building and construction jobs.

Avoid fire hazards: Wooden ladders should be replaced with non-combustible ladders. Make sure to store materials away from open flames at all times. Temporary heating devices should comply with local fire codes.

Protect pipes: For starters, do not attempt to thaw frozen pipes with an open flame. Not only can this cause fires, it can also result in a steam explosion. To thaw frozen pipes, use a heat lamp, space heater, or heat gun only. Ensure that any worker using these devices is properly trained to do so.

Protect water tanks: Roof water tanks should be regularly checked to ensure that they do not freeze.

Remove debris: Debris always poses a risk in work environments, but this is especially true for winter construction. Ice and snow on rooftops and overhangs should be cleared regularly to prevent falling to street level. Heavy snow can also hide dangerous materials that could fall to a lower level or cause a worker to trip.

Make sure that equipment and temporary structures are stable and secure: All construction materials, including ladders, netting, and accessories, can shift in inclement weather. Small items can be stored in a toolbox or other container. Large equipment and temporary structures, such as scaffolding, fencing, and sidewalk sheds, should be secured as well.

Avoid working in icy conditions: Regardless of how important or time-sensitive the job is, working on scaffolding in snow and ice is never a good idea. Unless you are trying to remedy a hazardous situation, stay off scaffolding in snow and ice. The same is true during storms and high winds.

Avoid using hoists in inclement weather: During heavy rain, ice, snow, and high winds, do not use hoists. In addition, if a hoist has been exposed to winds of 35 mph or more, it should be inspected before future use.

Inspect cranes for use in inclement weather: To keep cranes functioning safely, they must be properly stored, maintained, and inspected on a regular basis. Check for water and ice accumulation on the crane, which can result in a slip and fall or a falling ice hazard. Continue reading

December 16, 2015

Construction Staging and Scaffolding Collapses Can be Devastating to Massachusetts Workers

by Altman & Altman

Year in and year out, on the job worker falls from high places are the number one cause of fatalities in the construction industry. Falls may occur due to faulty equipment, human error, slippery surfaces, safety violations and lack of proper personal protection equipment. In Massachusetts, and many other states another major cause of fatal falls is poorly constructed scaffolding or construction staging. These types of structures are frequently used in construction projects and typically dot the skylines of all major cities at any given time. Tall buildings are covered in scaffolding to allow workers to reach upper levels that are inaccessible by a ladder. When staging is unstable, workers can fall multiple stories, causing serious injuries and death.

Boston Man Injured Last Week in Scaffolding Collapse

In a recent accident, a Boston man fell 50 feet when part of the construction staging he was on collapsed. The incident, which occurred last Thursday, took place at a construction site at 65 Charter Street in the North End. The 42-year-old man, who has not been identified, was taken to Massachusetts General Hospital for treatment of his injuries. However, it is not yet known if the injuries were serious or life-threatening.

Similar incidents have occurred in Boston and in other major U.S. cities, and the severity of injuries varies greatly. For example, three people were killed in Boston when a 10-ton scaffolding collapsed and fell 13 stories in 2006. In 2011, scaffolding on a building in Harlem collapsed, landing on a bus and injuring 18 people. A year later, three New York City construction workers were left dangling from a 17th story window when staging collapsed in the Upper East Side. And earlier this year, scaffolding collapse accidents in Houston and Raleigh, N.C., resulted in multiple serious injuries and fatalities.

What Causes Staging / Scaffolding to Collapse?

Any type of accident or dangerous condition can lead to a staging / scaffolding collapse, or a fall from this type of structure. However, poorly constructed or inadequately inspected scaffolding is often the cause. Other possible causes of staging and scaffolding collapses include:

Old or weak materials

Improper maintenance

Scaffolding that is improperly secured

Missing or defective brake

Missing or faulty safety systems

Following safety protocol before using suspended staging and scaffolding is extremely important. Unfortunately, victims of scaffolding collapses are more likely to suffer serious injuries or death than victims of most other work-related accidents. Continue reading

December 9, 2015

Emotional Injuries – Are They Covered by Massachusetts Workers’ Compensation?

by Altman & Altman

Most Massachusetts workplace injuries are covered by workers’ compensation benefits. On-the-job accidents, such as chemical burns, falls from high places, inhalation of toxic fumes, being struck by an object, and work-vehicle accidents can result in serious physical injuries and even death. But what about emotional injuries? In Massachusetts, mental and emotional injuries are typically covered by workers’ compensation if they result from eligible workplace events. Contact a Boston Workers’ Compensation Lawyer Today.

A recent MA workers’ comp claim filed by a Suffolk County Sheriff’s Department employee highlights a notable exception in the Massachusetts workers’ comp statute. Joseph Upton, a jail officer who started working at the sheriff’s department in 1991, was terminated after a jail assault investigation revealed that he had filed false reports about the incident. However, upon following a grievance, his job was reinstated in 2001. Upton was scheduled to receive back pay, minus any unemployment benefits he received while not working. Although the sheriff’s department appealed the award of back pay, the MA Supreme Court upheld the award in 2008.

Upon reinstatement, Upton was required to submit a signed document that detailed his unemployment earnings while off work. However, after learning that the jail officer may have underreported outside earnings, the sheriff’s department requested that Upton meet with investigators to discuss his signed statement. Immediately following the meeting, Upton went to the hospital, complaining of chest pains and shortness of breath. Shortly after, Upton filed a workers’ comp claim, requesting benefits for emotional injuries suffered as a result of the stressful investigation.

Injuries Resulting from ‘Personnel Action’ are Not Covered

Upton’s claim for benefits was denied by the administrative law judge because his disability was the result of a “bona fide personnel action.” Chapter 152 of the Massachusetts workers’ comp statute specifically states, “No mental or emotional disability arising principally out of a bona fide, personnel action including a transfer, promotion, demotion, or termination except such action which is the intentional infliction of emotional harm shall be deemed to be a personal injury within the meaning of this chapter.” As Upton’s meeting with investigators was deemed a “personnel action,” his injuries weren’t eligible for benefits. This case serves as a reminder that Massachusetts employees are not eligible to receive workers’ comp benefits for injuries that occurred due to a normal personnel action, including investigative procedures. This is even true for physical injuries, such as chest pains or shortness of breath. Continue reading

December 8, 2015

Preventing Slip and Fall Accidents in Boston Restaurants and Food Service Jobs

by Altman & Altman

Restaurant, food service, and food manufacturing workers have a higher risk of slip and fall accidents than workers in most other occupations. In fact, according to Liberty Mutual’s Workplace Safety Index, 45% of workers’ compensation claims in restaurants are due to falls. Many factors contribute to the high risk, including spills, improper footwear, tripping over flooring material, dim lighting, and walkway obstructions. Although adequate housekeeping can significantly reduce slip and fall accidents, the fast-paced, chaotic nature of many restaurant kitchens can make it difficult to keep floors clean, dry, and clear at all times. If you work in the restaurant or food service industry, the tips below can help keep you on your feet. Contact a Massachusetts Workers’ Compensation Lawyer Today.

Safety Tips

Floor Mats: In addition to clean, dry floors, well-maintained mats are an essential component of any commercial kitchen. As they are frequently subjected to spills, high traffic, and cleaning products, food service mats need to be replaced often. It’s also important to get the right mat for the job. The mats used in industrial plants are designed to provide foot comfort and traction, and not much more. Food service mats, however, should provide additional slip and fall protection against substances such as ice, grease, and oil. Each mat should also be well suited to its area of use. For example, mats in high traffic areas should be low profile or have a ramp to prevent tripping over edges. Thick mats with holes, on the other hand, are good for allowing spills to drain onto the floor underneath.

Footwear: Proper footwear is essential for food service and restaurant workers. Slip and fall accidents make up nearly half of all workers’ compensation claims in the food service industry. Considering that the food service environment typically consists of slippery floors, hot surfaces, boiling liquids, and knives, shoes with excellent traction and support are vital to the safety of all employees. The two most important components of a safe shoe are the quality of the materials and the design of the sole. Soft, durable materials are best, and tread patterns should not run in the direction of travel as this may accentuate forward motion.

High Cost of Slip and Fall Injuries: According to the National Safety Council, the average slip and fall injury costs up to $28,000. These calculations include medical expenses, workers’ compensation benefits, paperwork, lost wages, and an increase in insurance premiums. Tens of thousands of restaurant workers are treated in hospital emergency rooms for slip and fall injuries every year. The majority of the accidents are blamed on wet or greasy floors. Continue reading

November 30, 2015

Employer Neglects Safety Procedures; Worker Fatally Injured As A Result

by Altman & Altman

It’s an all-too-familiar scenario: an employer neglects to follow proper safety procedures and a worker is subsequently injured.

Such was the case for an excavation worker in Longmeadow this summer. Davide Nascimento was working on the installation of a sewer line along Hazardville Road in Longmeadow, when a portion of roadway collapsed and broke a six-inch water main pipe causing an instant flood of the excavation and Nascimento to drown.

An inspection by the Springfield Area Office of U.S. Department of Labor’s Occupational Safety and Health Administration revealed that Nascimento’s Ludlow-based employer A. Martin & Son Construction, Inc. did not take adequate measures to protect the water line against damage. Inspectors also found that the company also did not inspect the excavation for evidence of a situation that could result in a cave-in, such as damage from the previous night’s rainstorm that weakened excavation walls.

Springfield area director Mary Hoye said, “Mr. Nascimento would not have died had his employer followed proper procedures to identify and eliminate excavation hazards. Trenching and excavation operations are among the most dangerous in construction work. Employers must educate themselves and employees on trenching safeguards, including cave-in protection and having a competent person on-site to identify hazards and promptly correct any hazards.”

OSHA consequently cited A. Martin & Son Construction this month, for two serious violations of workplace safety standards. Each citation carries a proposed penalty of $7,000, the maximum fine for a serious violation.

November 23, 2015

On-the-Job Scarring Victims May Soon Be Eligible for Massachusetts Workers’ Compensation Benefits

by Altman & Altman

In Massachusetts, when a worker is injured on-the-job, he or she is generally eligible for workers’ compensation benefits. Workers’ compensation is an insurance program designed to replace lost wages and cover the cost of medical expenses when an individual is injured in the course of employment. Certain medical costs may not be covered, depending on the worker’s jurisdiction. In Massachusetts, for example, workers are not eligible to receive benefits for scarring injuries to the arms, legs, and torso. However, due to a recent case involving a metal worker that was severely burned after falling into a vat of chemicals, this may soon change. Contact a Massachusetts Workers’ Compensation Attorney Today.

Sylbert Stewart, a 56-year-old Lowell resident, suffered second and third degree burns on both legs and feet while working at a factory in Belmont. Today, Stewart is permanently scarred and in constant pain. His injuries resulted in a 40% decrease in earnings, and he has received no compensation for the scarring injuries. In Massachusetts, disfiguring injuries must occur on the face, hands, and neck in order for the worker to be eligible for workers’ compensation benefits. However, recent advocacy from the Massachusetts Coalition for Occupational Safety & Health members and allies may have had enough of an impact to change this requirement. In late October, a Senate bill was approved 36 to 1 that would allow scarring victims to receive compensation for their injuries, regardless of where on the body the injuries occurred. The bill, which was sponsored by Senator Sal DiDomenico and Representative Sean Garballey, would remove the face, hands, and neck requirement and would increase the victim’s compensation to 22.5 times the average weekly wage in Massachusetts. Continue reading

October 28, 2015

OSHA’s Severe Violator Enforcement Program – Goal is to Hold Most Severe Violators Accountable

by Altman & Altman

The Occupational Safety and Health Administration (OSHA) enforces workplace safety regulations across the country. It is the employer’s responsibility to adhere to these regulations, but they don’t always take heed. Unfortunately, when employers violate these regulations, workers can get seriously injured and even die. An employee injured on-the-job is generally entitled to compensation for medical expenses, lost wages, and other associated costs.

Although employees may be eligible for Massachusetts workers’ compensation benefits if they are injured at work, the main goal is to prevent injuries from happening in the first place. Employees often trust in, and rely on, OSHA to keep a close eye on their work environments. However, this is simply not always possible. OSHA does not have the funding to look into every accident or violation claim. To prevent major violations from slipping through the cracks, the agency implemented its Severe Violator Enforcement Program (SVEP) to protect employees from exceptionally dangerous work hazards.

SVEP was created to replace OSHA’s Enhanced Enforcement Program (EEP), which had proven quite ineffective. The goal with SVEP is to hold the most severe violators accountable. Possibly due to the failure of EEP, this new program has been receiving criticism from some stakeholders who claim that it continues to overlook the worst violators while simultaneously placing employers on the list that shouldn’t be on there. However, the 2013 self-review of SVEP found the program to be effective.

In order for an employer to be placed on the SVEP list, several criteria must be met. For starters, a) the violations have to be deliberate or repetitive, or failure to resolve the violations must result in hospitalization of at least three employees, or the death of one or more employees, b) there must be at least two serious injuries, such as falls or amputations, that resulted from the employer’s failure to comply with regulations, c) or there must be at least three violations and failure to correct the discharge of harmful chemicals. Continue reading

October 23, 2015

Heavy Boxes Fall from Big Lots’ Shelves and Seriously Injure Employee

by Altman & Altman

Discount retailer Big Lots Stores Inc. is facing $66,000 in fines from the Occupational Safety and Health Administration (OSHA) after an employee was injured at a store location in Danvers, Massachusetts. The store’s assistant manager wound up in the hospital after being struck by several falling boxes of patio furniture and other items. The boxes, which were being kept in the store’s rear stockroom, weighed up to 53 pounds each. If you’ve been injured at work, call a Boston Workers’ Compensation Attorney.

Danvers’ Big Lots Store Cited for Cluttered Aisles and Improperly Stacked Boxes

Following an investigation by OSHA, it was determined that the accident was a result of negligence. Boxes were stacked high throughout the storeroom and many were haphazardly placed in an unstable condition. The aisles of the storeroom presented another problem. They were cluttered with an array of items, including broken wooden pallets, boxes of stock, and pieces of cardboard. Conditions like these are dangerous for multiple reasons. The most obvious issue with clogged walkways is the inability to quickly exit the building in the event of an emergency, such as a fire. Additionally, employees can trip and fall in such conditions, leading to broken bones, sprains, and many other injuries.

In response to the store’s conditions, and the injuries suffered as a result, Big Lots Stores Inc. received citations for two repeated violations. OSHA had cited the company previously in 2014 for similar issues at store locations in Warner Robins, Georgia, and West Babylon, New York. The subsequent citation was issued on October 2, 2015, and Big Lots Stores Inc. must respond appropriately within 15 days. To fulfill this requirement, the discount retailer must comply with the demands issued in the citation, request a conference with OSHA, or contest the citation and any associated penalties. Continue reading

October 2, 2015

Recently Promoted MA Worker Denied Workers’ Comp Benefits Based on Higher Wage

by Altman & Altman

In a recent and unprecedented MA workers’ compensation case, a hospital employee was injured at work after learning of an upcoming promotion, but cannot receive benefits based on the higher wage. According to an administrative judge, the employee’s promotion was an absolute certainty, and the worker’s comp benefits should be calculated based on the new wage. However, the Department of Industrial Accidents (DIA) reviewing board appealed that decision, stating that, “It is the position held at the time of the accident which governs, not some prospective plan in the future which may or may not come to fruition.”

Massachusetts Workers’ Comp Benefits Traditionally Based on Prior 52 Weeks Average Weekly Wage

The DIA’s decision has prompted a further investigation into the workers’ comp statute and how it addresses such out-of-the-ordinary circumstances. Provisions within the statute allow a hearing judge to deviate from using the employee’s prior 52 weeks in average weekly wage (AWW) calculations when unusual circumstances are present. Unfortunately for this employee, the DIA does not consider this situation to warrant deviation from the traditional rules. According to Administrative Law Judge, William Harpin, “The definition of AWW [cannot] be stretched so far as to cover wages that have yet to be earned in a position not yet held.”

Vikki Harris, a Radiology Service Representative at Partners Healthcare System, had been earning an AWW of $703.56 for approximately one year when she learned of her upcoming promotion to Patient Service Representative. Her new AWW was scheduled to be $730, which was similar to other workers in that position. Less than one week before her scheduled promotion, Harris slipped on a wet floor and fractured her kneecap. The fracture left Harris completely incapacitated and unable to work for months. Although Harris is no longer completely incapacitated, she is still physically unable to go back to work. In this particular case, the employee’s injury prevented her from earning a higher paycheck, but that hasn’t changed the outcome of the ruling.

Under §51 of the MA worker’s compensation statute, a worker’s AWW can be increased if he or she can prove that age or acquisition of skills would have most likely led to a higher AWW on the open labor market. However, according to the DIA, this particular case does not qualify under §51. “A simple promotion well into a career does not qualify as a likely wage increase under this statute,” said Harpin. Additionally, since the initial judge had already determined that Harris was entitled to the higher AWW, he never addressed whether or not §51 applied. Had Harris cross-appealed on such grounds, the outcome may have been different. Continue reading