Ten of the Most Influential Massachusetts Workers’ Compensation Cases

Over the Last 100 Years

Vincent M. Tentindo and Michael J. Tentindo

Introduction

In 2011, the Massachusetts Workers’ Compensation Act (the Act) will celebrate its 100th anniversary. On the eve of this anniversary, it is impossible to overestimate the impact that workers’ compensation statutes have had in providing for injured workers and in allowing industry to prosper without the cost and time involvement of prolonged litigation.

Workers’ compensation statutes are the foundation of the extensive employment legislation that exists today. In workers’ compensation legislation, employees were granted wage replacement, the right to health care for their injuries, vocational training, speedy and simple administrative hearings — all before the social protections established later in the 20th century.¹ All workers, even those just starting out, know that if they are injured, workers’ compensation will be there for them.

Prior to the enactment of workers’ compensation statutes, an injured employee had to prove that a negligent act of the employer caused the injury. Even if one had the ability, knowledge, or social standing to convince an attorney to take the case, proving negligence by the employer was often difficult, seemingly impossible, to accomplish. Two cases illustrate the difficulties injured workers had to overcome. The first, McCarty v. Clinton Gas Light,² was a tort action filed by the employee’s wife after he was killed at work when an unguarded and exposed fly wheel cut off the top of his skull in a narrow passageway.³ At trial, the court directed a verdict for the defendant, and on appeal, the Supreme Judicial Court affirmed.⁴ The court held that there could not be a recovery for Mr. McCarty’s death without evidence that he was in the exercise of due care.⁵ In the second case, McCafferty v. Newando’s French Dyeing and Cleaning Company,⁶ the Supreme Judicial Court affirmed the trial court’s decision, which rejected the claim for damages filed by an injured worker.⁷ In McCafferty, a young woman on her first day of employment sought damages for serious injuries suffered when she fell through an open and unguarded hole in the floor.⁸ Specifically, the court held that the employer is “... under no obligation to make the factory a better one or change it in any way. The employ[ee] takes it as it is. ... he assumes all obvious risks.”⁹ The court emphasized “it is for him to determine whether he will make an examination before going to work or will go to work without making an examination and take his chances.”¹⁰

It was in this setting that the Massachusetts State legislature, responding to and recognizing the need for relief for injured workers, overcame constitutional challenges, historical legislative indifference, and business’s objections, and enacted one of the most significant pieces of legislation ever created by that body.¹¹ In particular, the Act¹² created the Industrial Accident Board¹³ and established a simple and summary administrative proceeding to hear contested cases, allowing for speedy wage replacement without fault and for complete medical care for workers injured in the course and scope of their employment. Notably, employers, rather than taxpayers, funded this Act. Employers received the benefit of “the exclusive remedy rule” that limited their liability in workplace injuries to the benefits payable to the employee under the workers’ compensation system and the assurance that their employees would be taken care of if injured.

On the eve of the 100th year anniversary of the Massachusetts workers’ compensation system, the first such system in the nation, it is important to examine the effect that the judicial system has had on this essential piece of legislation. This examination is best accomplished by examining the ten most influential (and most recognized) Massachusetts workers’ compensation judicial decisions over the last 100 years as the courts analyzed, interpreted, and occasionally expanded the reach and scope of the Act.

Ten of the Most Influential Massachusetts Workers’ compensation Cases

To be considered one of the 10 most influential Massachusetts workers’ compensation cases over the last 100 years, a case must either establish a precedent, effectuate a change in the Act, or be viewed by practitioners as precedent-setting. Of course, any list will be subject to disagreement among both academics and practitioners, and this list is not an exception. However, it is an attempt to provide a thorough review of various significant cases over the life of the Act.¹⁴ The list begins with the most important precedent-setting cases¹⁵ and concludes with cases that effectuated legislative changes in the Act.¹⁶

1. Caswell’s Case: Expanding the Definition of “Scope of Employment”

It is often said that weather can affect history, and that was never more true than in the precedent-setting decision of Caswell’s Case.¹⁷ Prior to Caswell’s Case, courts narrowly interpreted §26 of the Act, and held that for an injury to be compensable, not only must the employee be in the course of his or her employment, but the injury also must have arisen out of the actual performance of the employment.¹⁸ In Caswell’s Case, the Supreme Judicial Court expanded the scope of the Act by stating that “an injury arises out of the employment if it arises out of the nature, conditions, obligations, or incidents of the employment; in other words, out of the employment looked at in any of its aspects.”¹⁹

Mr. Caswell was injured when a brick wall fell on him while he was working on the highest story of a building during a tropical storm in 1938.²⁰ During the storm, the force of the wind loosened the bolts anchoring the roof, causing the brick wall to disintegrate and to fall upon Mr. Caswell.²¹ Benefits were awarded by the administrative agency, but the claim was dismissed by the Superior Court.²² On appeal, the Supreme Judicial Court, however, reasoned that even though the force that caused the injury was an “act of god,” and was not related to Mr. Caswell’s employment, he was still entitled to benefits.²³ Therefore, in Caswell’s Case, the court clearly established that §26 of the Act should be viewed in broad terms, looking at the employment “in any of its aspects.”²⁴ Accordingly, Caswell’s Case is often cited in Massachusetts and in other states as the premier example of the line of cases that expanded the reach of workers’ compensation systems to the extent that injuries caused by either an occupational or neutral risk, such as an “act of god,” are routinely seen as compensable as long as the employee is in the course of his or her employment when injured.

2. Zerofski’s Case: Ordinary Wear and Tear Is Not Compensable

Zerofski’s Case25 involves the “wear and tear” doctrine and is one of the most cited workers’ compensation cases in Massachusetts. When Zerofski’s was decided, the concept of what defined a “personal injury” under the Act was still developing. Before Zerofski, a series of cases helped define what constituted a “personal injury” under the Act. In particular, the Court in Smith’s Case held that a “personal injury” need not arise only from an “accident,” but may arise from circumstances extending over a continuous period of time.²⁶ However, according to Pell v. New Bedford Gas, the compensable injury must be traceable to a “personal injury” peculiar to employment.²⁷ In Trombetta’s Case, the court held that a compensable injury “may develop gradually from the cumulative effect of stresses and aggravations.”²⁸

It was Zerofski’s Case, however, that further defined the concept of “personal injury” and, in doing so, developed the theory of the “wear and tear” doctrine. In an opinion by Chief Justice Hennessy, the court held that “to be compensable, harm must arise either from [a] specific incident or a series of incidents at work, or from [a] identifiable condition that is not common or necessary to all or a great number of occupations; injury need not be unique to the trade, and need not result from fault of employer but must be identified with the employment.”²⁹

Zerofski’s Case involved an injury to the leg of a warehouseman in 1964, while Commercial Union Assurance Company was on the risk.³⁰ Benefits were paid and the employee returned to the same employer. After prolonged standing and walking on the concrete floors of the warehouse for 10 years, he was laid off. He filed a claim for benefits under the Act, alleging that his leg injury now rendered him disabled.³¹ The employer had become self-insured effective in 1966.³² At the administrative level, the judge found the self-insurer responsible for benefits on the theory that the employee’s leg injuries had been aggravated by his employment from 1966 to 1976.³³

The case was appealed by the self-insurer and argued before Judge Lynch in the Superior Court.³⁴ Judge Lynch reversed the finding of the administrative judge and held that 10 years of prolonged walking and standing on warehouse floors did not constitute an aggravation of the 1964 injury.³⁵ Judge Lynch ordered that the insurer was responsible to pay benefits, rather than the self-insurer.³⁶ On appeal, the Court of Appeals affirmed, and on further review, the Supreme Judicial Court agreed, that Mr. Zerofski’s complaints against the self-insurer fell on the side of “wear and tear.”³⁷ Specifically, the Supreme Judicial Court stated that the “aggravation of the injury over the next ten years, however, did not amount to a personal injury within the meaning of the Act.”³⁸ The Court explained that “prolonged standing and walking are simply too common among necessary human activities to constitute identifiable conditions of employment.”³⁹ Therefore, the court held that the insurer, and not the self-insured employer, was liable for the disability benefits.⁴⁰

In retrospect, “we lost the battle but won the war.” In numerous subsequent workers’ compensation cases, insurers and self-insurers have denied and defended workers’ compensation claims using the often cited but difficult to prove “wear and tear” doctrine.⁴¹

3. In Re Fitzgibbons’ Case: Mental or Emotional Shock May Constitute a Compensable Employment-Related “Personal Injury”

Emotional injuries have generally been subject to a higher standard of proof in workers’ compensation systems. In some states, claimants suffering an emotional injury receive fewer benefits than those suffering a physical injury.⁴² The Fitzgibbons court held that the definition of “personal injury” should be broadly defined to include mental disorders resulting from mental trauma.43

In Fitzgibbons’ Case, the claimant was a supervisor in a corrections facility who suffered an acute anxiety attack after hearing that one of his officers was killed trying to break up an inmate disturbance.⁴⁴ Mr. Fitzgibbons had ordered the officer to intervene in the disturbance to attempt to bring it to an end.⁴⁵ After the incident, Mr. Fitzgibbons never worked again, became withdrawn, and felt personally responsible for the officer’s death.⁴⁶ A few weeks later, Mr. Fitzgibbons took his own life through a gunshot wound to his head.⁴⁷ Benefits were awarded at the administrative level.⁴⁸ On appeal, the Supreme Judicial Court affirmed the finding of the administrative agency and expanded the definition of personal injury to include “purely mental injuries caused by stressful and purely emotional events.”⁴⁹ The court stated that “there is no valid distinction which would preclude mental or emotional disorders caused by mental or emotional trauma from being compensable.”⁵⁰

This was the first case in which the court recognized that emotional trauma caused by emotional or stressful workplace events could be compensable. Previously, because of the difficulty inherent in proving such events, courts in Massachusetts and other jurisdictions were hesitant to expand the definition of personal injury to encompass mental injuries.

4. Scheffler’s Case: Establishing the Extent of Disability

The extent of disability is the most common issue in a workers’ compensation case. Scheffler’s Case,⁵¹ because it helped to establish the factors in determining disability, is one of the cases most cited by workers’ compensation practitioners in Massachusetts.

In Scheffler’s Case, the claimant was a sales representative from Sentry Insurance Company.⁵² Mr. Scheffler spent most of his time soliciting new business, which forced him to travel throughout eastern New Hampshire and Massachusetts.⁵³ He sustained an injury to his lower back in his employer’s parking lot.⁵⁴ The insurer filed to discontinue benefits.⁵⁵ The employee was examined by a state impartial physician pursuant to §11A of the Act.⁵⁶ The impartial physician found that the employee could be “gainfully employed” as an insurance salesman.⁵⁷ The only other evidence used by either party was the employee’s testimony.⁵⁸ Following a hearing, the judge awarded the employee a partial disability.⁵⁹ The insurer appealed because it was seeking a full discontinuance based on the opinion of the state’s impartial physician.⁶⁰

The Scheffler court defined the role of the impartial examiner⁶¹ as providing evidence only to the medical issues involved in the case and held that the impartial physician’s opinion on vocational issues were not entitled to any special deference.⁶² The court also confirmed that the function of the administrative judge is to consider the employee’s age, education, work history, physical limitations stemming from the injury, and the demanding requirements of the claimant’s job before rendering a decision on the extent of the injured workers disability.⁶³ The vocational language in the physician’s report, even if the physician is a state impartial physician, has no effect on the ability of the administrative judge to render a finding based on a variety of factors peculiar to the claimant.⁶⁴

The significance of this case is that it has become so ingrained in Massachusetts workers’ compensation terminology that a simple reference to Scheffler’s Case is usually sufficient to explain its underlying holding. The rule established in Scheffler’s Case is that an administrative judge must look at all the factors in an employee’s background — not just the medical reports associated with the case — before ruling on a disability. Accordingly, Scheffler’s Case has had a profound effect on the practice of workers’ compensation in Massachusetts.

5. Armstrong’s Case: Expansion of the Definition of Willful Misconduct by the Employer

In Massachusetts, injuries caused by the serious and willful misconduct of the employer will lead to a doubling of all compensation and medical expenses incurred in the case pursuant to §28 of the Act, with the employer responsible for paying the excess as a penalty. In some states, willful misconduct is an exception to the exclusive remedy rule, allowing for actions alleging negligence against the employer. In Massachusetts, these actions are not permitted. In addition, the standard of proof for a §28 claim to be successful against an employer remains high and amounts to “quasi-criminal” misconduct by the employer.

In Armstrong’s Case, the claimant was a carpenter working on Tower II of the Harbor Towers Project in Boston.⁶⁵ Debris had been falling from the upper floors of the tower due to a stripping operation.⁶⁶ Mr. Armstrong was sent to repair the bridge over the walkway, which protected visitors from the falling material.⁶⁷ Mr. Armstrong was struck on the head by a four-by-four inch timber, eight feet long, that shattered his hard hat and rendered him permanently and totally disabled.⁶⁸ That same day, carpenters installed safety netting on Tower II to prevent debris from falling on people working below.⁶⁹ The nets had been ordered weeks prior to the accident and were on site on the day of the accident.⁷⁰

The Appellate Court agreed with the administrative judge, who found that requiring Mr. Armstrong to work on “the bridge without safety nets being in place and without shutting down operations in Tower I and Tower II demonstrates such disregard for the probable consequences … as to constitute serious and willful misconduct.”⁷¹ Importantly, although Mr. Armstrong was not threatened or coerced into doing this work,⁷² the Appellate Court still found that the employer’s conduct constituted serious and willful misconduct.⁷³ The court specifically noted that the nets were on the site but not installed.⁷⁴

Prior to Armstrong’s Case, a violation of §28 was generally viewed as requiring an overt act of some type by the employer. In Armstrong’s Case, the Massachusetts Court of Appeals found that a failure to act may rise to the level of willful misconduct pursuant to §28.⁷⁵ While the Appellate Court did not expand the standard of proof necessary to establish a §28 violation, by holding that a failure to act may constitute willful misconduct, it expanded on the nature of employer conduct that may give rise to liability under §28.⁷⁶

6. Hunter v. Midwest Coast Transport: Defining the Amount of Recovery in Third-Party Cases

Third-party litigation may play a role in a workers’ compensation case. Some of the most significant recoveries obtained by claimants in Massachusetts were from third parties. Although the employer that purchased workers’ compensation coverage is immune from a lawsuit from tort damages resulting from an industrial injury, a tort action can be filed against any third party believed to be negligent in causing that injury.⁷⁷

Prior to Hunter v. Midwest Coast Transport,⁷⁸ if a workers’ compensation claimant successfully recovered in a third-party action, the workers’ compensation insurer would recover in full whatever benefits it paid. If there was any excess, it would continue to offset in full any future weekly compensation or medical expenses due as well.⁷⁹ In Hunter, the court put an end to this practice and held that Massachusetts law requires workers’ compensation insurers to pay their share of attorney fees and costs attributed to the recovery.⁸⁰ This holding generally reduces the insurer’s lien by one-third.⁸¹ Once the lien is recovered, and if there is any excess, the insurer must continue to attribute the same percentage share of attorney fees to each weekly compensation check or medical bill until the excess is recovered, at which time weekly benefits would then resume in full.⁸²

In Hunter, the plaintiff became a quadriplegic as a result of a truck accident that occurred during the course of his employment.⁸³ A judgment of $3 million was recovered against various third-party defendants.⁸⁴ The workers’ compensation insurer sought to recover its lien in full and stop all future weekly compensation and medical payments until the remainder of the $3 million recovery was offset.⁸⁵ Because of the amount of the recovery in the third-party case, this would in effect end the insurer’s liability to pay any future benefits. The plaintiff filed this action seeking relief and interpretation of §15 of the Act.⁸⁶

In finding that the insurer must pay its proportionate share of the attorney fees and expenses incurred in pursuing the third-party case and reduce its lien accordingly, the court effectively ended the common practice of recovering the lien in full. The Hunter decision also assisted the settlement of future cases, since the lien was now worth less than the full amount and benefits would continue to be paid (although at a much reduced amount), even in cases of a significant third-party recovery. Finally, Hunter added countless headaches to practitioners who now have to figure out the proper “Hunter offset” in trying to settle third-party cases and pay back the workers’ compensation insurer.⁸⁷

7. Souza’s Case: Expanding the Rights of Compensation Coverage on a Business Trip

In workers’ compensation litigation, some of the most challenging issues involve the extent of compensation coverage afforded to employees who are either traveling off the employer’s premises or are engaged in acts not in the actual performance of their specific job at the moment of injury. Although Souza’s Case did not establish direct precedent or effectuate an amendment to the Act, it has an inherent precedent-setting value in the area of traveling employees.⁸⁸

In Souza’s Case, Mr. Souza lost his life in a fire while sleeping in a rooming house in New Bedford, Massachusetts, where he was spending the night.⁸⁹ The employer’s corporate office was in Gloucester, Massachusetts, but his employment required him to travel up and down the coast and to be occasionally away from home.⁹⁰ Mr. Souza “was required to work ‘whenever he was called upon’ and was ‘expected to expend as much time as the work at hand required.’”⁹¹ Mr. Souza was free to choose his place of lodging, was paid a salary, and the employer paid his expenses for room and board and transportation.⁹² There was evidence that the lodging house was close to the location where Mr. Souza was to work in New Bedford.⁹³

The Supreme Judicial Court found that Mr. Souza’s death was compensable and stated that the question was not whether the risk was greater than a similar risk at some other place or at his own home, but “whether his employment brought him in contact with the risk that in fact caused his death.”⁹⁴ The court reiterated an established principle that the employee, “in order to be entitled to compensation, need not necessarily be engaged in the actual performance of work at the moment of injury. It is enough if he is upon his employer’s premises occupying himself consistently with his contract of hire in some manner pertaining to or incidental to his employment.”⁹⁵ The Souza court, however, expanded this principle to include employees acting consistently within their employment, even when injured off the employee’s premises (such as in the case of traveling employees), or employees injured performing activities not directly associated with their specific job.⁹⁶

The holding in Souza is an expansion of the principle established in Caswell’s Case that states that “an injury arises out of the employment if it arises out of the nature, conditions, obligations or incidents of the employment; in other words out of the employment looked at in any of its aspects.”⁹⁷ The Souza decision also influenced a long line of exceptions to the “going and coming rule,” which excludes liability for injuries occurring while an employee is going to or coming from work,⁹⁸ in addition to expanding the coverage for employees injured on business trips, errands, or similar activities on behalf of the employer.

8. Kelly’s Case: Emotional Injuries From a Bona Fide Personnel Action Held Compensable

Emotional injury cases have historically had a difficult time in workers’ compensation systems. Even today, the possibility of a “psych claim” in a workers’ compensation case causes an insurer “to dig in its heels” and vigorously defend itself against such a claim. As a result of these views, few cases in the 100-year history of the Massachusetts Workers’ compensation Act created more of a furor in the legal system than did Kelly’s Case.⁹⁹

In Kelly’s Case, the claimant was a 22-year employee of Raytheon who supervised the company’s training center.¹⁰⁰ On a Friday, Ms. Kelly was told she was being laid off, began to cry, and remained upset over the entire weekend.¹⁰¹ On Monday, she returned to work and was told she could accept a transfer to the cable department as a foreperson.¹⁰² She did not want to work in that department, became depressed, and was out of work for six weeks.¹⁰³ She returned to work for one day, left work, and then sought psychiatric treatment for depression.¹⁰⁴ She was later found by her physician to be totally disabled due to her depression, which her physician felt was a result of being laid off and her subsequent transfer to a new department.¹⁰⁵

The claim was denied by the Industrial Accident Board, but reversed on appeal by Superior Court Judge Paquet.¹⁰⁶ The Appeals Court affirmed, and leave was granted for further appellate review.¹⁰⁷ The Supreme Judicial Court affirmed the decision of the appellate court, holding that an employee who had an emotional breakdown from being laid off and transferred to another department suffered a compensable personal injury under the Act.¹⁰⁸ The court, citing Fitzgibbon’s Case, stated that emotional disabilities, if caused by employment, were compensable injuries under the Act.¹⁰⁹ The court also cited Caswell and Zerofski and stated that “a disability arises out of and in the course of employment … looked at in any of its aspects.”¹¹⁰ The court felt that the layoff that caused Kelly’s disability was an incident of employment, making the claim compensable.¹¹¹

Kelly’s Case created a “wildfire effect” throughout the Massachusetts business community. Employers could only imagine the number of workers’ compensation claims that would be filed every time an employee was laid off or transferred and then became depressed or upset as a result.

Although the expected avalanche of claims never actually occurred, employers’ concerns about Kelly’s Case led to a significant amendment to the Act.¹¹² As a result of Kelly’s Case, the definition of personal injury was amended to state that “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 ….”¹¹³

Two principles cited by the court in Kelly’s Case influenced the legislature to limit the protections afforded by the Kelly court. The first principle cited by the court was that the events causing an emotional disability need not be “unusual, traumatic, or objectively stressful” to be compensable.¹¹⁴ The court noted that mental or emotional disability is compensable “only where the predominant contributing cause of such disability is an event or series of events occurring within any employment.”¹¹⁵ The second principle emphasized by the court was that an employee is taken “as is” with “whatever peculiar vulnerabilities to injury the employee may have ….”¹¹⁶

These principles, therefore, led to a further narrowing of the definition of personal injury found in §1(7A) because employees with a preexisting condition must now establish a higher level of causation and must show that “if a compensable injury or disease combines with a pre-existing condition ... the resultant condition shall be compensable only to the extent such compensable injury or disease remains a major but not necessarily predominant cause of disability or need for treatment.”¹¹⁷

The language in §1(7A) also applies to employees with a preexisting emotional condition, further raising the level of causation necessary to establish a continuing compensable emotional injury once the initial injury is found to be work-related.

Because the legislature subsequently amended the Act, the holding of Kelly’s Case has been negated. Therefore, the importance of Kelly’s Case is the significant legislative change it effectuated and its narrowing effect on cases involving an alleged emotional disability from stressful or emotional incidents occurring in the workplace.¹¹⁸

9. In Re Baggie’s Case: An Attempt to Expand Loss of Function Benefits in Death Cases

In addition to weekly benefits, §36 benefits are paid for permanent loss of function and disfigurement.¹¹⁹ Pursuant to this statute, each arm, leg, finger, etc., is given a value and any award is based on the percentage of loss.¹²⁰

In In Re Baggie’s Case, the employee died as a result of his injuries, and §36 benefits were sought for the total value of each loss of bodily function and extremity added together.¹²¹ The claimant’s novel argument was that Mr. Baggie suffered a severe injury, lived for a few minutes, and, as a result, suffered a total loss of function of each extremity, body function, and sense, entitling the heirs to the totality of §36 benefits available under the Act, approximately $76,000.¹²² The Court agreed, holding that the decision to award §36 benefits for loss of function “did not turn on such arbitrary matters as the time lapse between injury and death ….”¹²³

In subsequent claims, this decision led to rather gruesome testimony from co-employees, relatives, and physicians trying to establish that an employee fatally injured in a work-related accident lived for a few seconds prior to the employee’s death in an attempt to establish their entitlement to the total loss of all bodily functions under §36 and allowed by the Baggie decision. The Baggie decision was viewed unfavorably by both employers and insurers, leading to an amendment of §36A that limited the award in death cases or brain damage cases pursuant to §36 (and §36A) to an amount not to exceed an amount equal to the average weekly wage in Massachusetts at the date of injury multiplied by 105.¹²⁴ Additionally, the Amendment mandated that “in no event shall payments be made under this section to any employee where the death of such employee occurs within 45 days of the injury.”¹²⁵ Therefore, while the precedent established in Baggie was short-lived, it was significant in that it constitutes one of the few cases that have effectuated a direct change in the Act by legislative amendment.

10. Ferriter v. Daniel O’Connell’s Sons, Inc.: Allowing an Action Against Employer for Loss of Consortium and Society by an Injured Employee’s Spouse and Children

Historically, the premier benefit to employers that were mandated to purchase workers’ compensation policies and pay premiums has been the “exclusive remedy rule.” In other words, if the employer has a valid workers’ compensation policy, the employer (and co-employees) are immune from tort liability by an employee injured in the course and scope of his or her employment. This rule was shaken to its core in Ferriter v. Daniel O’Connell’s Sons, Inc., which led to an amendment to the Act following an uproar of disbelief in the business and legal communities.¹²⁶

In Ferriter, a carpenter became paralyzed from the neck down in a work injury when a load of wood fell from a crane, striking him in the neck.¹²⁷ The supervisor and all employees involved in the incident worked for O’Connell.¹²⁸ Compensation benefits in the amount of $211.37 per week were paid to Mr. Ferriter and his family.¹²⁹

Subsequently, a complaint was filed by Ferriter’s wife and two minor children (ages three and five) in the amount of $3 million for loss of consortium and society.¹³⁰ Following a motion for summary judgment, the Supreme Judicial Court granted the plaintiff’s application for direct appellate review.¹³¹ The court acknowledged the right of the spouse to file a claim for loss of consortium and society, and in a matter of first impression, held that a child could recover for loss of a parent’s companionship and society caused by a defendant’s negligence.¹³²

Secondly, and of equal importance, the court held that neither the wife’s nor the children’s claims were barred by the Act.¹³³ The court, citing §24 of the Act and King v. Viscoloid Co. (“the King Rule”), did not question that the employee’s workers’ compensation remedy for his injuries was exclusive, but held that §24 must be viewed narrowly and did not constitute a bar for any other individual allowed by law to file an action (which, in this case, included Mr. Ferriter’s wife and children).134 The court reached this conclusion by narrowly interpreting both the language in §24, which referred only to the employee, and the legislative history of the Act in its entirety.¹³⁵

In light of Ferriter’s interpretative expansion of §24 and due to the reaction of businesses and insurers to what they viewed as potentially devastating tort awards for injured workers’ spouses and children, the legislature amended §24 of the Act and ended a short run of “Ferriter actions.” The section was amended to exclude suits brought by a “spouse, children, parents, and any other member of the employee’s family or next of kin who is wholly or partially dependent upon the earnings of such employee at the time of injury or death ….”¹³⁶ In addition, fearing the language was not limiting enough, the legislature further amended §24 by adding that those individuals “shall be held to have waived any right [emphasis added] created by statute, at common law or under the law of any other jurisdiction ….”¹³⁷

The expansive limiting nature of this amendment shows the effect that Ferriter had on the business and political community. The significant effect of Ferriter was not the holding itself, which was entirely appropriate under case law and the statute (which originally excluded only “the employee”), but in the reaction of the legislature to protect and preserve the workers’ compensation system and the immunity provided by the “exclusive remedy rule” it originally offered (later mandated) to employers to participate in the workers’ compensation system.¹³⁸

Conclusion

In the course of 100 years, there have been hundreds, if not thousands, of well-written decisions that have had an effect on individual claimants or the workers’ compensation system as a whole. Therefore, there are other cases that arguably deserve to be on this list.¹³⁹ The cases outlined above, however, because of their profound effect in setting precedent or developing the Act as it exists today, clearly deserve their status as some of the premier Massachusetts workers’ compensation cases over the last 100 years. It is truly amazing that new and interesting fact patterns continue to emerge, requiring a continuing legal analysis of the Massachusetts Workers’ Compensation Act, which will soon celebrate its 100th year of existence.

Endnotes

1. In particular, the New Deal and Great Society legislation promulgated by Presidents Franklin D. Roosevelt and Lyndon B. Johnson, respectively.

2. 193 Mass. 76 (1906).

3. See id.

4. See id. at 76-77.

5. See id. at 77.

6. 194 Mass. 412 (1907).

7. See id. at 413.

8. See id.

9. See id. at 414.

10. See id. (citing Rooney v. Seawall and Day Cordage Co., 161 Mass. 159 [1894]).

11. Although Maryland created a narrow cooperative accident fund for miners and a few other hazardous professions in 1902 (MD Laws 1902, Ch. 139), the fund quietly expired when held unconstitutional in an unappealed lower court decision. (Larson, Lex K., Larson’s Workers’’ Compensation Law, 4^th ed., (Matthew Bender, 2008): 24, citing Franklin v. United Rys. & Elec. Co. of Baltimore, 2 Baltimore City Rep. 309 [1904].) Massachusetts was the second state, after New York, to enact a workers’ compensation act. (Id. at 24.) However, New York’s narrow statute, covering certain “hazardous employments,” was later found unconstitutional in 1911 by the New York Court of Appeals because it imposed liability without fault upon the employer, which the court considered to be a taking of property without due process of law under both the state and federal constitutions. (Id. citing Ives v. South Buffalo RY., 201 N.Y. 271 [1911]). The subsequent unconstitutionality of these acts means that the Massachusetts Workers’ Compensation Act, enacted on July 11, 1911, covering all employments and avoiding constitutional arguments by “the opt out provision” found in §26 of the Act, became one of the first effective compensation statutes in the nation. (See id. at 24.) Massachusetts was also one of the first states to investigate the need for a workers’ compensation statute by creating a state commission in 1904, followed by Illinois in 1907, Connecticut in 1908, and New York in 1909. (Id. at 23.) Other states implementing compensation statutes in 1911 were New Jersey (July 4, 1911), Wisconsin (May 3, 1911), Nevada (July 1, 1911), California (September 1, 1911), and Washington (October 1, 1911). By 1920, all but eight states had enacted compensation statutes. In 1963, Hawaii became the last state to do so. (See Larson, Vol. 1, Sec. 2.08, pg. 2–15). Because Massachusetts was one of the first states to create an effective workers’ compensation act, it is important to examine the cases decided over the years by the Massachusetts judicial system that further developed the Act.

12. M.G.L. Ch. 152.

13. Now known as the Department of Industrial Accidents.

14. While the order of the cases in this list might be subject to debate, there is no denying the importance and influence of each of these cases.

15. These cases include: Caswell’s Case, Zerofski’s Case, In Re Fitzgibbons’ Case, Shefflar’s Case, Armstrong’s Case, and Souza’s Case.

16. These cases include: Kelly’s Case, In Re Baggie, Hunter v. Midwest Coast Transport, and Ferriter’s Case.

17. 305 Mass. 500 (1940).

18. M.G.L. c. 152, § 26, as amended by St. 1937, c. 370. See also Caswell’s Case, 300 Mass. at 500.

19. See id. at 502.

20. See id. at 501 (stating that the newsworthy storm was first classified as a hurricane).

21. See id.

22. See id. at 500 (explaining that the Superior Court denied the claim on the ground that the personal injury received by the employee was not one “arising out of … his employment).

23. See id. at 502.

24. See id. (holding that although prior decisions deny compensation in similar circumstances unless special exposure to danger is shown, these cases are no longer good precedent under the principles established in this case).

25. 385 Mass. 590 (1982).

26. See 307 Mass. 516 (1941).

27. See 325 Mass. 239 (1950).

28. See 1 Mass. App. Ct. 102 (1973) (holding that the injury sustained by the claimant, a mason, who was involved in heavy physical work which gradually led to a ruptured disc in his back was compensable despite the fact that he could not identify a particular disabling incident).

29. Zerofski’s Case, 385 Mass. at 590 (citing M.G.L.A. Ch. 152, § 1[7A], 26).

30. See id. at 591.

31. See id.

32. See id.

33. See id.

34. See id. This writer argued that case before Judge Lynch in the Superior Court. At that time, workers’ compensation cases were first appealed to the Superior Court. Following the amendments to the Act in 1991, cases are now appealed directly to the Massachusetts Court of Appeals or the Supreme Judicial Court.

35. See id. at 590.

36. See id.

37. See id. at 595.

38. See id.

39. See id. at 596.

40. See id.

41. Subsequently, §1(7A) was amended to raise the level of causation necessary in cases involving preexisting nonwork-related injuries.

42. See Breen v. Carlsbad Municipal Sch., 133 N.M. 618 (2003) (upholding a different level of benefits for those suffering from a physical injury than those suffering an emotional injury and stating that any difference in the amount of compensation available for those injuries does not constitute a violation of the Americans With Disabilities Act).

43. See In Re Fitzgibbons’ Case, 374 Mass. 633, 637 (1978).

44. See id. at 633.

45. See id.

46. See id. at 635.

47. See id.

48. See id.

49. See id. at 637.

50. See id. at 638.

51. Scheffler’s Case, 419 Mass. 251 (1994).

52. See id.

53. See id.

54. See id.

55. See id.

56. See id.

57. See id.

58. See id.

59. See id.

60. See id.

61. The requirement of an impartial examiner following a conference pursuant to §11A was enacted in 1991. See St.1991, c. 398, §30.

62. See Scheffler’s Case, 419 Mass. at 254.

63. See id.

64. See id. The report of the impartial physician has prima facie effect pursuant to §11A(2).

65. See 19 Mass. App. Ct. 147, 149 (1984).

66. See id.

67. See id.

68. See id.

69. See id.

70. See id.

71. See id.

72. A threat or coercion by the employer was formerly a significant requirement to find that serious and willful misconduct existed. See O’Leary’s Case, 367 Mass. 108 (1975).

73. See Armstrong’s Case, 19 Mass. App. Ct. at 149.

74. See id.

75. See id.

76. A few years ago, during a lecture on §28, a woman in the audience told this writer that she was the claims representative for the insurer in Armstrong’s Case and that the insurer continued to pay double compensation to the employee. Because the employer could not make payment, the insurer is responsible for paying the entire award under §28.

77. See M.G.L. Ch. 152, §15.

78. 400 Mass. 779 (1987).

79. See M.G.L. Ch. 152, at §15. The insurer has an automatic lien on any benefits paid. See id. at §15.

80. See 400 Mass. at 785.

81. One-third is generally the standard contingent fee.

82. See Hunter, 400 Mass. at 785.

83. See id. at 781.

84. See id.

85. See id. The lien was $230,368.82. See id. at 781–82.

86. See id. at 779.

87. The Massachusetts DIA has added a §15 segment to its Web site, which has made it easier to get the correct calculation. See http://www.mass.gov/?pageID=elwdagencylanding&L=4&L0=Home&L1=Government&L2=Departments+and+Divisions+(EOLWD)&L3=Department+of+Industrial+Accidents&sid=Elwd.

88. 316 Mass. 332 (1944).

89. See id.

90. See id.

91. See id.

92. See id.

93. See id.

94. See id. at 331.

95. See id. at 334.

96. See id. (listing activities such as: attending to a call of nature, getting fresh air, eating meals, going upstairs, traveling in a vehicle furnished by the employer, etc.).

97. 305 Mass. at 502.

98. See, e.g., Case of Haslam’s, 451 Mass. 101 (2008) (reversing an Industrial Accident Reviewing Board decision and concluding that claimant's injuries, incurred in a one-car accident while driving home from working for 27 hours without sleep, were not compensable).

99. Ferriter v. O’Connell, 381 Mass. 507 (1980), the next case discussed in this article, is a close second.

100. 394 Mass. 684, 685 (1985).

101. See id.

102. See id.

103. See id.

104. See id.

105. See id. at 685-86.

106. See id. at 684.

107. See id.

108. See id. at 689.

109. See id. at 686.

110. See id.

111. See id. at 687.

112. See M.G.L. c. 152, §1(7A).

113. See id. at §1(7A).

114. See Kelly’s Case, 394 Mass. at 687.

115. See id. at §1(7A).

116. See id.

117. See id. at §1(7A).

118. Emotional disabilities remain a controversial subject in modern society, as illustrated by the recent decision of the Department of Veterans Affairs to continue its policy not to award purple hearts to soldiers suffering from posttraumatic stress disorder as a result of combat. See Alvarez, Lizette, and Erik Eckholm, “Pentagon: No Purple Hearts for PTSD,” The New York Times (Jan. 8, 2009).

119. M.G.L. c. 152, §36.

120. See id.

121. 369 Mass. 129 (1975). In cases involving death, § 36 benefits are paid pursuant to M.G.L. Ch. 152, §36A.

122. See id.

123. See id.

124. See St.1981, c. 572, §4; St.1985, c. 572, §47; St. 1991, c. 398, §70.

125. M.G.L. Ch. 152, §36A.

126. See 381 Mass. 507 (1980); M.G.L. c. 152, §24.

127. See id. at 508.

128. See id.

129. See id.

130. See id.

131. See id.

132. See id. at 509 (citing Diaz v. Eli Lily and Co., 364 Mass. 153 [1973], allowing a loss of consortium and society claim for a spouse in a tort claim).

133. See id. at 524.

134. See id. The King Rule confirmed that the employee’s remedy was exclusive under the Act. See King v. Viscoloid Co., 219 Mass. 420 (1914).

135. See Ferriter, 381 Mass. at 524 fn. 20 (citing the legislative history found in the Governor’s Commission on Compensation for Industrial Accidents [1911]).

136. M.G.L. Ch. 152, §24.

137. See id. at §24.

138. King (1914) pointed out that the employee’s remedy was exclusive, and in Diaz (1973), spouses were granted a right to file a suit for loss of consortium. (See King v. Viscoloid Co., 219 Mass. 420 [1914]; Diaz v. Eli Lily and Co., 364 Mass. 153 [1973].) It was not until Ferriter, however, that a loss of consortium claim by any family member was argued to be applicable in a workers’ compensation scenario. Therefore, it took a sharp reading of the statute and some excellent legal work by plaintiff’s counsel eight years after Diaz was decided to interpret §24 in such a way that would enable a loss of consortium and society suit to be successful following a workers’ compensation injury.

In 1980, the Ferriter Court also expanded a claimant’s right to file actions against the employer established in Foley v. Polaroid Corp., 381 Mass. 545 (1980). In that case, the court held that defamation, “being an injury to reputation,” and alleged violations of an employee’s civil rights were not personal injuries contemplated by the Workers’ Compensation Act, and, as a result, were not claims barred by the “remedy rule.” (See id.)

139. For example, there are numerous Review Board decisions not included on this list that have helped to interpret or effectuate changes in the Act. One notable decision, McTavish v. O’Connor Lumber Co., clearly outlined the requirements necessary to determine whether a claimant is an independent contractor or “an employee” under the Act. (See 1992 WL 253660 at *1 [1992].) This article is dedicated to those practitioners of workers’ compensation, employees of the Department of Industrial Accidents, and administrative law judges who have, throughout the years, diligently and zealously “toiled in the trenches” on behalf of employees, employers, and insurers to make the Massachusetts system one of the premier workers’ compensation systems in the nation.

Vincent M. Tentindo is the Managing Partner of Tentindo, Kendall, Canniff, & Keefe LLP, the largest workers’ compensation defense firm in New England. He is also a Lecturer of Law at New England Law Boston and teaches the workers’ compensation course. He is also on the Judicial Nominating Committee for the Massachusetts Department of Industrial Accidents. Additionally, he has authored an article titled “Implications of Immigration Reform on the Workers’ Compensation System,” published in the Fall 2006 issue of The Journal of Workers’ Compensation. He has also authored articles appearing in Banker and Tradesman and professional sports agent publications.

Michael J. Tentindo is a J.D. Candidate 2009 at the Washington College of Law, American University. He is an editor on the Journal of Gender, Social Policy, & the Law, and has authored an article, “Private School Tuition at the Public’s Expense: A Disabled Student’s Right to a Free Appropriate Public Education,” to be published in Volume 17 of the Journal of Gender, Social Policy, & the Law.