In Massachusetts, an employee may receive workers’ compensation benefits for a pre-existing condition such as post-traumatic stress disorder (“PTSD”) if his or her employer causally exacerbated the employee’s condition. In Gail Wicklow v. Fresenius Medical Care Holdings, Inc., Board No. 035561-09, a registered nurse who previously suffered from PTSD was employed by a medical company that provided dialysis services to patients. About two years after the nurse was hired, a series of events that were not work-related apparently triggered her PTSD. As a result, she was institutionalized on three separate occasions over a period of about three years. Following each PTSD episode, the nurse returned to work full-time.
In May 2009, the nurse was suspended by her employer for three days. Instead of returning to work, the registered nurse sought § 34 workers’ compensation benefits from her employer as a result of numerous emotional injuries she allegedly suffered at work. According to the nurse, work-related events that occurred between 2006 and 2009 exacerbated her PTSD. Her employer countered that the woman was not eligible for § 34 disability benefits because her PTSD was a pre-existing condition under § 1(7A).
Prior to a workers’ compensation hearing, the nurse was examined by an impartial physician pursuant to the provisions set forth in § 11A. The doctor stated the work-related events were the predominant cause of the nurse’s disability. Following a hearing, an administrative law judge (“ALJ”) adopted the neutral doctor’s opinion and dismissed the employer’s asserted § 1(7A) defense. The ALJ also determined that the nurse was stable following her 2005 psychiatric treatment, and the 10 workplace situations that triggered her recent PTSD episodes were not bona fide personnel actions. In addition, the ALJ found that seven of the incidents were not personnel actions at all, and a situation related to bereavement leave constituted intentional infliction of emotional distress. Because of this, the ALJ awarded the nurse § 34 disability and medical benefits beginning on the date of her suspension.
Next, the employer’s insurer appealed the ALJ’s decision to the Department of Industrial Accidents Reviewing Board. On appeal, the insurer argued that the nurse was not eligible to receive § 34 disability benefits because the workplace actions at issue were non-compensable bona fide personnel actions under both § 1(7A) and § 29. The company also disagreed with the ALJ’s assertion that the employer’s conduct rose to the level of intentional infliction of emotional distress under Massachusetts law.
According to the Board, the ALJ relied on its 2011 decision in Upton, which was later overturned by the Massachusetts Appeals Court. In that case, the appellate court found that the Board interpreted what constitutes a personnel action under § 1(7A) too narrowly when it limited such conduct to a “status altering action.” The Board next stated the ALJ may have committed error when she found that seven of the 10 incidents at issue were not personnel actions. Despite this, the Board stated such error was unimportant because the ALJ found that the events were not performed in good faith, even if they had been personnel actions.
After that, the board dismissed the insurer’s claim that all personnel actions in Massachusetts are bona fide in the absence of intentional infliction of emotional distress. The Board stated the insurer misconstrued the statutes. According to the Board, a personnel action is bona fide only when it is performed in good faith.
The Board examined the evidence provided before, finding that the ALJ correctly ruled the employer’s acts were not bona fide with regard to the seven incidents she failed to label as personnel actions. Next, the Board analyzed the three remaining personnel actions before holding that none were bona fide because they were based on information the nurse’s supervisor knew to be false and one incident included an act of retaliation. Since the ALJ’s decision was supported by the weight of the evidence, the Board affirmed her ruling awarding the nurse § 34 disability and medical benefits.
If you suffered a disabling injury at a Massachusetts workplace, you may be eligible to receive workers’ compensation benefits. To discuss your rights with an experienced Massachusetts workers’ compensation lawyer, contact the veteran workers’ compensation attorneys at Kantrovitz & Associates, P.C. through our website or give us a call today at 800-367-0871.
Gail Wicklow v. Fresenius Medical Care Holdings, Inc., Department of Industrial Accidents Reviewing Board No. 035561-09 (April 9, 2014)