The employee, an ironworker, was using a chain hoist to raise steel to his foreman who was positioned on the top floor of a three-story atrium with a clear view of the on-going work in the area where the employee was positioned. A carpenter working behind the employee on the next floor leaned against a beam which fell over the edge and struck the ironworker on his shoulders, neck, and head causing a concussion and soft tissue injuries to his shoulder and neck. This accident occurred on November 8, 1995.
The workers’ compensation insurer paid benefits to the employee, but contested the extent of his disability at various times after he was injured. The employee, after receipt of temporary total disability benefits, was awarded Permanent and Total Disability benefits. He also successfully pursued a claim for Social Security Disability benefits that were paid under an offset attributable to his receipt of weekly workers’ compensation benefits.
An action against the general contractor and a number of subcontractors involved in this renovation project was filed by a prior attorney ; it was settled for nearly $ 1,000,000.00 in February 2000. Under the terms of this settlement, the workers’ compensation carrier received full payment of the lien which it held under G.L. C. 152, §15, and asserted its rights to reduce future compensation benefits under the Hunter offset. This reduced the injured workers’ weekly compensation check to $ 283.16, including COLA.
The injured employee retained his current attorney in November 2003, as he felt that he was not being paid properly. New counsel immediately contacted the Social Security Administration with a request that it apply the so-called PONS regulations, and pay the insured worker the amount of Social Security Disability benefits that were offset prior to the time when the third party case was settled. These regulations provide, inter alia, that when a workers’ compensation lien is repaid, the Administration is required to pay the injured worker the amount of SSD which it offset, the rationale being that the repayment, in effect, means that the injured worker received no weekly workers’ compensation and therefore no offset was applicable. This resulted in a retroactive SSD payment of $ 60,364.00 to the injured worker. Counsel also obtained an increase of monthly SSD to its maximum as the application of the Hunter eliminated the workers’ compensation offset.
The next step in this long process was the filing of a workers’ compensation claim for a doubling of all benefits under Section 28 on the theory that the employer’s foreman, who was in a position to observe the dangerous work environment created by subcontractors working directly above the injured worker, violated a number of industry standards and OSHA regulations which constituted a wanton disregard for the safety of the injured worker. This was substantiated by an OSHA investigation. The case also illustrates why one should defer a Section 28 claim was until the resolution of any third party action as the allegation of simple negligence in that action would be jeopardized by the allegation of employer gross negligence in the Section 28 claim.
The injured workers’ new counsel was able to locate all persons who were on site when this accident which occurred. The Section 28 case was tried at the Department of Industrial Accidents. It was settled after the first full day of hearing, and prior to the calling of expert witnesses. The settlement provided a $ 500,000.00 lump sum and a waiver of nearly $ 80,00.00 in future Hunter offset rights held by the insurer. The injured worker is now 64 years old and receives an ironworker pension as well as his full SSD benefits.
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