MassCOP Wins Significant 111f Injury Recurrence Arbitration
On January 14, 2015, arbitrator Richard Boulanger issued an important injury leave award in favor of the Massachusetts Coalition of Police and its affiliate, the Ipswich Police Association, Local 310. The arbitrator granted Ipswich Police Officer Aaron Woodworth injury leave for a three month period in 2014 when Officer Woodworth was out of work recovering from ankle surgery which was a recurrence of his original injury in 2009 (Read the full decision of Arbitrator Boulanger HERE). MassCOP’s case was presented and argued by Sandulli Grace Attorney Ken Grace.
Inevitably, at some point in a Massachusetts police officer’s career, the officer will suffer an injury on the job. In most cases, recovery from that injury will be full and the officer will return to duty without any apparent difficulty. Some injuries will be so significant that the officer will eventually have to retire on an accidental disability pension. Many injuries, including those which result in full recovery, will create a weakness in the officer’s body that will cause problems down the road. It is this last category of “recurrence” disability that Officer Woodworth found himself when the Town of Ipswich denied him injury leave coverage under M.G.L. c. 41. §111F.
Worker’s Compensation Comparison
In the Commonwealth of Massachusetts, almost all employees except police officers and firefighters are covered by the state workers’ compensation law. M.G.L. c.41, §111F fills a gap in the workers’ compensation system by providing benefits to injured or disabled police officers and firefighters who have been excluded from coverage under the workers’ compensation act, M.G.L. c. 152, §69. Because these two statutes fulfill the same legislative objective of protecting injured workers, the standard for whether a police officer receives injury leave is the same as the standard for other injured employees under workers’ compensation. Both the Supreme Judicial Court and the Appeals Court have used analogous workers’ compensation cases to decide matters under Section 111F.
What Makes Something a Recurrence
A recurrence is when an employee is injured, hurt, in pain, etc. where the most recent disability is a direct result of the previous injury and there have been no intervening factors that would have created the second injury. As one arbitrator has stated, the term recurrence, “implies that an officer had recovered and then suffered another occurrence of the problem.” In such cases, the employer or insurer cannot obtain immunity from injury leave by characterizing as a “new injury” what is essentially a manifestation or consequence of an earlier compensable injury. The state Department of Industrial Accidents has stated the recurrence principle as follows:
The law is well established that the deleterious effects of work subsequent to an industrial injury do not amount to a new industrial injury where the incapacity suffered is “simply the natural physiological progression of a condition following the initial incident.”
Moreover, a recurrence will be covered by workers’ compensation even if an aggravation that causes the recurrence is not work-related. The subsequent injury is compensable as long as the non-work activity was normal, reasonable and not performed negligently. Under basic torts law principles, something is a recurrence if the earlier condition continues to be the natural and proximate cause of the industrial injury.
Lastly, there is no definitive cutoff for when an injury will no longer be viewed as a recurrence, and a return to work will not negatively impact an employee’s claim. In a Section 111F case involving a recurring injury for a police officer, the Supreme Judicial Court put it this way:
“From a sheer policy perspective, the statutory benefits should extend to service-related incapacities which appear subsequent to the date of the original injury, even where, as here, the officer returns to duty thinking that he is fully recovered.”
Jones v. Town of Wayland, 374 Mass. 249, 258 (1978).
Proving a Recurrence
As in any injury leave dispute, medical documentation and testimony of the injured officer are critical to winning a recurrence case. Neither speculation, surmise, conjecture nor coincidence will establish causation. Rather, it is necessary to define the relationship between the first compensable injury and the second injury for which the officer seeks benefits.
In Ipswich, the arbitrator found that it was “clear from the evidence” (which included the treating doctor’s medical records and the officer’s direct testimony) that the grievant was disabled in 2014 because of his 2009 on-the-job injury for which surgery was required in 2014. In ruling for MassCOP, the arbitrator rejected the Town’s argument that Officer Woodworth had to present evidence of a new injury following his full recovery and return to full duty in 2010. By making such an argument, the Town totally ignored the fundamental workers’ compensation principle involving recurrence injuries. An employee need not show a subsequent specific incident at work to receive Section 111F leave if the later cause of the disability is the original injury.
The arbitrator also rejected the Town’s argument that Officer Woodworth’s disability in 2014 was a “wear and tear” injury and therefore not compensable. Elsewhere, some town insurance companies have tried this approach where there are time limitations on their insurance coverage for on-the-job injuries. This can mean that towns may be without insurance for a recurrence claim depending upon the insurance policy limits. Nevertheless, regardless of such policy coverage, the municipality still remains liable, even if it ends up paying the full bill.
Over the past 35 years in proudly representing the Massachusetts Coalition of Police and public safety employees in general, our firm has often fought for their injury leave protection. Recurrence injury cases have come up from time to time and are usually resolved without litigation. That didn’t happen in Ipswich and while it was difficult for the individual officer involved in the case, MassCOP used this situation as an opportunity to clearly establish the case law behind the concept of recurrences. The arbitrator, after being fully briefed by the Union, did a thorough job in setting out the recurrence standard and fitting in the officer’s fact pattern to grant him the justified injury leave and coverage. While arbitration awards have various precedential values depending upon the facts of a particular case, there is no doubt that an officer is entitled to injury leave when a disability simply reoccurs from a previous on-the-job injury.