Successive Insurance Rule Appropriate; Massachusetts Department of Industrial Accidents Reviewing Board Upholds Insurance Coverage for Employee’s Repetitive Injury to Right Shoulder

In a recent decision, the Massachusetts Department of Industrial Accidents, Reviewing Board, affirmed a decision in favor of an injured employee who suffered an ongoing aggravation of an underlying shoulder condition. The issue in this case was whether the judge had transformed the employee’s injury claim into one of a repetitive, ongoing stethoscopeaggravation of a condition, when it should have remained an allegation of a single work injury. Additionally, the insurer claimed the successive insurer rule applied, and they were not liable.

The employee in this case was a 54-year-old man who worked for G.P.C. International/Chartpak, Inc. since 1996 as a paper processor and machine operator. The work was fast-paced and required heavy lifting of 75 to over 100 pounds.

In about 2003, after experiencing pain in his right arm, the employee sought treatment and received physical therapy.  His health insurance covered these costs.

After a challenging work day in 2010, the employee underwent medical treatment for his shoulder. His condition forced him to take an absence from work for two months. The first insurer, Insurance Company of the State of Pennsylvania, paid weekly workers’ compensation benefits. The employee then returned to full-duty work.

Two years later, in 2012, a 75-pound box allegedly fell on the employee’s right shoulder, knocking him to the ground.  The second insurer, Federal, paid for the employee to receive about four weeks of physical therapy. The employee felt his shoulder was worse following that incident.

In his testimony, the employee stated he received cortisone shots for his right shoulder, starting in 2013. In 2014, he filed a claim against both insurers, seeking payment of his medical benefits and listing his “injections” as requested treatment.

Federal appealed, and the employee underwent an examination by an orthopedic surgeon, who opined that the 2012 injury did not affect the employee’s underlying condition or impairment.

Next, the judge found that after the 2012 incident, the employee began medical treatment for more intense pain than he had formerly experienced. The employee felt his shoulder had worsened. The judge noted that the employee had testified he was always agitating his shoulder at work. The judge also adopted the opinions of the orthopedic surgeon, which stated that the employee’s shoulder condition was a “continuum” over a long period of time while working.

In his own analysis, the judge noted that he found the employee suffered a continuum injury to his right shoulder from his employment for Chartpak, Inc. The judge stated that Federal remained the insurer for the employer, and since the employee suffered a major aggravation while working, it was difficult to identify a specific date of the accident. The judge stated that the order for treatment would be confined to continuing coverage by Federal.

Federal then appealed, arguing that the judge should not have looked into the scope of insurance coverage without notifying the parties he was going to use the information to convert the claim, on his own, to one that alleged a continuing injury claim under the successive insurer rule.  The insurance company contended it had not had an opportunity to present evidence on the issue.

In rejecting Federal’s allegations, the Board stated that the employee indicated that the successive insurer rule would apply. The employee had made clear that for his 2010 injury, no specific incident had taken place, but his shoulder was messed up from repetitive lifting.  The Board stated that the judge had been within his statutory authority to ask about the parties’ insurance coverage, considering the employee testified about ongoing problems and continued work performing the same job tasks.

The Board also stated there had not been an error in the judge’s application of the successive insurer rule that required Federal (the second insurer) to pay for the employee’s treatment.  Since the determination of whether the employee suffered an aggravation of a prior injury or a recurrence of symptoms is a question of fact, the Board asked whether a different finding was required as a matter of law. Here, the judge’s findings were supported by medical evidence.

At the Law Offices of Attorney Michael O. Smith, we help individuals seeking workers’ compensation benefits for their workplace injuries.  If you have been injured in a job site accident, you may be entitled to compensation for your injuries and lost wages from work.  We offer a free consultation with an experienced Boston workers’ compensation attorney, and our office can be reached at (617) 263-0060.

More Blog Posts:

Maximum Partial Incapacity Benefits Awarded to Massachusetts Employee in Reviewing Board Decision, Based on Policy Considerations Not to Deny Benefits to Seriously Injured Workers, Boston Workers Compensation Attorney Blog, October 27, 2016

Massachusetts Reviewing Board Awards Total Incapacity Workers’ Compensation Benefits to Employee Based on Combination of Previous Work-Related Injuries and Industrial Incident, Boston Workers Compensation Attorney Blog, October 17, 2016