Discrepancy Between Employee’s Statements and Judge’s Findings Required Recommital of Case, According to Massachusetts Reviewing Board

In a recent appeal, the Massachusetts Department of Industrial Accidents Reviewing Board determined that there had been errors in the judge’s decision to award an injured employee workers’ compensation disability and benefits, including payment for a back surgery aoperationnd related costs. The workers’ compensation insurer in this case had argued that the employee had not met his burden of showing causation for his work-related injury and resulting disability.

The judge had adopted facts showing that the employee in this case had a frequency of lifting and carrying as part of his work duties that differed from the facts the employee provided to the impartial medical examiner.   The judge noted the employee had “exaggerated somewhat” regarding the amount of weight he lifted, but nevertheless, the judge adopted the medical opinion based on this exaggeration.

At the time of the hearing, the employee was 44 years old. He had injured his back in 1991 while working at a supermarket. After undergoing surgery, he returned to work for the employer in this case, an electrical company, performing various jobs until 2009, when he was laid off. Two years later the employer rehired the employee, and he worked on a large job order until he was laid off in March 2012. While the employee did not recall specifically an incident that injured his back, he stated that his injury took place while performing work-related lifting and carrying.

The judge had ordered § 34 benefits after a § 10A conference in January 2013. The parties appealed, and according to § 11A(2), the employee underwent a medical examination by a board-certified orthopedic surgeon. The judge found that the medical report was adequate, and neither party sought to depose the physician or submit additional medical evidence.  The doctor’s report was the only medical evidence in the case.

The judge’s findings were that the employee suffered an injury while working between August 2011 and March 2012. This injury, according to the judge, combined with a pre-existing back condition to prolong his disability and treatment.   The judge also found the injury remained a major cause of disability. He ordered payment of §§ 34 and 35 benefits, as well as payment of medical expenses, including lumbar surgery.

On appeal, the insurer argued the employee had not met his burden of proof under § 1(7A), which is a heightened causation standard. According to Massachusetts law, when a compensable injury combines with a pre-existing condition, the employee may be compensated when the compensable injury is a major but not necessarily predominant cause of the disability.

When the judge adopted the impartial medical opinion, he acknowledged that the employee’s description of his job to the § 11A examiner was inconsistent with testimony at the hearing. The employee had said during his examination that he carried objects “four or five hundred” times a day. The judge stated that despite this “exaggeration,” the facts and opinions set forth by the doctor were accepted and adopted.

In their analysis, the Board stated that the insurer correctly argued that the judge’s finding that the employee had “exaggerated” his efforts failed to set forth specific information, allowing for effective appellate review. The judge did not make a finding regarding the number of times the employee carried buckets, and the lack of specific findings did not provide a complete record. The Board stated that without specific findings, they could not determine whether the judge correctly found the discrepancy was only “somewhat exaggerated.”

The Board stated that on recommital, the judge should make specific findings of fact, supported by evidence. However, the Board noted that expert testimony is not the only way to show a causal connection. In this case, the judge suggested there were other factors supporting his decision, but the Board stated they had not been specified.

At the Law Offices of Attorney Michael O. Smith, injured individuals pursuing workers’ compensation benefits receive experienced legal representation .  If you or a loved one has suffered a work injury, you may be entitled to compensation for your lost wages from work, as well as your injuries.  Contact our office to set up your free consultation with an experienced Boston workers’ compensation attorney. We can be reached at (617) 263-0060.

More Blog Posts:

Massachusetts Reviewing Board Holds that Judge’s Modification of Benefits Award was not Grounded in Medical Evidence, Boston Workers’ Compensation Attorney Blog, January 3, 2017

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