Successive Insurer Rule Applies, Massachusetts Review Board Finds Second Employer Must Compensate Employee for Shoulder Injury

In a decision addressing the successive insurer rule in workers’ compensation cases, the Massachusetts Department of Industrial Accidents, Review Board, recommitted a case in which the judge had erred by holding that an employee had not suffered an injury to her right shoulder while working for her most recent empemergency roomloyer. The Board held that the judge inappropriately substituted his own opinion for that of the medical examiner and mischaracterized that opinion so that he would not have to abide by the legal effect. In other words, since the employee’s shoulder injury was worsened while working for the second employer, that employer was required to compensate her, according to the successive insurer rule.

According to the successive insurer rule, employers must pay compensation to employees who suffer a worsening of an injury caused while working for a previous employer.  Before working for her most recent employer, in October 2007, the employee suffered injuries to her shoulder and right knee. She had fallen down a flight of stairs and was paid weekly total incapacity benefits through March 2008.

The employee had undergone shoulder surgery and in December 2012 secured a lump sum settlement agreement with her first employer for medical treatment and benefits. Liability had been settled regarding injuries to her left shoulder and a sprain/strain to her right shoulder.

Nearly a year later, the employee brought separate claims against her employers, seeking medical treatment and benefits related to her right shoulder and benefits from the date of her left shoulder surgery forward. An impartial medical examiner issued a report, which was accepted by the judge.  He denied the claims against the second employer, ordering the first employer to pay for medical treatment.

The Board stated that the employee and the first employer contended the judge should have applied the successive insurer rule.  Additionally, the Board stated that the judge’s decision had been inconsistent and had ignored medical evidence and the employee’s own testimony.

Turning to the medical opinions that had been adopted by the judge, the Board included in their opinion the judge’s analysis, which focused on the fact that the employee’s left shoulder condition naturally progressed to cause her deficient left shoulder.  The judge had found that the employee had not suffered an injury while working for the second employer.

In fact, the Board noted that the medical examiner had stated that the employee’s use of her right arm and her medical symptoms involving her right shoulder had worsened due to her work for the second employer.  Here, the judge mischaracterized the medical opinion and substituted his own opinion instead of the medical examiner’s opinion.

The rule, according to the Board, is that a worsening of a condition, even to the “slightest extent,” sufficiently attaches liability in a successive insurer case.  In this case, the Board stated that the medical opinions had established the employee suffered an injury to her right shoulder while working for the second employer.

In conclusion, the Board recommitted the case for further findings of fact and rulings of law.

At the Law Offices of Attorney Michael O. Smith, we advocate for workers injured in a job site accident or suffering from a work-related medical condition.  To understand your legal rights and potential compensation for injuries and lost wages from work, contact an experienced Boston workers’ compensation attorney. We provide a free consultation and can be reached at (617) 263-0060.

More Blog Posts:

Injured Employee Entitled to Continuing Benefits, Since Insurer Failed to Meet Burden of Showing Medical Condition Improved According to Massachusetts Law, Boston Workers Compensation Attorney Blog, January 12, 2017

Successive Insurance Rule Appropriate; Massachusetts Department of Industrial Accidents Reviewing Board Upholds Insurance Coverage for Employee’s Repetitive Injury to Right Shoulder, Boston Workers Compensation Attorney Blog, November 11, 2016