In a recent appeal, the issue before the Massachusetts Reviewing Board of Industrial Accidents was whether the judge who ordered an insurer to pay workers’ compensation benefits to an injured, 58-year-old auto mechanic had properly taken into consideration the employee’s ongoing knee problems, which contributed to his disability.
The Board stated that Massachusetts law holds that only work-related diagnoses are to be considered in a judge’s assessment of disability and benefits. In other words, to determine the extent of a disability caused solely by a work injury, the judge must use a narrow view. In the case at hand, since section 1(7A) (“personal injury” as defined may include pre-existing conditions) was not at issue, the Board stated the judge was to only consider the effect of the employee’s back injury.
The employee in this case worked as an automotive mechanic for most of his career and performed heavy work, lifting upwards of 100 pounds by himself and 250 with assistance. While bending and lifting at work, the employee suffered a herniated disc at L5-S1 (lower back). The insurer initially paid section 34 temporary total incapacity benefits. After surgery and initial improvement, the employee’s symptoms worsened.
The employee took multiple pain medications and underwent physical therapy. The insurer ultimately filed four complaints to modify or discontinue benefits, and the employee joined a section 34A claim for permanent and total incapacity benefits. Ultimately, the judge denied the insurer’s complaint to modify or discontinue the section 34A benefits awarded to the employee.
The insurer’s argument was that the judge relied on a doctor’s opinion (the employee’s examining orthopedist), and the doctor did not have knowledge that the employee was undergoing medical treatment for his knees. According to the insurer, the doctor’s opinion was not based on all of the facts and did not have a competent evidentiary foundation.
The Board stated that while the doctor had not mentioned the employee’s knee problems in his reports, during a deposition, the doctor had been asked about the effect that the employee’s past knee treatment may have had on his incapacity. According to the doctor, the limitations that he observed were due to the employee’s back injury. The doctor specifically explained that the employee’s back condition, rather than the functioning of his knee, was the basis of imposing restrictions. For these reasons, the Board stated the judge had not erred when he adopted the doctor’s opinion that causally related the employee’s disability to his back injury.
The Board also rejected the insurer’s contention that the employee’s condition had improved. In order to modify or discontinue weekly incapacity benefits, the Board stated there must be a change in the employee’s medical or vocational status, supported by the evidence. The burden is on the insurer to show evidence that the employee’s condition improved or that his vocational status changed. In this case, the insurer pointed to the employee’s cessation of narcotic use, arguing that it showed his pain level improved. But the Board noted that the judge had found that in fact the cessation of narcotics was based on a fear of addiction, rather than reduced pain.
Additionally, the Board stated the doctor noted an improvement in pain down the employee’s leg but did not indicate the employee had totally recovered from pain. The judge had credited the employee’s statement he still experienced pain. Finally, the Board noted that the fact that some of the employee’s symptoms may have lessened did not support a finding that the disability improved. There must be a medical opinion that indicates that the disability has changed.
The Board also noted that it had not been an error for the judge to dismiss the insurer’s claim that the employee could have returned to his work in a supervisory capacity. First, the Board stated there was no evidence a position like this existed. Second, there had not been any showing that the employee formerly worked in that capacity or had work skills that would have qualified him to work as a supervisor.
The Board affirmed the judge’s decision.
At the Law Offices of Attorney Michael O. Smith, we represent injured individuals pursuing workers’ compensation benefits following a workplace injury. If you or someone close to you has been injured in a job site accident, you may be entitled to compensation, both for your lost wages from work and for your injuries. Contact our office for a free consultation with an experienced Boston workers’ compensation attorney. We 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