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Massachusetts Appeals Court Rules Injured Employee Failed to Establish Partial Incapacity

The Appeals Court of Massachusetts addressed the issue of partial incapacity benefits pursuant to G.L. c. 152 § 35 in a workers’ compensation claim, In re Barbosa’s Case, 10 N.E.3d 1144 (Mass. App. Ct. 2014). The court was presented with an employee’s appeal of a decision of the reviewing board of the Department of Industrial Accidents, which had denied him partial incapacity benefits.

In May 2006, the employee suffered a workplace injury to his lower back and received § 34 total incapacity benefits and § 35 partial incapacity benefits until his return to full-time duty in September 2006. The employee subsequently left that job and took a lower-paying position. The employee then filed a claim seeking § 35 benefits from November 2006 and continuing, alleging that his 2006 injury had forced him to seek lighter and lower-paying work. That claim was denied in 2009 by an administrative judge.weld-1547865-640x480

The employee filed another claim, which was the subject of the appeal, asserting that his back condition had worsened since the 2009 decision. The claim was denied by a different administrative judge, who found a perceived pattern of the employee withholding impartial information from the impartial physicians in order to manipulate conclusions. The employee appealed that decision to the reviewing board, which found that the employee failed to produce medical evidence that his back condition worsened to cause an incapacity and that such worsening was causally related to the 2006 injury.

On appeal to the Appeals Court of Massachusetts, the employee argued that the reviewing board erred when it concluded that he failed to prove that his back condition worsened after the entry of the 2009 decision. In reviewing the case, the court held that the judge’s finding that the employee’s testimony was inconsistent was a credibility decision within the judge’s discretion. The court affirmed the ruling that the employee’s second employment did not aggravate his existing medical condition from the 2006 injury.

The employee also argued that the administrative judge erred by permitting the issue of causal connection to be relitigated. The appeals court disagreed, ruling that the issues decided by the 2006 claim did not fully litigate the issue of the causal connection. Finally, the employee contended that it was a prejudicial error for the reviewing board to characterize the cross-examination of the impartial medical examiner from a 2007 surveillance video of the employee as a harmless error. The appeals court, however, found that the judge was within his discretion to take judicial notice. Accordingly, the decision of the administrative judge and reviewing board was affirmed.

If you have suffered work-related injuries, you may be eligible for benefits under the Massachusetts Workers’ Compensation Act, including medical treatment and lost wages. The Massachusetts attorneys at Pulgini & Norton provide skilled and knowledgeable legal representation to individuals pursuing workers’ compensation benefits. To consult with one of our experienced attorneys regarding your claim, contact our office at (781) 843-2200 or online and schedule a consultation.

More Blog Posts:

Massachusetts Appeals Court Finds for Worker Claiming Partial Incapacity Benefits, Massachusetts Workers’ Compensation Lawyer Blog, published August 12, 2015

Massachusetts Appeals Court Rules Against Injured Worker, Discontinues Temporary Total Incapacity Benefits, Massachusetts Workers’ Compensation Lawyer Blog, published July 29, 2015

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