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Massachusetts Employee’s Workers’ Compensation Benefits for Specific Injury Affirmed

The Department of Industrial Accidents Reviewing Board recently released a decision in the matter of Karen L. Wunschel v. Charter Communications. In a previous 2011 hearing decision, an administrative judge found that the employee suffered workplace injuries. That decision was not appealed, and the employee subsequently filed claims for workers’ compensation benefits pursuant to M.G.L.A. 152 § 13, § 30, and § 36. At the hearing regarding these subsequent claims, no witness testimony was taken. The administrative judge based his decision solely upon the prior 2011 decision, medical evidence, and the parties’ briefs. Ultimately, the employee was awarded workers’ compensation benefits for specific injuries pursuant to § 36, as well as home health care benefits pursuant to § 13 and § 30.balance-1172800-639x433

The employer’s insurer appealed the decision, contending that since the employee failed to comply with the evidentiary standard required by Massachusetts Regulations, the award of § 36 benefits should be reversed. Under M.G.L.A. 152 § 36, an employee is entitled to a lump sum for certain serious injuries that are enumerated in the statute, such as disfigurement, amputation, loss of vision or hearing, and others. Pursuant to 452 Code Mass. Regs. § 1.07(2)(i), claims for § 36 benefits must include a physician’s report indicating the maximum medical improvement that has been reached and a medical opinion as to the permanent functional loss according to the American Medical Association’s guide. In Wunschel, it was undisputed that the employee failed to present a medical evaluation as required by § 1.07(2)(i). The Reviewing Board, however, found that since the insurer failed to object to the lack of medical evaluation or avail itself of any other available options, the issue was deemed waived.

The insurer also argued that the health care benefits awarded under § 13 and § 30 are not qualified medical expenses. Pursuant to M.G.L.A. 152 § 30, the insurer is required to furnish adequate and reasonable health care services to an injured employee, as well as expenses necessary and incidental to such services. In Wunschel, the employee supported her claim for home health care benefits under § 13 and § 30 with a medical opinion that the employee required a home health aide six hours a day to assist her with activities of daily living and personal care.

On appeal, the insurer contended that services provided by a home health aide are not “medical services” as defined by statute. The Reviewing Board did not reach the merits of the issue, since there was no hearing record to review. As a result, the Reviewing Board affirmed the award of § 36 benefits but remanded the decision for a hearing regarding the § 13 and § 30 benefits.

If you have been injured in a jobsite accident, you may be able to receive compensation for your medical expenses and lost wages. The injury attorneys at Pulgini & Norton provide experienced and skilled legal representation to clients pursuing workers’ compensation benefits in Massachusetts. To schedule a consultation with one of our experienced attorneys, contact our office at (781) 843-2200 or through our website.

More Blog Posts:

Massachusetts Employee Has Standing to Bring Claim for Reimbursement of Benefits Paid by MassHealth and Medicare, Massachusetts Workers’ Compensation Lawyer Blog, published December 10, 2015

Massachusetts Employee Has Standing to Bring Claim for Reimbursement of Benefits Paid by MassHealth and Medicare, Massachusetts Workers’ Compensation Lawyer Blog, published December 10, 2015

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