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Massachusetts Reviewing Board Awards § 34 Benefits Based on Medical Record Showing that Disability Extended Beyond Exhaustion of § 35 Benefits

The Massachusetts Department of Industrial Accidents, Reviewing Board recently affirmed a decision in favor of an injured employee. In this case, the court examined whether a medical report submitted after the close of evidence in the underlying hearing could form the basis of an ongoing award of section 35 benefits.  The issue was whether an employee’s disability was ongoing, requiring payment of maximum partial incapacity benefits after section 34 benefits had been exhausted.

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There were two previous decisions in this matter. The first decision included the judge’s findings that as of July 6, 2012, the date of an impartial medical examination, the employee’s work injury was not related to her ongoing partial disability and incapacity. The judge awarded a closed period of section 34 benefits, from the date of the injury, July 11, 2011, to July 6, 2012.

Then, the employee appealed this decision, stating that the judge erred in denying her motion for finding that the medical record was inadequate.  The Board agreed, since the report had been ambiguous and inconsistent, and it was not to be accorded exclusive, prima facie status. The judge then allowed gap medical evidence to be introduced before the July 6, 2012 examination.  But the judge erred in relying on gap medical opinions supporting his findings, including basing his findings on an opinion that was not admitted into evidence at all.

The Board then vacated the judge’s findings that the employee continued to be partially disabled and that her ongoing disability was not related to the injury of July 11, 2011. The Board stated that since the employee’s appeal challenged the part of the decision that awarded section 34 benefits until July 6, 2012, the Board recommitted the matter.  The purpose was to admit and consider additional medical evidence in order to reach further findings.

On recommittal, the Board stated that a July 2, 2015 medical report was submitted by the employee. This opinion was adopted by the judge to support his award of section 34 benefits. In the current appeal, the self-insurer argued the judge should not have found the employee remained disabled and erred in relying on the July 2, 2015 report, written after the close of evidence in the underlying hearing.

The Board stated that since the judge had erred in denying the employee’s section 11A(2) motion, on recommittal, the judge needed to admit additional medical evidence regarding the employee’s entitlement to benefits from July 6, 2012 forward.  Since the judge addressed the employee’s entitlement from July 6, 2012 onward, all evidence that might help determine the extent of the disability after that date, causally related to the injury, was to be examined.

Next, the Board rejected the self-insurer’s argument that the judge erred in admitting and relying on the medical report of July 2, 2015. The self-insurer had not objected to the admission of that report. After the judge’s first decision, the record showed that the self-insurer submitted medical records and reports. In other words, the self-insurer availed itself of the opportunity to submit post-hearing records.  The self-insurer had not been prejudiced by the judge taking into consideration the report of July 2, 2015.

The Board concluded that the judge erred in awarding ongoing section 34 benefits that exceeded the 156-week statutory limit set forth in Massachusetts law.  Since the employee’s benefits began on July 11, 2011, they exhausted on July 11, 2014.  However, the Board stated that a judge may award lesser included section 35 benefits when assessing whether to award section 34 benefits for the same period. Here, the award of section 34 benefits was based on a medical opinion that post-dated the exhaustion of the employee’s section 34 benefits.

In conclusion, the Board stated the record supported modifying the judge’s order to require payment of maximum partial incapacity benefits from July 12, 2014 and continuing.  The Board stated the policy reason for awarding section 35 benefits when section 34 benefits have expired is to ensure a seriously injured worker is not denied benefits, since those less injured are not.

The Massachusetts attorneys at Pulgini & Norton offer diligent legal representation to injured people pursuing workers’ compensation benefits.  If you or a loved one suffered injuries while working, you may be entitled to receive compensation for your lost wages and injuries.  Contact our office at (781) 843-2200 or online to discuss your claim with one of our hardworking attorneys. We provide a free consultation.

More Blog Posts:

Reviewing Board Holds Nurse Assistant’s Previous Work-Related Injuries Combined with Industrial Incident in Massachusetts to Support Award of § 34 Benefits, Massachusetts Worker’s Compensation Lawyer Blog, October 20, 2016

Massachusetts Reviewing Board Holds Employee Has Right to Compensation, Even When Employer Files for Bankruptcy, Massachusetts Worker’s Compensation Lawyer Blog, July 7, 2016

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