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Massachusetts Reviewing Board Holds Medical Opinion Necessary to Support Finding of Compensability and Evidence Supports First Insurer’s Liability for Injured Painter’s Incapacity Period

In a decision involving the successive insurer rule, the Massachusetts Reviewing Board of the Department of Industrial Accidents held that a medical opinion must support a finding of causality between an injury and compensability and that the evidence in the case at hand indicated the injured worker’s incapacity was due to an industrial accident that occurred while working for the first insured. The first workers’ compensation insurer for apainter ladder painting company was deemed liable for incapacity benefits awarded to an employee who, after suffering an industrial accident with the first company, had secured employment with another company, while continuing to suffer from residual knee problems.

In their review, the Board analyzed the judge’s reliance on medical evidence. In order to shift legal responsibility from one insurer to another, the Board made clear there must be a supportive medical opinion. In this case, the Board rejected the first insurer’s argument that the worker’s knee complaints were related to his work for the second company.

The procedural history indicated that the judge had awarded the employee a closed period of section 34 benefits and ongoing section 35 benefits. He had also been awarded section 13 medical benefits, including left knee surgery, and attorney fees. The first insurer argued that the judge should have found the second insurer also liable for the employee’s latest incapacity period and medical benefits. This argument was grounded on the successive insurer rule, setting forth liability when a worker suffers several compensable injuries while working at jobs covered by different insurers. The subsequent injury must be compensated by the insurer at the time of the most recent injury. There must be a causal relationship between the industrial accident and the incapacity.

In this case, the first insurer accepted liability for the worker’s injury in August 2011, suffered while working as a foreman for a painting company. The employee hurt his knees when he fell out of a truck. A year later, the employee again hurt his knee, while working for the same painting company. Total incapacity benefits were paid for a few months, and then, after a conference on the employee’s claim for further compensation, the first insurer was again ordered to pay section 34 benefits.

After a period of receiving unemployment, the employee began work for a new painting company, insured by the second insurer in this case. While working for this company, the employee suffered increased pain in his knees while climbing and kneeling.

The employee was laid off from the second company in December 2013 and received unemployment compensation until April 2014. In September 2014, the employee underwent a second right knee surgery (his first was in August 2012) that reduced his knee pain.

At the hearing before the administrative judge, the employee sought medical and incapacity benefits from the first insurer for a short period in December 2013, and from April 2014 forward. The first insurer argued that the employee’s work for the second painting company caused his further injury and incapacity, and it moved to join the second insurer.

At the hearing, the judge turned to the medical evidence and supporting medical opinions. Specifically, one medical opinion stated that after being laid off from the second painting company, the employee’s incapacity was due to his August 2011 industrial accident. The judge ordered the first insurer to pay the employee’s benefits for all of the periods claimed by the employee.

On review, the Board rejected all of the arguments set forth by the first insurer, arguing that the judge misapplied the successive insurer rule. First, the court dismissed the first insurer’s argument that the second insurer was liable for the employee’s injuries, based on the employee’s testimony and the temporal relationship of the employee’s increasing pain while working for the second painting company. In fact, the Board stated, expert medical testimony must support a finding of compensability.

Next, the first insurer argued that the judge erred by adopting the medical opinion linking the ongoing injuries to the August 2011 injury because the doctor advancing that opinion had not been aware of the employee’s testimony or of other medical opinions. The Board stated that the weight, rather than the credibility, of the doctor’s opinion was a matter for the judge to determine. Additionally, the Board stated that had the first insurer wanted to ask questions and clarify questions regarding the doctor’s opinion, they were capable of deposing him.

The Board affirmed the decision awarding the employee benefits, finding the first insurer liable.

If you have been hurt while working on the job, you may be entitled to compensation for your injury, including medical benefits and lost wages. At the Massachusetts firm of Pulgini & Norton, our workplace injury lawyers represent and guide people pursuing workers’ compensation benefits for work-related injuries and conditions. Call our office at (781) 843-2200 or complete our online form and discuss your benefits claim with an experienced attorney.

More Blog Posts:

Workers’ Compensation Insurer did not Meet Burden of Showing Improvement in Employee’s Medical Condition; Massachusetts Reviewing Board Affirms Award of Total and Permanent Incapacity Benefits, Massachusetts Workers’ Compensation Lawyer Blog, January 12, 2017

Reviewing Board Holds Judge Made Findings Contrary to Medical Evidence and Massachusetts Workers’ Compensation Rules of Law Concerning Modification of Benefits Award, Massachusetts Workers’ Compensation Lawyer Blog,December 22, 2016

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