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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

Recently, the Massachusetts Department of Industrial Accidents, Reviewing Board affirmed a judge’s decision to continue an award of section 34A permanent and total incapacity benefits, according to Massachusetts workers’ compensation laws, to an injured auto mechanic. The workers’ compensation insurer for the worker’s employer had moved to modify or discontinue his award of benefits.  In this appeal, the Board assessed auto mechanicwhether the insurer’s argument that an administrative judge had erred was legitimate.  Ultimately, the Board held that the judge had not erred in relying on a medical opinion that causally linked the employee’s disability to his work injury.

The employee worked as an auto mechanic for most of his career, and as a 58-year-old, he engaged in heavy work, such as lifting up to 100 pounds alone and 250 pounds with the assistance of others. The employee suffered a back injury at work, while bending and lifting. The insurer accepted the workers’ compensation case and paid his section 34 temporary total incapacity benefits.

After undergoing surgery as well as physical therapy and taking multiple pain medications, the employee continued to suffer.  The insurer filed a complaint for a modification or discontinuance of his benefits, and the employee joined a claim for section 34A permanent and total incapacity benefits.  Twice, administrative judges found that the employee remained permanently and totally disabled, and one complaint was withdrawn before the hearing. At a hearing for the fourth complaint for modification or discontinuance, the judge adopted the opinion of the employee’s examining orthopedist.

The orthopedist had made clear that because of the employee’s back condition, he was totally disabled from his work as an auto mechanic.  In his opinion, the doctor made clear that his restrictions reflected those of the impartial examiner, who stated that the employee’s back condition and its effects made him incapable of performing work duties of any kind.

In addition to the orthopedist’s medical opinion, the judge also adopted the employee’s own testimony that he continued to suffer pain.  Since the judge found that the employee’s lower back injury and resulting disability were caused by his work accident, he denied the insurer’s complaint to modify or discontinue benefits.

On appeal before the Board, the issue was whether it had been appropriate for the judge to rely on the orthopedist’s causation opinion.  The insurer argued that whether the employee’s knee condition affected his disability had not been considered.  In short, the insurer claimed that the employee’s knee problems, for which he had been in treatment before and after his testimony, contributed to his disability.

Stating the rule that only work-related diagnoses can be the basis of a judge’s disability assessment and award of benefits, the Board rejected the insurer’s argument.  The orthopedist had been asked about previous treatment for knee problems and whether that affected the employee’s incapacity. He had stated that the limitations he saw in the employee were based on the employee’s back injury.

The Board also stated that the orthopedist had specifically stated that the work restrictions that had been imposed were due to the employee’s back conditions, rather than knee conditions.  The Board stated it had not been an error for the judge to adopt the orthopedist’s opinion that causally related the employee’s disability to his back injury.

Additionally, the Board rejected the insurer’s claim that the employee’s condition had improved.  The employee had been awarded permanent and total incapacity benefits, and in order to modify or discontinue these, the Board stated the insurer bore the burden of showing an improvement in the employee’s work status or disability, or both. The Board noted that this burden had not been met, since the employee had stopped taking pain medications due to a fear of addiction, rather than a decrease in pain.  And the Board made clear that while some symptoms for the employee had lessened, without a medical opinion, there had not been an indication that the employee’s disability had improved.

The Board also rejected the notion that the employee could have returned to a supervisory role in his former profession, without the physical demands of being a mechanic. Not only was there no evidence that a role such as this existed, the Board stated that there had not been evidence that the employee worked in this supervisory capacity or had new vocational skills qualifying him to be a supervisor.  Instead, the opinions indicated that the employee could complete sedentary work, with significant limitations.

The Board affirmed the decision of the judge, directing the insurer to pay the employee’s attorney fees in the amount of $1,613.55.

The Massachusetts attorneys at Pulgini & Norton offer experienced legal representation to injured people pursuing workers’ compensation benefits. If you have been hurt at work, you may be entitled to receive compensation, both for your lost wages and for your injuries, according to Massachusetts law.  Call our office at (781) 843-2200 or contact us online to discuss your claim with one of our professional, dedicated attorneys.  We provide a free, no-obligation consultation.

More Blog Posts:

Massachusetts Reviewing Board Upholds Judge’s Determination that Employee was Permanently and Totally Disabled and Suitable for Vocational Rehabilitation, Massachusetts Worker’s Compensation Lawyer Blog, January 5, 2017

Massachusetts Reviewing Board Awards § 34 Benefits Based on Medical Record Showing that Disability Extended Beyond Exhaustion of § 35 Benefits, Massachusetts Worker’s Compensation Lawyer Blog,  October 27, 2016

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