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Massachusetts Reviewing Board Holds that Judge Had Not Based Finding on Specific Facts Regarding Employee’s Repetitive Lifting and Weight

In a recent appeal before the Massachusetts Department of Industrial Accidents Review Board, the workers’ compensation insurer for the employer argued that the employee’s back surgery was not causally related to his work injury. In this case, there had been a discrepancy of facts supporting the judge’s decision to award benefits to an injured employee.

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The employee, 44 years old at the time of the hearing, injured his back in 1991 while working at a supermarket, and he underwent a laminectomy (also known as decompression surgery, it involves enlarging the spinal canal to relieve pressure on the spinal cord and nerves) in the following year. In 1993, the employee returned to work for his employer, an electrical company, until he was laid off in 2009. He briefly returned to work for a large order in 2011 and then was laid off in March 2012.

According to the employee, he did not recall a specific incident that injured his back, but he stated that his injury took place during repetitive work-related carrying and lifting.

In 2013, following a § 10A conference, the judge ordered § 34 benefits, but the insurer was not ordered to pay for lumbar surgery. Both the insurer and the employee appealed the order, and the employee underwent a § 11A(2) examination. The examining surgeon’s report was the only medical evidence in the case.

The judge found that the employee suffered an industrial injury between August 2011 and March 2012. He held that this injury combined with a pre-existing back condition to cause or prolong a disability. While the industrial injury was a major but necessary predominant cause of the disability and need for treatment, the judge ordered payment of §§ 34 and 35 benefits, as well as payment of medical costs (including for a back surgery in November 2013).

The insurer argued that the impartial physician set forth a “major cause” opinion that was based on assumed work conditions that the judge had not credited. According to the insurer, the opinion did not sustain the employee’s burden of proof.  While the employee had described his work duties to the impartial examiner, including the weight that he lifted, the judge had acknowledged that the employee had exaggerated his description.

The Board held that the lack of specific findings was a problem, since the judge had found that it could not be determined what had been the employee’s frequency of lifting and carrying. While the employee stated to the doctor that he carried loads four or five hundred times a day, the judge found this to be an exaggeration. According to the Board, the issue was that without a record of the true number of times that the employee carried buckets, it was difficult to tell if the employee had in fact “somewhat” exaggerated, as the judge stated.

However, the Board stated that while the discrepancy between the facts the judge adopted and the facts provided to the doctor was a problem, it was not necessarily fatal to the employee’s claim.  The employee must prove every element of his claim, but there was no requirement that the causal connection be shown only through expert testimony. In this particular case, the judge mentioned the employee’s exaggerated testimony as one factor among others. He failed to specify these other factors. Therefore, the Board stated that it could not be clear whether the medical opinion could serve as the basis of showing a causal relationship.

The Board also held that the judge’s award of medical benefits for the November 2013 surgery did not have a medical onion foundation. When an employee makes a claim for medical benefits, the Board stated they are obligated to introduce evidence that the medical treatment was reasonable, adequate, and causally related. In this case, the employee’s testimony alone could not establish these factors. The employee did not submit additional medical evidence and therefore failed in meeting his burden of proof.

The Board held that regardless of the outcome of the causal relationship decision, the finding that the November 2013 surgery had been caused by repetitive work was an error.

The Board vacated the finding regarding the back surgery being causally related to the work injury and recommitted the case for further findings of the employee’s frequency and weight of lifting.

Injured workers or those suffering from work-related medical conditions may be entitled to recover compensation from their employer. At the Massachusetts firm of Pulgini & Norton, our workers’ compensation lawyers provide legal representation for individuals pursuing workers’ compensation benefits. Discuss your benefits claim with a skilled attorney by calling (781) 843-2200 or completing our online form.

More Blog Posts:

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

Massachusetts Reviewing Board Finds Harmful Error in Inconsistent Findings Regarding the Cause of Employee’s Psychological Harm, Massachusetts Workers’ Compensation lawyer Blog, December 16, 2016

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