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Massachusetts Reviewing Board Reverses Judge’s Finding that Employee’s Disability Ceased Based on Surveillance Video Alone

The Massachusetts Department of Industrial Accidents Reviewing Board issued a decision in a workers’ compensation case centered on whether a judge relied upon necessary evidentiary support for causation.  The Board stated the rule that the proof of a causal relationship between an accident and a disability must rest upon expert medical testimony.  In this case, the judge had relied on a surveillance video, which is non-medical evidence, to find that a causal relationship had ended, as of the date of the surveillance. The judge held that the employee’s future incapacity and future need for treatment had ceased, since the employee apparently moved without discomfort.  On review, the Board reversed the fimanhole covernding that the injury was not a major cause of treatment needs after the date of the video; the finding had not been based on required medical evidence.

The employee worked in construction/road repair as a laborer, and he felt a pain in his back after he lifted a manhole cover in November 2009.  After a medical examination according to § 11A, the physician opined that the work accident was the major cause of the employee’s need for treatment and his disability. The physician estimated that after the exam (March 11, 2011), the employee may be capable of returning to work within six to 12 months.

The judge adopted the medical opinion and then reviewed surveillance videos, finding that the employee had not been incapacitated as of September 1, 2011 (the date of the video).  The judge also found that the industrial inquiry was not a major cause of disability after this date.

The employee, on appeal, argued that the judge had erred in finding that his industrial injury was not a major cause of his disability or need for treatment.  He argued that a surveillance video should not affect causation.

In their analysis, the Board stated that the judge had adopted the medical opinion of the examining doctor, which found the work-related injury had combined with a pre-existing condition, prolonging the disability or treatment needs as of March 11, 2011. In the surveillance videos, the judge had found that the employee had been active about six months following the examination on September 1, 2011. The activities included lifting, bending, and squatting, and the videos, according to the judge, made clear the employee was not incapacitated as of that date.

Here, the Board stated that the judge had adopted medical evidence stating that as of March 11, 2011, the industrial injury was the major cause of the employee’s disability.  The physician had not offered another medical opinion that the work injury was no longer a cause for treatment or disability. In fact, the Board stated that the judge made a finding on the causal relationship based on his own medical assessment that it ended as of the surveillance.  A judge, according to the Board, may not fill a medical evidentiary gap based on non-medical evidence.

Massachusetts law provides that videos may be considered and used by a medical expert in reaching an opinion on causation and disability.  But when the videos have not been presented to the physician, the judge commits an error by substituting his own opinion on the effect of activities. The surveillance video alone cannot support the judge’s finding that the causal relationship ceased as of September 1, 2011.  Here, the judge’s decision lacked evidentiary support.

The Board reversed the finding that the employee’s industrial injury was not a major cause of his need for treatment after September 1, 2011.

At Pulgini & Norton, a skilled Boston workers’ compensation attorney can provide legal guidance and dedicated advocacy on behalf of your right to compensation. If you or a loved one has suffered a work-related injury, you may be entitled to receive compensation for your lost wages and injuries.  Contact our office for a free, confidential consultation with an experienced workers’ compensation lawyer. We can be reached by calling (781) 843-2200 or using our online form.

More Blog Posts:

Massachusetts Reviewing Board Holds that Judge Had Not Based Finding on Specific Facts Regarding Employee’s Repetitive Lifting and Weight, Massachusetts Workers’ Compensation Lawyer Blog, February 9, 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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