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Massachusetts Reviewing Board Holds Judge Properly Continued Injured Employee’s Benefits, Despite Having Inappropriately Commented on Her Physical State at a Hearing

Recently, the Massachusetts Department of Industrial Accidents, Reviewing Board, affirmed a decision in favor of an injured employee’s temporary total incapacity benefits due to an industrial accident. On appeal, the Board focused on whether the judge had committed an error by considering evidence of the injured employee’s physical state, withcar crashout writing down this observation in the record. When a judge considers evidence, it must be properly identified so that each party to a case can challenge the evidence.  This identification also allows for a complete record, in the event of an appeal.  In this case, the Board found that the judge’s statement may not have been appropriate, but there was no reversible error because the observation was merely cumulative of other findings.

The employee in this case was injured in a work-related motor vehicle accident. The insurer had not contested liability for her neck and head conditions.  However, the insurer denied payments for proposed medical treatment. In response, the employee filed a workers’ compensation claim, seeking benefits for medical treatment.

After a § 11 hearing, the judge decided to maintain the employee’s § 34 benefits. While the insurer argued on appeal that the judge had rejected medical opinions, the Board found that there had only been a harmless error, based on the judge’s observations of the employee.

At the hearing, the judge had stated that the employee appeared physically uncomfortable. The rule is that a judge can consider evidence that has been introduced as evidence, and when findings are based on other evidence, it violates a party’s right to due process. This is because the parties must be able to challenge evidence and to establish a true and accurate record, should there be an appeal.

According to the Board, when a judge relies on observations at a hearing, those observations must be on the record.  While the insurer argued that the judge stated the employee appeared uncomfortable, changing her position from a seated to a standing position, the Board stated this observation had not been included in the transcript. Nevertheless, the Board stated it was a cumulative finding, so it was not a reversible error.

The judge found that the employee was entitled to ongoing temporary total incapacity benefits by adopting portions of the opinion set forth by the impartial physician.  The employee had been diagnosed with a closed head injury and a cervical spine strain.  There was a finding that the work injury remained the major contributing cause of her cervical spine condition and need for treatment. Additionally, the impartial physician had determined the employee could not lift or carry objects that weighed more than 10 pounds.

In his findings, the judge found the employee was a credible witness and accepted as true her testimony that before the work-related accident, she was fine and not in pain.  The judge had credited the employee’s testimony that made clear that after the accident, she experienced neck pain, headaches, and pain between her shoulder blades.

In this case, while the judge’s findings that were observed but not written down may have been “ill advised,” they were not arbitrary or capricious.

The Board affirmed the decision.

The Massachusetts attorneys at Pulgini & Norton offer skilled legal representation to injured people pursuing workers’ compensation benefits. After suffering a work-related injury or medical condition, you may be entitled to secure compensation for your injuries and lost wages, as provided by Massachusetts law.  Call our office at (781) 843-2200 or contact us online to set up your free, no-obligation consultation with a dedicated 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

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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