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Massachusetts Review Board Finds Employee’s Lyme Disease Was Caused by Exposure During Work For First Employer; Causation Established and Closed Period Benefits Awarded

The Massachusetts Reviewing Board recently upheld a decision in favor of an employee diagnosed with Lyme disease after being exposed to tick bites while working as a lineman.  The issue in this workers’ compensation case centered on when the tick bites were sustained.  The employee’s symptoms had begun potentially years after the tick bite, and the focus of the hearing before the administrative law judge was on causation.

tick bite

The employee in this case worked for one company from 2005 to 2007 and another beginning in 2008. While working for Employer 1, he was often outside, exposed to tick bites.  The employee explained that beginning in 2006, he endured abdominal pain, arthritic joint pain, and other symptoms that accelerated by June 2009. In September 2011, the employee left work due to the effects of Lyme disease, which is a tick-borne illness.  The disease disabled him until July 2012, but one year later, he was no longer in treatment.

At a hearing before an administrative workers’ compensation judge, the issue was when the tick bites were sustained that led to the Lyme disease; was the employee working for Employer 1 or Employer 2?  The judge found that the employee was infected while working for Employer 1 and ordered it to pay a closed period of § 34 benefits from September 2011 to July 2012. The judge had relied upon the opinion of Employer 2’s Independent Medical Examining Physician and held the symptoms were consistent with “possible Lyme disease diagnoses.”  Employer 1 argued that this “possible” diagnosis did not meet the legal rule that a medical opinion be expressed in terms of probability, rather than possibility.

The Board stated that in fact, the judge had qualified his opinion, explaining that while the tick bite took place years before, symptoms were progressive, and the disease solidified later.  The judge had not used the term “probable” but had met the evidentiary requirement through substantially equivalent language.  Employer 1’s argument failed, according to the Board.

The Board next rejected Employer 1’s argument that since the employee tested negatively for Lyme disease in 2006, he could not be diagnosed in 2011.  According to the adopted medical expert’s opinion, testing for Lyme disease is not reliable because it is challenging to diagnose.  A causal relationship was established, even in the face of a negative test.

Additionally, the Board rejected the allegation of Employer 1 that instead of exposure to “a few ticks” while working for Employer 1, the employee’s disease was caused by exposure to “numerous ticks” while working for Employer 2.  In fact, the judge had not adopted this opinion, which had been set forth in a medical opinion . Nor had the judge found the employee’s testimony concerning exposure to ticks while working for Employer 2 to be credible.  Again, the Board stated the judge’s findings on causation were supported in the record.

Employer 1 also argued that without personal testing of the employee, the medical opinions used by the judge were not reliable.  The court turned to case law concerning the reliability of a theory underlying a doctor’s opinion. Here, instead, the argument was that the doctor did not conduct his own tests and relied on the information of other doctors. The court rejected Employer 1’s argument.

Finally, regarding an award of attorneys’ fees in the amount of $9,000.00 to the employee’s attorney, the Board stated the rule that a judge has discretion to award fees due to the complexity of the dispute and the effort set forth.  However, enhanced fees must be grounded in the evidence and based on findings regarding the complexity of the dispute.  In this case, the record did not include an indication of how many hours were spent preparing or researching for the case.  The Board vacated the award of the enhanced fee and recommitted the matter.

The Board also dismissed the employee’s cross-appeal for lacking merit. The employee had argued that there may be a basis for the Administrative Judge’s decision, but there may also be grounds to reverse and award benefits against Employer 2.

The Board affirmed the decision of the administrative judge, except for vacating the award of enhanced attorneys’ fees, and recommitted for further findings.

The dedicated attorneys at Pulgini & Norton represent individuals hurt at work and pursuing a workers’ compensation claim.  Massachusetts law provides workers’ compensation for lost wages and injuries.  To better understand your legal rights, call our office at (781) 843-2200 or complete our online form. We can schedule a no-obligation, free consultation with a skilled workers’ compensation attorney.

More Blog Posts:

Massachusetts Reviewing Board Finds Second Employer May be Responsible for Employee’s Injury, Massachusetts Workers’ Compensation Lawyer Blog, April 27, 2017

Massachusetts Review Board Affirms Award of Workers’ Compensation Benefits to Injured Worker Disabled by Work Accident Years Before, Rejects Successive Insurer Rule as a Defense, Massachusetts Workers’ Compensation Lawyer Blog, March 30, 2017

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