Judge Can’t Use Video Evidence To Discontinue Workers’ Compensation

Employee Suffers Back Injury At Work

Mr. Carlos Araujo, age 58 at the hearing, was educated through the sixth grade in Uruguay. He speaks limited English and testified with the assistance of a Spanish interpreter. His work history consists of heavy labor. On his injury date, he was working as a construction laborer for United Walls Systems, LLC. His average weekly wage was $896.67. Mr. Araujo testified that on November 17, 2010, he was attempting to lift a manhole cover with a co-worker.  While lifting, he felt the onset of low back and right leg pain.

Physician Finds Employee Permanently Partially Disabled Due to Work Injury

Mr. Araujo was examined by Dr. Marc Linson pursuant to § 11A. In his May 16, 2012 report, Dr. Linson opined that Mr. Araujo had injured his back in the course of his employment on November 17, 2010 and that this injury had aggravated pre-existing lumbar degeneration and borderline stenosis at the L4-5 level. The pre-existing back condition had not been causing symptoms prior to the work injury. Dr. Linson found Mr. Araujo to be in severe and ongoing pain a year and a half after the injury. In Dr. Linson’s opinion, Mr. Araujo was permanently partially disabled with the injury of November 2010 being a major causal factor. The doctor found Mr. Araujo could do light work full-time but would not ever be able to resume his former heavy paving work. The judge adopted Dr. Linson’s opinions respecting causal relationship, diagnoses, and the nature and extent of Mr. Araujo’s disability subsequent to November 17, 2010, and that day he suffered an industrial injury.

Judge Uses Video Evidence to Discontinue Workers’ Compensation

Video evidence of Mr. Araujo’s activities was also admitted at the May 22, 2013 hearing. The video is less than 13 minutes long and purports to capture Mr. Araujo’s activities over approximately 52 minutes on December 10, 2012. He is seen driving women to a store. He remains outside, where he stands and occasionally walks. He drives the women back to a residence with their purchases. He then makes one trip from the vehicle while carrying several small white shopping bags into the residence. There is no reliable way of knowing how much weight he is carrying, and there was no testimony concerning this issue. The judge did not avail himself of the option of forwarding the video evidence to Dr. Linson to inquire if the actions of Mr. Araujo in the video would have altered the doctor’s opinions. See General Laws c. 152, § 11. The hearing judge noted he specifically relied upon the video of the employee’s activities as depicted on December 10, 2012, to terminate Mr. Araujo’s entitlement to § 35 benefits as of that date.

Reviewing Board Reverses Order to Discontinue Workers’ Compensation Benefits

Mr. Araujo appealed  from the judge’s decision awarding him a closed period of § 35 benefits, arguing the judge erred by relying in part on the video evidence of Mr. Araujo’s activities to conclude he was no longer disabled and therefore no longer entitled to partial incapacity benefits as of December 10, 2012. Mr. Araujo argued that once the judge adopted Dr. Linson’s opinions to award weekly partial incapacity compensation, the judge erred by discontinuing those benefits based primarily on the video evidence of the employee’s activities on December 10, 2012. The Reviewing Board agreed, finding that the judge erred because he assumed that, since Dr. Linson testified that his opinions were in part based on his assessment of the employee’s credibility at the time of his examination, the doctor would have changed his opinions if he had observed the employee’s behavior on the videotape or at the hearing. Such an assumption is, on the record, arbitrary. The insurer, AIM Mutual Insurance Co., did not ask Dr. Linson to view the video evidence. Nor did AIM Mutual ask the doctor any questions about Mr. Araujo’s activities. The hearing judge had the option of asking the doctor to view and comment on the video of the employee’s activities but chose not to do so. Since Dr. Linson steadfastly maintained the employee’s industrial accident caused a permanent partial disability, the judge was not free, on this record, to reject that opinion once he adopted it.

At Reviewing Board No. 036858-10, the Board reversed the part of the hearing judge’s decision terminating the employee’s entitlement to partial incapacity compensation as of December 10, 2012, and the insurer was also ordered to pay the employee § 35 benefits at the weekly rate of $364 from November 18, 2010 to the date of the Reviewing Board decision and continuing.

If you have become ill or been injured at work, for more information about the workers’ compensation process, contact a Boston workers’ compensation attorney at Pulgini & Norton to schedule a free consultation to find out more about what our lawyers can accomplish for you. Contact us with a brief description of your situation or reach us by phone at our Downtown Boston, Hyde Park, or Braintree, Massachusetts office locations.

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