In Workers’ Compensation Hearing, Judge Must Consider Proper Evidence and Consider It Properly

An Administrative Law Judge (ALJ) in Massachusetts, in deciding whether an injured employee should receive workers’ compensation benefits, must consider and use evidence correctly in making a decision, or the decision could be thrown out by the Reviewing Board.

A hospital employee who was injured on the job at Brigham and Women’s Hospital applied for benefits. The ALJ denied benefits on the basis that the employee’s ongoing partial disability was not caused by her work injury. The ALJ adopted in part the opinions of three physicians, interpreting their opinions to conclude that the employee was totally disabled for a period of time, continued to be partially disabled, but the partial disability was not related to her work injury.

On appeal, in a decision issued in May 2014, in the case of Mae Roscoe v Brigham and Women’s Hospital et al., Board No. 017001-11, the Reviewing Board found the ALJ had made a number of mistakes with regard to the evidence in the case and therefore overturned the ALJ’s decision.

On July 11, 2011, the employee was a sixty-two year old team leader/phlebotomist, who had worked for Brigham and Women’s Hospital for about twelve years. She was moving a heavy medical cart out of a patient’s room when she banged her right knee against a device attached to the patient’s bed.

She reported the injury and went to the Occupational Health Department where she was seen by Dr. Leo Troy. Dr. Troy diagnosed a torn medial meniscus and performed a partial medial meniscectomy. The employee also had three Synvisc injections and about two months of physical therapy.

The self-insurer, Partners Healthcare System, Inc., paid compensation on a without-prejudice basis from the date of injury until November 2011, and the employee filed a claim for weekly and medical benefits.

After a section 10A conference, the ALJ ordered the self-insurer to pay section 34 weekly benefits and sections 13 and 30 medical benefits, but not payment for the partial medial meniscectomy. Both parties appealed.

At the hearing before the Reviewing Board, the employee claimed section 34 benefits beginning July 12, 2011. The self-insurer denied that she was disabled, denied the extent of her incapacity to work, and denied the causal relationship between the work injury and her incapacity.

The Reviewing Board found that the ALJ had made the following errors:

  • The ALJ relied on a report from Dr. Troy which had not been admitted into evidence.

It was a procedural error, but an error nonetheless, and the Reviewing Board excluded this report.

  • The ALJ considered medical records related to the “gap period” between the date of injury and the date of the impartial medical examination.

The Reviewing Board ruled that such reliance for anything other than gap period benefits, without notice to the parties, denied their due process rights.

  • Considering the report of the impartial examiner, Dr. McGlowan, which the Reviewing Board found to be so unclear and contradictory as to be inadequate as a matter of law.

Dr. McGlowan diagnosed the employee with a meniscal tear and a contusion, both caused by her work injury, but then he referred to her injury as a “strain,” a diagnosis not in any of the employee’s medical records. The doctor then proceeded to discuss the employee’s pain, but never referred to the meniscal tear and contusion in arriving at his causation opinion. He made two contradictory statements in the course of one sentence:  that the employee had no previous knee condition, but that her injury on July 11, 2011 exacerbated the “preexisting” condition.

The Reviewing Board noted that the ALJ seemed to have caught the inconsistencies in Dr. McGlowan’s report and then tried to change the language of the report in his own decision. However, the ALJ did not have the right to do this.

The Reviewing Board recommitted the case for admission and consideration of evidence the employee offered to contradict Dr. McGlowan’s report.

The Reviewing Board vacated the part of the ALJ’s decision that the employee’s partial disability after July 6, 2012 was not causally related to her work injury of July 11, 2011.

The Reviewing Board sent the case back to the ALJ for admission and consideration of new evidence and further findings consistent with the Reviewing Board’s opinion.

A denial of benefits is not the end of the process. The experienced attorneys at our firm will fight for you every step of the way. For more information about the workers’ compensation process, contact a Boston workers’ compensation attorney from 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.

More Posts:

Pain Management and Workers’ Compensation, Massachusetts Workers’ Compensation Lawyer Blog, April 23, 2014

The Top Five Most Expensive Workers’ Compensation Claims, Massachusetts Workers’ Compensation Lawyer Blog, March 26, 2014

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