Mass. Appellate Court Remands Order Awarding Benefits for Further Analysis Regarding Injured Employee’s Work Capacity Due to Lower Court’s Improper Determination

A critical phase of any workers’ compensation claim is determining the extent of the disability and the date that the injury occurred. Having a tenacious Boston workers’ compensation lawyer to assist you with ensuring that the rules are being appropriately and fairly applied in your claim can make all the difference.

In a recent claim, the employee was a plumber who suffered an injury to his neck while sleeping in 2004 that required a surgical procedure. In 2008 or 2009, the employee left self-employment and worked for a plumbing company. In 2013, he reported stiffness in his neck after using a hammer drill for approximately one hour. He underwent treatment with a neurosurgeon and the employer paid section 34 benefits until April 5, 2014. The employee then filed a claim for section 34 benefits from April 6, 2014, and continuing. The judge ordered the employer to pay section 34 benefits from April 6, 2014, to August 25, 2014, and section 35 benefits from August 26, 2014, and continuing. Both parties filed an appeal and the employee modified his request to seek section 34 benefits from September 11, 2013, the date of the injury, and ongoing.

The employee underwent an independent medical examination with an orthopedic surgeon. The judge allowed the employer to submit additional medical evidence after concluding that the orthopedic surgeon’s report did not sufficiently describe the connection between the pre-existing neck injury and the work injury. The judge then concluded that the employee suffered an industrial injury and that accident was a major but not necessarily predominant cause of the injury and need for treatment. He ordered payment of weekly section 34 benefits from the date of the injury to January 5, 2015, and payment of section 35 benefits from that date and continuing.

The employer appealed, arguing that the judge erred by finding that the work injury was a major cause of the ongoing disability. It argued, among other things, that the judge erred in adopting one of the medical expert’s opinions that the employee sustained a herniated disc, that the equipment he was using at the time of the injury was a hammer drill, not a jackhammer, and that the prior fusion was not considered in the assessment of causation.

The appellate court reviewed the claim and the record of evidence and concluded that the judge erred by concluding that the employee was only capable of performing 15 hours of work per week because the judge did not perform an incapacity analysis or rely on medical evidence when reaching this conclusion. Any determination regarding earning capacity must be explained and supported with facts in the record regarding the employee’s medical limitations, the employee’s capabilities including age and education, and the market for the employee’s skills. Accordingly, the appellate court remanded the case for further proceedings and ordered the employer to continue paying benefits consistent with the prior hearing decision.

If you were hurt at work, contact the seasoned Boston workers’ compensation lawyers at Pulgini & Norton as soon as possible to learn more about whether you are entitled to benefits and reimbursement for medical expenses. Having handled numerous claims on behalf of Massachusetts residents, we understand how confusing and stressful this situation is for you and your family. Call us today at 781-843-2200 or contact us online to get started.

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