Massachusetts Board Holds Medical Testimony Not Required When Only Issue is Amount Due Employee for Work-Related Limp

Recently, the Massachusetts Reviewing Board of Industrial Accidents addressed an appeal in a case involving benefits for a work-related limp suffered by an employee. At issue was not the cause of the injury but instead the amount of benefits awarded the employee.  The judge had not relied upon a medical report, and the insurer appealed on the ground that it should have been factored into the assessment of the employee’s limp.

The insurer for the employer appealed the decision in favor of the employee, who was awarded $10,940.70 under § 36(1)(k) for a work-related limp.  This section of Massachusetts law provides that an employee shall be paid compensation for specific injuries, including those for bodily disfigurement.

The employee sought disfigurement benefits for a limp caused by a work-related left knee injury.  At a conference, the employee was awarded $8,205.53.  Both the employee and the insurer appealed.  Under § 11(A)(2), a medical examination took place, and Dr. James Bono issued a report on March 11, 2015.  The judge stated Dr. Bono had not specifically addressed the limp in his report, but the judge did note that the doctor reported the employee walking without an obvious limp.

After receiving Dr. Bono’s report, the insurer withdrew its appeal of the order.   The sole remaining issue in the hearing was the total amount of § 36(1)(k) compensation. In other words, since the insurer withdrew its appeal of the conference order, causation was determined between the employee’s injury and his limp.

The judge at the hearing observed the employee walking and found that he “displayed a slight limp.” The judge relied on the employee’s testimony and his viewing of the limp, and he also credited the insurer’s witness.  This witness gave testimony about his own surveillance of the employee and his conclusion that the employee had a “slight” or “minor” limp.

The judge then awarded the employee $10,940.70.  This amount reflected the sum of multiplying the state average weekly wage on the date of the employee’s injury by 10, which is the “slight” range of section 36 regulations.   The insurer did not take issue with the judge’s use of the guidelines to arrive at the sum of $10,940.70.

On appeal, the insurer contended that the judge erred by assessing the employee’s limp without taking into consideration Dr. Bono’s opinion.

The Board stated that when the insurer withdrew its appeal of the conference order, a medical issue sub judice no longer existed. The only issue was related to the amount the employee should receive for his work-related limp.  Expert medical testimony is not required for this determination.  The Board stated the judge had the ability to asses the severity of the limp by observing it at the hearing.  The Board also noted that the judge’s characterization of the limp was not materially different from the adopted opinion of the insurer’s own witness.  Finally, the Board stated that the judge concluded the employee had a “slight limp,” which was in accordance with Dr. Bono’s conclusion that the employee moved “without an obvious limp.”

The Board affirmed the decision, ordering the insurer to pay attorney’s fees to the employee’s counsel.

Workers who have suffered on-the-job injuries may be entitled to coverage for medical treatment and expenses, as well as lost wages, under the Massachusetts Workers’ Compensation Act.  The injury attorneys at Pulgini & Norton provide aggressive and dedicated legal representation to individuals seeking workers’ compensation benefits in Massachusetts. To discuss your benefits claim with one of our skilled attorneys, contact our office at (781) 843-2200 or online and schedule a free consultation.

More Blog Posts:

Massachusetts Reviewing Board Addresses Inconsistencies of Fact and Medical Opinion Regarding Injured Worker’s Psychiatric Condition, Massachusetts Workers’ Compensation Lawyer Blog, June 19, 2016

Massachusetts Reviewing Board Holds Determination of Injured Worker’s Change in Disability Must be Based on Credible Evidence and Not Her Testimony of Hope and Need for Surgery,  Massachusetts Workers’ Compensation Lawyer Blog, May 26, 2016

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