Massachusetts Board Upholds Admission of “Gap” Medical Evidence to Address Changes in Injured Employee’s Disability

The Massachusetts Reviewing Board of Industrial Accidents recently reviewed an administrative judge’s decision regarding § 34 and § 35 benefits in a workers’ compensation appeal.  Specifically, the judge allowed the employer’s insurance company to submit additional medical evidence in support of modifying the injured employee’s benefits.

At the time of the hearing, the employee, Jeffrey Spencer, was 48 and had experience as a construction worker, tree climber, pruner, and truck driver.  He worked as a concrete mixer driver for JG MacLellan Concrete Co., his employer.  Mr. Spencer’s position required driving the concrete mixer driver for the employer and mixing the concrete, as well as installing heavy (60-90 pounds) metal chutes to deliver the concrete at the worksite.

On November 25, 2013, Mr. Spencer slipped and fell on a wet surface, and his arm was caught as he fell, causing a work-related injury to his right shoulder.

The insurer paid Mr. Spencer without prejudice, from the date of the injury through April 25, 2014.  Then, Mr. Spencer filed the present claim for § 34 benefits from April 26, 2014 forward.  After a conference, the insurer was ordered to pay the employee the § 34 benefits, and the insurer appealed.  Mr. Spencer underwent physical therapy and received an injection to his right shoulder before he underwent surgery on January 5, 2015.

Dr. Victor Conforti examined Mr. Spencer and found that he needed another two or three months of physical therapy.  At a hearing on May 26, 2015, the insurer moved to submit additional medical evidence for the period after Dr. Conforti’s report.  The insurer stated that the report inadequately addressed Mr. Spencer’s present disability, and it moved to submit an independent medical review and more recent encounters between Mr. Spencer and the surgeon.

Mr. Spencer objected to the admission of this evidence, on the basis that Dr. Conforti’s report was adequate.  The reports that allegedly updated the information, according to Mr. Spencer, were only three weeks after his earlier exam.

The judge had stated that the insurer was arguing for a modification rather than a complete discontinuance of benefits. The judge summarized that Mr. Spencer had been totally disabled from the date of the accident, November 25, 2013, to May 18, 2015. The judge stated that Mr. Spencer now was partially disabled and that he could earn $10 an hour, or $400 a week.

On appeal, the Board stated the issue was whether the judge erred in allowing the “gap” medical reports to be admitted into evidence.  Mr. Spencer contended the judge should not have admitted the additional medical evidence without finding inadequacy or medical complexity.  But the Board stated that Mr. Spencer failed to acknowledge that the insurer’s motion was for a finding of inadequacy on the present disability issue.  In fact, the Board stated, the insurer was arguing that Dr. Conforti’s report was inadequate because it did not account for Mr. Spencer’s progress in post-surgery recovery.  Since the judge had limited the additional medical evidence to reports from after the impartial medical examination, the Board stated the judge’s findings were clear.

Again, Mr. Spencer contended that medical records 39 days post-impartial examination are too close in time to the impartial examination for admission.  The Board stated that Mr. Spencer had not considered the fact that the first impartial medical examination took place during his active recovery period, three months after surgery.

The Board also stated that admitting “gap” medical reports addresses inadequacies in an impartial medical examiner’s report for a specific timeframe.  Section 11 A(2) allows a judge to exercise discretion in allowing “gap” medical reports. Here, the Board stated the judge exercised sound discretion when he granted the insurer’s motion.

Regarding Mr. Spencer’s earning capacity, the judge had found that Mr. Spencer could be employed full-time, at the lower end of the wage scale. The Board stated that the minimum wage established the floor below which the hourly earning rate could not fall, and since there was no evidence supporting a wage above the minimum rate, the award was modified so that the insurer would pay § 35 benefits at a rate of $230.22 per week, based on earning $9.00 per hour for 40 hours.

Most workers who have suffered on-the-job injuries are entitled to coverage for medical treatment and expenses, as well as lost wages, under the Massachusetts Workers’ Compensation Act. At Pulgini & Norton, our injury attorneys provide aggressive and dedicated legal advocacy 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 Employee Prevails on Claim for Workers’ Compensation Partial Incapacity Benefits, Massachusetts Worker’s Compensation Lawyer Blog, March 24, 2016

Massachusetts Employee Denied Workers’ Compensation Benefits Due to Insufficient Evidence, Massachusetts Worker’s Compensation Lawyer Blog, February 18, 2016

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