Massachusetts Employee Awarded Partial Incapacity Benefits in Worker’s Compensation Appeal

The Massachusetts Department of Industrial Accidents reviewed a decision of an administrative judge regarding an employee’s workers’ compensation benefits in Antonia Miranda v. Huntington Hotel Corporation. On March 6, 2010, the employee suffered a back injury when lifting trash while working at her job as a housekeeper. The employee underwent two back surgeries as a result of the injury. The employer’s insurer paid § 34 total incapacity benefits to the employee until April 10, 2013, when compensation was exhausted pursuant to the 156-week period specified in the statute. The employee subsequently filed another claim for § 34 total incapacity benefits from April 11, 2013 forward, the subject of the appeal.

Prior to the hearing, the employee was examined by an independent medical examiner pursuant to § 11A. His report was submitted into evidence, and neither party submitted any additional medical evidence. The insurer, however, produced witness testimony from an investigator it had retained at the hearing, and it submitted the investigator’s report of his surveillance of the employee into evidence. The report stated that the investigator observed the employee over a four-and-a-half-hour period, during which time she made a trip to the bank and then walked through the mall with three other women while shopping. The judge ultimately adopted the opinion of the independent medical examiner, which found that the employee was unable to return to housekeeping work but could perform light duty work involving sitting, standing, or walking for up to four hours. The administrative judge therefore concluded that the employee had an earning capacity and awarded § 35 benefits from December 4, 2013 and continuing. Both the employee and the employer’s insurer appealed.

The employee argued on appeal that the judge mischaracterized the opinion of the independent medical examiner regarding her ability to sit, stand, or walk for up to four hours. The Reviewing Board disagreed, concluding that the administrative judge’s interpretation of the medical opinion was reasonable. The Board pointed to the testimony of the independent medical examiner, in which he stated that he did not think it unreasonable for the employee to perform lighter work as a cashier for 20 hours a week. The Board also noted that the judge had discretion to assess the credibility of the employee’s testimony that her pain prevented her from working, as well as to adopt the opinion of the independent medical examiner. The Board therefore affirmed the judge’s decision that the employee was only partially incapacitated as of December 4, 2013.

The Reviewing Board agreed with the employee’s argument that the judge erred in failing to articulate the amount of the employee’s earning capacity and the basis for it, and in failing to address the period claimed between April 11, 2013 and December 4, 2013. The Board recommitted the case for further findings on those issues.

If you have suffered a work-related injury, you may be entitled to coverage for your medical treatment and expenses and lost wages under the Massachusetts Workers’ Compensation Act. At Pulgini & Norton, our personal injury attorneys have years of experience representing individuals who are 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 through our website and schedule a free consultation.

More Blog Posts:

Massachusetts Appeals Court Finds for Worker Claiming Partial Incapacity Benefits, Massachusetts Workers’ Compensation Lawyer Blog, published August 12, 2015

Massachusetts Appeals Court Rules Injured Employee Failed to Establish Partial Incapacity, Massachusetts Workers’ Compensation Lawyer Blog, published January 13, 2016

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