Massachusetts Reviewing Board Applies Successive Insurance Rule, Finding Coverage for Employee’s Ongoing Work-Related Injuries

The Massachusetts Department of Industrial Accidents, Reviewing Board, recently analyzed a case involving two insurance companies and an employee’s claim of a repetitive injury to his shoulder. The second insurance company, Federal Insurance Company, argued that the judge had erred when he transformed the employee’s allegation from one alleging a single event in 2012 into a claim of a repetitive, ongoing aggravation of a shoulder condition. They also contended they should not be found liable for the injury under the successive insurer rule.

In this case, Kenneth Linton was a long-term employee of G.P.C. International/Chartpak, Inc.  Beginning in 1996, he worked as a paper processor and machine operator in the employer’s California plant. Then, Mr. Linton transferred to the Leeds, Massachusetts plant, where he continued to perform the same job duties.

The fast-paced, repetitive, and heavy work required frequently lifting 75 to over 100 pounds.  In around 2003, Mr. Linton first experienced pain in his right arm, and he sought treatment while receiving physical therapy, which was paid for by his own health insurance.

In 2010, Mr. Linton sought medical treatment for his shoulder, which was “messed up” after a difficult work day. During a two-month absence from work due to the condition, Mr. Linton received weekly workers’ compensation benefits from the Insurance Company of the State of Pennsylvania. He then returned to full-duty work.

In 2012, Mr. Linton was allegedly knocked to the ground by a 75-pound box that fell on his right shoulder. He began medical treatment and felt that his shoulder was worse after the incident. Federal paid for Mr. Linton’s four weeks of physical therapy.

In 2014, Mr. Linton filed a claim against both insurance companies, seeking payment for his medical benefits and his cortisone injections. Following a section 10A conference, Federal was ordered to pay for the treatment. Federal appealed, and the employee underwent an examination by an orthopedic surgeon. The surgeon reported that the 2012 injury did not appear to have an impact on Mr. Linton’s impairment.

The judge had concluded that after the 2012 injury, Mr. Linton’s pain intensity increased. His shoulder felt worse after the incident and was constantly agitated at work. He adopted the surgeon’s opinion that the shoulder condition was a “continuum,” having occurred over a long period of time while working. The judge also found credible the surgeon’s opinion that injections into the shoulder were a reasonable and effective treatment.

In his analysis, the judge found that the employee’s complaints were credible, and his condition was aggravated daily. The judge also stated it was impossible to clearly identify a specific date of the accident.

On appeal, Federal contended that the judge should not have inquired into the scope of insurance coverage without letting the parties know he would convert the claim to one alleging a continuing injury claim under the successive insurer rule.  Federal claimed it was deprived of an opportunity to put forth evidence because it was not aware the judge was going to apply the successive insurer rule.

The Board stated that the record showed that counsel for Mr. Linton and the first insurer brought out the employee’s testimony implicating the successive insurer rule.  The Board stated that the record showed Mr. Linton testified that in 2010, his right shoulder was messed up from lifting and working hard, and then the surgeon limited the scope of the impact of the September 2012 incident. Additionally, Mr. Linton testified that he continued to suffer ongoing work problems. For these reasons, the Board stated, the judge was within his statutory authority to inquire as to the parties’ insurance coverage.

The Board also stated that counsel for Federal had not objected to the judge’s inquiry or questions concerning coverage.

In conclusion, the Board stated it had not been an error for the judge to apply the successive insurer rule, requiring Federal to pay for Mr. Linton’s treatment.  The Board stated the rule that determining whether an employee has suffered an aggravation of a prior injury or a recurrence of symptoms is a factual question.  Here, medical evidence supported the judge’s findings. The Board affirmed the judge’s decision requiring Federal to pay Mr. Linton’s counsel a fee.

The Massachusetts attorneys at Pulgini & Norton offer experienced legal representation to injured clients pursuing workers’ compensation benefits.  If you or a loved one was hurt while working on a job site, you may be entitled to receive compensation for your lost wages and injuries.  Call our office at (781) 843-2200 or fill out our online form to discuss your claim with one of our hardworking attorneys. We provide a complimentary consultation.

More Blog Posts:

Reviewing Board Holds Nurse Assistant’s Previous Work-Related Injuries Combined with Industrial Incident in Massachusetts to Support Award of § 34 Benefits, Massachusetts Workers’ Compensation Lawyer Blog, October 20, 2016

Massachusetts Reviewing Board Holds Employee Has Right to Compensation, Even When Employer Files for Bankruptcy, Massachusetts Worker’s Compensation Lawyer Blog, July 7, 2016

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