Massachusetts Reviewing Board Considers Employee’s Appeal for Total Incapacity Benefits

In some cases, workers’ compensation appeals are not resolved by the Massachusetts Reviewing Board of Industrial Accidents and must be recommitted to the administrative judge for further findings of fact. In a recent opinion, the Reviewing Board was faced with just such an appeal in the matter of William Herrera v. Mediate Management, Inc. In April 2010, the employee was working as a building janitor when he sustained a work-related injury to his right knee. The employer’s insurer accepted liability for the injury and paid § 34 total incapacity benefits for three years. Once the employee’s § 34 benefits were exhausted, the insurer paid partial incapacity benefits under § 35. The employee subsequently filed a claim seeking payment of § 34A benefits.

At the hearing, the administrative judge found that the medical issues were complex, and the parties were allowed to submit additional medical evidence. The employee was also examined by an independent medical examiner pursuant to § 11A. The judge denied the employee’s § 34A claim, finding that the employee was partially disabled and possessed a part-time minimum wage earning capacity. The employee then appealed the judge’s decision to the Reviewing Board.

On appeal, the Reviewing Board could not determine from the judge’s findings whether the employee sustained a combination injury, or whether he had two separate conditions that did not combine with each other. Since the insurer raised § 1(7A) as a defense, the Board found that the parties were entitled to findings addressing whether it applies. As a result, the Board remanded the issue for the judge to perform the analysis required by Vieira v. D’Agostino Assocs.

The employee also argued that the judge erred by failing to conduct a meaningful review of the employee’s vocational factors. Although the judge acknowledged the education, work history, skills, and literacy of the employee, the judge did not make findings addressing the vocational factors articulated in Scheffler’s Case and Frennier’s Case. The Board recommitted the matter and stated that the judge should make findings regarding how these factors influenced his appraisal of the effect of the injury on the employee’s earning capacity in order to support the judge’s ultimate conclusion regarding any benefits award. In sum, the Board recommitted the matter for further findings of fact addressing the § 1(7A) defense and providing additional findings regarding the employee’s disability and the extent of his incapacity. The Reviewing Board, however, did not disturb the award of partial incapacity benefits to the employee.

Many people who have been injured in work-related accidents are entitled to coverage for their medical treatment and expenses, as well as lost wages, under the Massachusetts Workers’ Compensation Act. At the Massachusetts firm of Pulgini & Norton, our hardworking injury attorneys are committed to helping individuals pursue workers’ compensation benefits in Massachusetts. To discuss your benefits claim with one of our experienced attorneys, contact our office at (781) 843-2200 or online 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 Reviewing Board Affirms Award of Workers’ Compensation Benefits, Including Handicapped Housing, Massachusetts Workers’ Compensation Lawyer Blog, published November 2, 2015










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