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

The Massachusetts Department of Industrial Accidents Reviewing Board reversed an award of § 34A permanent and total incapacity benefits granted by an administrative law judge because the injured employee did not present credible evidence of the need for an award of these benefits.  Instead, in this decision, the Board granted the employee § 35 benefits for partial incapacity.

In this case, a 54-year-old food service worker with over 20 years of experience in the industry claimed that she suffered injuries to her neck and shoulder while working as a chef.  Following her injury, her employer accepted liability for her harm, and the employee underwent two surgeries.  More than two years later, her employer moved to discontinue her workers’ compensation benefits payments.

After a conference before an administrative law judge, the employer’s request for denial of payments was not granted.  In this proceeding, the employee joined a § 34A claim.  She did not make a claim for further surgery, although she stated she was waiting for an MRI to discuss surgery.  The judge ordered both sides to further explore whether surgery was necessary.

The employee then moved to join the issue of medical treatment in the proceedings. The judge denied this motion but reopened the record so that the parties could add medical evidence.  A neutral § 11A physician provided testimony in the case after examining the injured employee. The employer offered medical evidence, but the injured worker did not present any further medical evidence.

The judge stated that there would not be judicial economy in adding the new issue of surgery so late in the proceedings and denied the motion.  The judge adopted the neutral examiner’s opinion that the work injury was a major cause of the ongoing disability and the employee’s need for treatment.

Based on the employee’s complaints of chronic pain in her shoulder and neck, as well as her age, education, training, and experience, and other factors, the judge deemed the employee partially disabled and capable of part-time employment up until the date she stated she was exploring the option of further surgery.  Explaining that no employer would hire an individual who needed time off in the near future, the judge stated the employee was eligible for § 34A benefits beginning  the day after the hearing ( and § 35 benefits prior the hearing). The judge did not determine the issue of whether the surgery was reasonable and necessary.

On appeal to the Board, the employer argued that the award of § 34A benefits was “arbitrary and capricious” because it was based on the employee’s hope that she would undergo surgery.  The employer argued that the employee had not in fact changed her incapacity status.

The Board stated that the evidence must uphold a finding of an employee’s incapacity.  Furthermore, a change in benefits must be based on a change in the employee’s medical or vocational condition.  Here, the judge based the finding that the employee’s incapacity status changed on the employee’s need and hope for surgery.

According to the Board, the problem with using “possible surgery” as a foundation for a § 34A award was that surgery was not at issue in the hearing.  The judge had not considered medical evidence that the surgery was reasonable and causally related to the employee’s work injury.  The judge had only found the employee was exploring the option of surgery.  The Board stated that the judge could not rule the issue of surgery was not part of the employee’s claim and then award benefits based on this “hoped-for” surgery.

Speculation as to if and when the surgery would take place made the award of benefits on an unperformed surgery speculative.  In conclusion, the judge found the employee permanently and totally incapacitated following an unperformed (and unscheduled) surgery. This was conjecture, and there was no basis to support a change in the employee’s condition from partial to permanent and total incapacity.

The Board reversed the award of § 34A benefits and modified it to order payment of § 35 benefits.

If you or a loved one has suffered injuries while working on a job site, you may be entitled to receive compensation for your injuries and lost wages. The skilled Massachusetts attorneys at Pulgini & Norton offer legal representation for injured clients pursuing workers’ compensation benefits. To discuss your claim with one of our dedicated attorneys, contact our office at (781) 843-2200 or online and schedule a no-obligation consultation.

More Blog Posts:

Massachusetts Appeals Court Rules Against Injured Worker, Discontinues Temporary Total Incapacity Benefits, Massachusetts Workers’ Compensation Lawyer Blog, July 29, 2015

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

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