Massachusetts Reviewing Board Upholds Judge’s Determination that Employee was Permanently and Totally Disabled and Suitable for Vocational Rehabilitation

At issue in a recent appeal before the Massachusetts Department of Industrial Accidents Reviewing Board was whether an employee was entitled to benefits for being partially and totally disabled while undergoing vocational rehabilitation training. The workers’ compensation insurer in this case appealed a decision that denied its complaint to modify or discontinue the employee’s section 34 benefits. The insurer had been ordered to continue paying those benefits until their statutory exhaustion and then pay section 34A benefits.

In analyzing the judge’s decision, the Board assessed the policy of vocational retraining.  The Board, citing Massachusetts law, made clear that vocational rehabilitation serves the purpose of working to return injured employees to jobs that pay “as near as possible” to their pre-injury wage. In order to serve this purpose, the Department should encourage and facilitate agreements between injured employees and insurers to use vocational rehabilitation services so that employees can return to suitable employment.

The injured employee in this case was 38 years old and worked as a union pipefitter for approximately 40-48 hours a week, earning average weekly wages of $1,988.38. He had earned a GED and a Master Pipefitter license, as well as a Master Process Pipefitter license. He had been employed as a pipefitter for years, eventually becoming a foreman pipefitter in 2010.

In September of 2012, the employee suffered a work injury to his left shoulder. He continued to work in pain, although he did report the injury and began medical treatment. In June 2013, the insurance company began paying section 34 benefits to the employee. He underwent two surgeries and a work hardening, performed in May 2015.

The insurer moved to modify or discontinue the employee’s weekly benefits, and a conference took place before a judge in July 2015. The judge issued an order denying the insurer’s complaint, and the insurer appealed.

The employee then underwent an examination under section 11A(2) by an orthopedic surgeon. The Department of Industrial Accidents Office of Education and Vocational Rehabilitation (OEVR) determined that the employee was suited for vocational rehabilitation services.

According to Massachusetts law, the employee received an “Individual Written Rehabilitation Plan.” The judge found that the employee was totally and permanently disabled, according to case law. He relied on the findings of the vocational case manager and medical opinions. The judge also found that the employee earned nearly $2,000 a week in his prior job and that if the employee were ordered to return to a light or sedentary position, he would be “condemn[ed]” to a 25-year career in unskilled menial labor, after earning high wages as a union tradesman. The judge also noted that the impartial doctor had not found a light or sedentary work capacity. In conclusion, the judge ordered that section 34A benefits begin when section 34 benefits expired.

On appeal, the insurer argued that the decision must be reversed because the evidence did not support the conclusion that the employee was permanently and totally disabled.

The Board rejected the insurer’s claims, stating that the judge had found that the employee could not perform part-time work due to the intense schedule his vocational rehabilitation requires. The question, the Board stated, was whether the employee could spend 40 hours in a vocational rehabilitation program and still earn wages. Here, the Board stated, the judge found the employee could not both work and participate in the vocational rehabilitation program. If the judge had granted the insurer’s request, it would have been the equivalent of forcing the employee to retrain for the limited goal of returning to a full-time minimum wage position. The Board stated that this runs contrary to the Workers’ Compensation Act.

The Board noted that OEVR determines what a proper vocational rehabilitation is and whether it is suited for an employee. In this matter, the employee’s rehabilitation plan would remain effective regardless of the outcome of the case. Additionally, when employees refuse to participate in vocational rehabilitation after they are found suitable for those benefits, they will have a 15 percent reduction in their weekly compensation benefits.

Finally, the Board stated that simply because an employee is deemed suitable for vocational rehabilitation and is willing to attempt it does not mean that the employee is ineligible for workers’ compensation benefits. This eligibility does not serve as a basis for decreasing their entitlement to benefits.

The Board also made clear that the purpose of vocational rehabilitation is to return injured employees to work in jobs that pay near their pre-injury wages. According to the Board, the facts indicated that the employee was not capable of substantial gainful employment without receiving retraining. The judge had expressly stated that the employee’s vocational rehabilitation case manager stated that the employee was totally and permanently disabled. The Board held the judge’s findings that the employee was permanently and totally incapacitated were not in error.

The Board affirmed the judge’s decision.

At Pulgini & Norton, our Massachusetts attorneys offer personalized legal representation to injured people pursuing workers’ compensation benefits.  If you or someone close to you suffered workplace injuries, you may be entitled to receive compensation for your lost wages and injuries.  Contact our office at (781) 843-2200 for a free consultation or complete our online form.

More Blog Posts:

Massachusetts Reviewing Board Awards § 34 Benefits Based on Medical Record Showing that Disability Extended Beyond Exhaustion of § 35 Benefits,Massachusetts Worker’s Compensation Lawyer Blog,  October 27, 2016

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