Potential Future Surgery Insufficient Basis for Change in Massachusetts Workers’ Compensation Benefits

In a decision by the Reviewing Board of the Department of Industrial Accidents, an administrative judge’s modification of workers’ compensation benefits from partial to permanent and total incapacity was found to be unsupported by evidence of a change in the employee’s condition. The Board reversed the administrative judge’s order, due to the fact that the administrative judge’s decision was based largely on the speculative and possible need of the employee to undergo surgery sometime in the future.

The employee had injured her left shoulder and neck while working as a chef in 2010. Her employer’s insurer accepted liability for the injury, and the employee underwent surgeries for her neck and shoulder. In 2013, the insurer filed a complaint to modify or discontinue benefits, which was joined with the the employee’s claim for benefits under § 34A for permanent and total incapacity, or in the alternative, partial benefits under § 35. At a hearing in front of the administrative judge, the employee testified that she was awaiting the results of an MRI to discuss additional surgery. The judge adopted the opinion of the § 11A medical examiner that the employee’s work injury was the cause of her ongoing disability and need for treatment, and found the employee’s testimony regarding her injuries credible. Based on this evidence, the judge found that the employee was partially disabled and capable of part-time minimum wage employment up to the date of the hearing.

However, the judge also found that the future surgery contemplated by the employee would render her unemployable in the labor market, since no one would be willing to hire someone who would need substantial time off soon after beginning employment to recover from the surgery. Based on that finding, the judge awarded the employee § 34A benefits beginning on the date of the hearing. The judge left the question of whether the surgery was reasonable and necessary under § 30 for another claim. The insurer appealed the decision to the Board, arguing that the award of § 34A benefits was arbitrary and capricious.

On appeal, the Board noted that the judge’s award of § 34A benefits rested entirely on the employee’s testimony that her doctor and she believed she needed surgery. The Board found that it was inherently inconsistent for the judge to award § 34A benefits based on a future, hoped-for surgery while not considering or adopting any medical evidence that the potential surgery was reasonable and causally related to the employee’s work injury. In addition, basing the determination of incapacity on vocational factors, including that the employee would need time off due to possible surgery, without hearing the § 30 issue, was speculative. As a result, the Board reversed the award of § 34A benefits, finding that there was no showing of a change in the employee’s condition to warrant a determination of permanent and total incapacity.

Workers’ compensation provides benefits for qualified workers who have been injured on the job, including payment of medical expenses and lost wages. At the Massachusetts firm of Pulgini & Norton, our dedicated workplace accident attorneys represent and advise clients pursuing workers’ compensation benefits. To discuss your claim with one of our knowledgeable attorneys, contact our office at (781) 843-2200 or online to schedule a 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 Denies Employee Total Incapacity Benefits in Workers’ Compensation Case, Massachusetts Workers’ Compensation Lawyer Blog, published August 26, 2015

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