The Massachusetts Reviewing Board of of Industrial Accidents recently reviewed a decision involving a judge’s allegedly harmful reliance upon medical opinions to modify a workers’ compensation award. Modification benefits must be grounded in evidence showing that the employee’s medical or vocational status changed. In this case, the employee appealed a judge’s order that found he was not in active treatment for a hurt left shoulder, and he was not totally incapacitated. The Board reviewed the evidence and found that, in fact, the judge’s reliance had been in error, and the decision must be vacated.
The employee in this case worked as a foreman or “job boss” for large construction projects. In October 2013, he suffered injuries when he was hit by a truck on a construction site. He fell into a trench and landed on PVC piping, injuring his left minor shoulder, left ribs, and face.
The insurer for the construction company paid the employee section 34 temporary total incapacity benefits from the date of the injury to September 26, 2014, when weekly benefits were modified to maximum partial incapacity benefits.
The employee then filed the present claim, seeking section 34 benefits from the date the insurer modified his benefits forward. A conference was held under section 10A, 13 days after the employee underwent a second shoulder surgery (on February 12, 2015). The judge held the insurer must pay section 34 benefits. The insurer appealed.
Next, on June 19, 2015, the employee underwent an exam by an orthopedic surgeon, according to section 11A(2). The judge noted that the medical issues were complex, due to the close proximity of the employee’s surgery to the impartial examination date. The parties submitted additional medical evidence for the period following the employee’s February 12, 2015 surgery.
The Board stated the rule that as of the date of the modified workers’ compensation benefits, the evidence must show a change in an employee’s medical or vocational status. Here, the employee argued that the modification order tied to the June 20, 2015 date was not grounded in evidence in the record, and it should not stand. The employee alleged that the judge’s findings were not harmless because they factored into his decision to modify his benefits (to terminate his total incapacity benefits).
The employee also claimed that, in fact, the examining doctor in June 2015 had stated the employee was totally disabled from regular work. Later, in September, another physician noted the physical restrictions that formed the basis of the judge’s modification order.
Noting the judge’s errors, the Board stated that they were unable to determine whether the correct rules of law had been applied. They vacated the judge’s order that modified benefits as of June 19, 2015. They recommitted the matter for further findings.
The Massachusetts attorneys at Pulgini & Norton provide legal representation to individuals pursuing workers’ compensation benefits. If you or a loved one suffered injuries while working, you may be entitled to receive compensation for your lost wages and medical costs. Contact our office at (781) 843-2200 or online to discuss your claim with one of our hardworking attorneys. We provide a no-obligation, complimentary consultation.
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
Reviewing Board Holds Nurse Assistant’s Previous Work-Related Injuries Combined with Industrial Incident in Massachusetts to Support Award of § 34 Benefits, Massachusetts Worker’s Compensation Lawyer Blog, October 20, 2016