Reviewing Board Holds Nurse Assistant’s Previous Work-Related Injuries Combined with Industrial Incident in Massachusetts to Support Award of § 34 Benefits

The Massachusetts Department of Industrial Accidents, Reviewing Board, recently issued a decision in an appeal addressing whether an injured certified nurse’s assistant’s work-related injuries were due to an industrial accident or the result of previous injuries.  The employer’s workers’ compensation insurer argued that an incident at work, the incident at issue, did not cause her disability or need for treatment.  But the Board stated that when a prior condition combines with an industrial accident, the employee need not prove “a major cause” of the disability if that prior condition was work-related.

Cheryl Briere worked as a certified nurse’s assistant from 1972 to 2011. Over the years, she suffered injuries, some of which were work-related. In 1994, she hurt her back lifting a 350-pound man into a vehicle. She received workers’ compensation benefits for it. In 1998, she hurt her back and neck in a vehicle collision, but she did not lose time from work.

In 1991, Ms. Briere began working for Lowell General Hospital. On unspecified dates, with injury reports for some dates, she injured her back and hips. In 2004, she sought medical treatment after being involved in another car accident.  She was then treated for hip and back pain in 2005, as well as neck and back pain in 2008.

On December 4, 2011, Ms. Briere was helping her co-workers lift a 400-pound patient when she injured her hands, neck, and back.  Although she finished her shift and returned to work on the following day, two days later she sought a leave of absence from her job. She expressed her pain and stated that the lifting injury made it impossible for her to perform her job. She left work and did not return.

Ms. Briere filed a claim for §§ 34, 14, and 30 benefits from December 6, 2011 forward. The workers’ compensation insurer filed a denial of the claim, raising defenses of disability, liability, causal relationship, and applicability of § 1(7A).  The judge then had a conference and issued an order for payment of § 34 benefits, from December 6, 2011 forward.

The insurer appealed, and at the hearing, the judge found the lifting incident on December 6, 2011 was a major cause of Ms. Briere’s disability, so he awarded § 34A benefits. The insurer appealed.

First, the Board stated that the judge erred in awarding the employee § 34A benefits, retroactive to her date of injury, when the employee never claimed these benefits.  At Ms. Briere’s hearing memorandum, she sought § 34 benefits from the date of injury forward.  The Board stated she did not claim entitlement to § 34A benefits.

The rule, according to the Board, is that a judge must decide the issues before him but not stray from the dispute between the parties. In this case, when there was no claim before the jury for § 34A benefits, the issue was not raised, and it was an error for the judge to award these benefits. The Board vacated the award of § 34A benefits.

However, the Board stated the evidence was sufficient to find that Ms. Briere was in fact totally disabled due to the December 4, 2011 incident. For this reason, the Board amended the decision and ordered that § 34 benefits should be awarded in a weekly amount of $355.23, based on her wage of $529.85, from December 4, 2011 forward.

The insurer also contended the judge erred in improperly discounting its § 1(7)A defense and in mischaracterizing the medical evidence to conclude that the 2011 industrial accident was a major cause of her total disability.  The insurer sought to deny and dismiss Ms. Briere’s claim, arguing that she did not present medical opinion evidence that met her burden of proof under § 1(7A).  At the hearing, the insurer argued they met their burden of showing a combination injury, based on the impartial physician’s identification of non-work-related pre-existing medical issues.

The Board stated the insurer’s argument failed because when there is a combination of a prior condition and an industrial accident, the employee is not subject to the higher burden of proving “a major cause” when the prior condition is work-related. In this case, the judge had adopted the medical opinions that the employee’s pre-existing issues, including anxiety, sleep issues, and orthopedic issues, were a result of her work as a certified nurse’s assistant.  These issues caused her upper extremity and lumbar issues, which then led to her disability.  As a result, Ms. Briere was not required to meet the enhanced burden of proof set forth in  § 1(7A).

The Board vacated the award of § 34A benefits, awarding § 34 benefits instead in the amount of $355.23 per week, from December 5, 2011 forward.

The Massachusetts attorneys at Pulgini & Norton offer competent, efficient legal representation to injured clients pursuing workers’ compensation benefits.  If you or a loved one suffered injuries while working on a job site, you may be entitled to receive compensation for your lost wages and injuries.  Contact our office at (781) 843-2200 or online to discuss your claim with one of our hardworking attorneys. We provide a complimentary consultation.

More Blog Posts:

Reviewing Board Holds Judge Gave Inconsistent Findings in Judgment Denying Massachusetts Employee Medical Benefits and Dental Care, Massachusetts Worker’s Compensation Lawyer Blog, October 5, 2016

Massachusetts Reviewing Board Holds Employee Has Right to Compensation, Even When Employer Files for Bankruptcy, Massachusetts Worker’s Compensation Lawyer Blog, July 7, 2016

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