Hasbro Employee Injured on Assembly Line Receives Benefits
When a self-insured employer appeals a decision awarding workers’ compensation benefits to one of its employees, it must at least raise its objections at the original hearing or risk losing the option on appeal. In the case at Board No. 007702-09, Hasbro, Inc., a national toy manufacturing company with a Massachusetts factory, lost a decision by the Reviewing Board of the Massachusetts Department of Industrial Accidents, at least partly because it failed to raise an objection at the hearing and tried to bring it up for the first time on appeal.
The employee, Maria Kiaresh, was a 57-year-old Italian immigrant who had come to the U.S. at age 13. She had no high school education and could not read or speak English. Her participation in her case required an interpreter. On May 17, 2005, while performing repetitive work on an assembly line at Hasbro’s Massachusetts factory, she felt pain in her right shoulder while “flattening bags of game chips to put into boxes. . . .” She received treatment from the company nurse and physician. In 2008, she underwent neck surgery, and in 2010, surgery on her right shoulder. Hasbro had laid her off in 2008 “due to her work restrictions from her industrial injury in 2005.” Hasbro accepted her claim and began paying her weekly benefits.
Hasbro Moves to Discontinue Benefits
On June 23, 2011, Hasbro filed a complaint to discontinue or modify the employee’s benefits. The employee moved to join her claim for § 34A benefits, which was allowed. In a conference order dated February 16, 2012, the judge denied Hasbro’s complaint but did not address the employee’s claim. Both parties appealed, but Hasbro withdrew its appeal, leaving only the employee’s § 34A claim to be adjudicated at hearing.
On April 18, 2012, pursuant to § 11A, the employee was examined by Dr. Alan Bullock, with assistance from an interpreter. Dr. Bullock’s May 3, 2012 report of that examination was admitted into evidence at the October 24, 2012 hearing. At the hearing, Hasbro denied only the employee’s disability and the extent of her incapacity, but not the causal relationship between her injuries and her work. The employee testified about the repetitive nature of her work, the May 17, 2005 accident, her surgeries, and her symptoms and limitations related to her right shoulder, arm, and hand. She also testified that her pain medication made her drowsy.
The judge framed the issues at hearing:
Judge: The insurer is denying disability and the extent of incapacity. Is that a complete recitation of the issues on both sides this morning?
Ms. McCarthy: Yes, your Honor.
Accordingly, the employee had the burden of proof only on the issues of disability and the extent of her incapacity.
Following Dr. Bullock’s deposition, Hasbro filed a motion, opposed by the employee, requesting leave to introduce additional medical evidence. In its motion, Hasbro argued that Dr. Bullock’s opinion was “inadequate as to the issues of causal relationship, on-going disability and major cause.” In response to Hasbro’s motion, the employee argued, “[t]here is no dispute that the Employee suffered neck and shoulder injuries in the industrial accident in question. Furthermore, causal relationship and § 1(7A) are not in issue.”
Judge Denies Hasbro’s Motion
The parties agree that on January 14, 2013, they argued the motion before the judge. The hearing decision indicates the judge denied the motion that day, finding the employee to be credible regarding her pain, her limitations, and the soporific effect of her pain medications. The judge also adopted Dr. Bullock’s opinion that the employee was permanently partially disabled, restricted from repetitive work involving the neck and shoulder, and thus restricted from lifting in excess of 10 pounds. These findings, combined with the judge’s consideration of the repetitive nature of the employee’s work and the employee’s age, lack of education, and poor English, led her to conclude the employee was permanently and totally incapacitated. Hasbro appealed.
Hasbro Loses Appeal
On appeal, Hasbro argued that, since the employee’s testimony at hearing did not square with the history of her injury as described to Dr. Bullock, the judge erred by adopting Dr. Bullock’s opinion on causation. The Reviewing Board noted that the judge did credit the employee’s testimony regarding the repetitive nature of her work and her report of the incident at work in May 2005. The Reviewing Board also found that Hasbro had initially accepted the employee’s claim, and therefore the causal relationship between her work and the injuries to her neck and shoulder was established. This fact, combined with Hasbro’s failure to raise the issue of ongoing causal relationship at the hearing, constituted a waiver of Hasbro’s right to argue this issue on appeal. Therefore, the Reviewing Board denied Hasbro’s appeal from the decision awarding the employee permanent and total incapacity benefits from April 17, 2012, to date and continuing, and the Reviewing Board affirmed the decision awarding benefits.
If you have become ill or been injured at work, contact a Boston workers’ compensation attorney at Pulgini & Norton to schedule a free consultation to find out more about what our lawyers can accomplish for you. Contact us with a brief description of your situation or reach us by phone at our Downtown Boston, Hyde Park, or Braintree, Massachusetts office locations.
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