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Massachusetts Workers’ Compensation Reviewing Board Replaces Injured Nurse’s Permanent Total Disability Benefits with Temporary Total Disability Benefits

When you work at a physically intensive workplace for a long time, minor to moderate individual injuries that occur over several years can become a sustained injury. A recent Reviewing Board Decision, Breire v. Lowell General Hospital (BOARD NO. 036471-11), highlights considerations made by deciding authorities in Massachusetts’ workers’ compensation system. In this case, the injured employee worked for nearly 40 years as a certified nurse’s assistant (CNA). Throughout this time, she incurred several injuries, some from the workplace and some from her personal life.  Nurse shotThose of note included a workplace injury in which she hurt her back lifting a 350-pound man into a car, as well as car accidents outside work in which she hurt her back and neck. The injured CNA also sustained multiple injuries while working for the employer in this case, hurting her back, hip, and neck on different occasions over 10 years.

The injury that led to this litigated claim occurred when she helped her co-workers lift a 400-pound patient. The CNA suffered hand, neck, and back injuries. On the date of the injuries, she finished her shift, and she returned to work the next day but eventually sought a leave of absence from her job. The injured worker advised her employer that she could no longer perform her duties, due to the combination of injuries suffered. The employee sought temporary total disability benefits, among others. The insurer filed a denial, arguing that the injury suffered was not a workplace injury. After a conference and a hearing, the Administrative Law Judge (ALJ) awarded the injured CNA § 34A (total permanent disability benefits), finding that the last injury was the major cause of her disability.

The insurer appealed, pointing out that the injured woman did not seek permanent total disability benefits. The Reviewing Board agreed with the insurer, pointing to a prior decision that stated that the ALJ should not stray from the parameters of the dispute between the parties. (See Burgos v. Superior Abatement, Inc., 14 Mass. Workers’ Comp. Rep. 183, 185 (2000).) Since the injured CNA only sought temporary benefits, the award of total disability was vacated. However, the board noted that there was sufficient evidence to find that the CNA was totally disabled due to the last injury. While the benefits were § 34 temporary disability, the board awarded the $355.23 per week, based off her average weekly wage, until exhaustion. The Board declined to vacate all of the awards. It did not agree with the insurer’s argument that the injured CNA was required to show the last accident was a “major cause” of her injury. The Board pointed to § 1(7A) of the Workers’ Compensation Act, which states that the injured person does not have to meet this heightened requirement when the prior condition was also work-related. The Board agreed with the ALJ, who adopted the opinions of the physicians who concluded that anxiety, sleep issues, and neck, back, and hand pain were causally related to the work performed as a CNA.

The Massachusetts workers’ compensation attorneys at Karsner & Meehan have the experience you need to push back against insurers’ defenses. Our office understands every penny helps when recovering from a workplace injury, and we will fight to maximize every benefit available. For a free, confidential consultation, contact our office at 508.822.6600.

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Rear-end Collision Appellate Case Helps Illustrate Burden of Proof Considerations in Massachusetts Personal Injury Cases, Massachusetts Injury Lawyers Blog, February 3, 2016