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Massachusetts Workers’ Compensation Reviewing Board Reverses Award for Back Surgery

Pre-existing conditions can complicate an award of workers’ compensation benefits. In the event a pre-existing condition occurs, General Laws c. 152, § 1(7A) only requires the new injury to be compensable if the work injury was a major but not necessarily predominant cause of the disability. A recent case (Bd. No. 10832-12) addresses what must be shown when an employee who suffered a back injury had a pre-existing condition related to a prior back injury.

The employee’s medical history began in 1991 following an injury while working at a grocery store.Resting Gavel In 1992, the employee had surgery to relieve pressure on his spinal cord, formally known as a laminectomy. In the following year, the employee worked for a different company, performing various jobs until he was laid off in 2009. The employee was re-hired in 2011 to work on a large order using a “4-slide” machine. During this period, the employee could not pinpoint a back injury from a specific incident, but he claimed that an injury occurred while he performed repetitive work for this employer, lifting and carrying items.

At an early hearing, the judge ordered temporary total incapacity benefits but did not order the insurer to pay for the back surgery. The conference order was appealed by both parties, and the employee was seen by an impartial medical examiner. This evaluation was the only medical evidence submitted. The judge determined at the hearing that the employee sustained an injury between August 2011 and March 2012, and the injury sustained by the current employment, combined with the pre-existing injury, caused or prolonged treatment and disability. The judge found that the injury was a major but not necessarily predominant cause of the injury and ordered the payment of temporary and permanent total incapacitation benefits. The judge also ordered the payment of medical expenses, including those for the employee’s back surgery in 2013.

The insurer appealed, arguing that the injured employee failed to meet his heightened burden of proof under General Laws c. 152, § 1(7A). The Reviewing Board agreed, looking at evidence of the duties performed by the injured employee. The injured employee reported to the examining physician that he lifted 35-70 pounds between four and five hundred times a day. The judge made a finding of fact that while that did occur, it was much less than the claim to the doctor. The insurer argued in its appeal that the judge based the award of benefits on the impartial physician’s findings, which were acknowledged to be based on problematic information. The Board agreed with the insurer, recommitting the case to the judge for specific findings on this specific issue. However, it did not feel the incomplete findings were fatal to the claim. The Board did ultimately rule that the payments for the back surgery should be reversed in the absence of a medical opinion linking the causation of the work injury to the need for back surgery.

The Massachusetts workers’ compensation attorneys at Karsner & Meehan are here to help you with your claim. Call today for a free, confidential consultation at 508-822-6600.

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