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Massachusetts Workers’ Compensation Reviewing Board Reverses Decision and Orders Permanent and Total Incapacity Benefits for Injured Person

Obtaining all of the workers’ compensation benefits you are entitled to receive can be a long, arduous journey. This is seen in a recent Reviewing Board case in which an employee sustained work-related emotional injuries from a series of encounters with management in a three-year period. The employee was previously awarded temporary and total incapacity benefits and managed to keep the awarded benefits after the employer appealed the award.Fall hike The prior administrative judge found the work-related events were the major and predominant cause of the worker’s injury, disability, and need for treatment and exacerbated her PTSD from childhood occurrences.

During the appeal of the temporary benefits, the worker filed for permanent and total incapacity benefits to begin when the period for temporary benefits ended. The same administrative judge heard and awarded the permanent and total benefits to begin on May 13, 2012 and end on December 13, 2013. Both parties appealed. The judge heard the testimony of three lay witnesses but did not hear the medical deposition of the independent medical examiner (IME). The judge left the department, and the case was reassigned to a different judge. The parties agreed the judge could use the transcript of the last hearing in making her decision, but the injured person would testify again so that the judge could assess her credibility.

The IME re-examined the injured employee prior to the worker’s testimony before either judge and issued a report. The first judge found the report was adequate, and the medical issues were simple enough to avoid opening the medical record. Medical evidence was permitted, however, to provide proof between the date the permanent benefits were claimed and the date of the IME’s report. The second judge made similar findings and also allowed evidence for the “gap medicals.”

The IME provided testimony in a deposition in 2015. He opined the injured employee was permanently and totally disabled in 2013 as a result of her psychiatric condition. He also opined the work-related events were a major and predominant cause of worsening the PTSD, which was directly related to her permanent and total disability. He stated his opinion had not changed over the last two years.

The injured employee testified at the hearing that even though there were minor improvements to her medical conditions, she still suffered a tremendous amount of stress. She stated she still has trouble processing information, which then increases her stress level and her inability to function. The employee stated that a lot of stimulation causes nightmares, and she had nightmares 30% of the time in the six months prior to the hearing. The employee testified she had problems in crowds and interacting with strangers during community service. She did acknowledge she could make short trips to large stores and go on hikes with friends. During this period, the injured employee received treatment from a psychotherapist once a week, undergoing eye movement desensitization reprocessing and taking prescribed medication for anxiety and sleep.

The current administrative judge also viewed two tapes provided by the defense, made by hired investigators, of the employee shopping and going out to do community service. These were not shown to the IME. The judge found the employee to be credible but did not think her symptoms and disability rose to the level of dysfunction alleged and thought she was capable of greater physical activity than she alleged. These findings were made with a rejection of the IME’s opinion on disability. The judge awarded some benefits but declined to award permanent and total incapacity benefits.

The Reviewing Board agreed with the injured person’s argument that the administrative judge erred by disregarding the expert medical evidence of her psychological disability and substituting her lay opinion for the initial opinion of the IME. The Reviewing Board also found the judge impermissibly inferred she was not mentally or emotionally disabled, based on the testimony and videotapes that were not provided to the IME. The board found the judge’s personal opinion impermissibly usurped the expert opinion she was totally emotionally disabled. The board found the activities shown in the videotape aligned with the worker’s descriptions of hiking and short trips to large stores that were considered by the IME. The decision was vacated and remanded with directions to award total and permanent incapacity benefits.

The Massachusetts workers’ compensation attorneys at Karsner & Meehan can help you with your workers’ compensation claim. Employers and insurers want to minimize the benefits paid out to employees, but we can help you pursue the benefits you deserve. Call our office today at 508-822-6600.

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