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Payment of Injured Employee’s Surgery At Center of Massachusetts Workers’ Compensation Dispute

A recently published Massachusetts Workers’ Compensation Reviewing Board decision assessed an administrative decision ordering the insurer for the employer to pay reasonable and related medical expenses under sections 13 and 30 of the Workers’ Compensation Act. The insurer appealed the decision, arguing the administrative judge erred by ruling in the employee’s favor, tablesclaiming the judge did not make consistent findings regarding the medical evidence and failed to address the motion to discontinue weekly benefits. The Board disagreed with some of the insurer’s characterizations of the findings but ultimately determined the case needed to be recommitted for additional findings of fact.

The employee is a 59-year-old woman with an associates degree, whose work history includes manual labor and desk positions. Prior to the injury central to this decision, the woman suffered an injury in the mid-90’s while working for a chain store, hurting her lower back. She was additionally harmed by a motor vehicle accident in 2005, sustaining head, neck, lower back, and shoulder injuries. The injury at hand occurred in 2014 while she was employed as a cook. Her position required her to make and serve lunch to over 100 people, lifting and washing heavy cookware before, during, and after every meal for an eight-hour period. The employee did not have issues with her low back for most of her employment until she slipped while moving food from one station to the other. While the employee caught herself before hitting the ground, she immediately felt pain in her low back. She then fell a second time on the same day. Both incidents were reported, and she received treatment for her injuries at a local hospital. The insurer provided payment for temporary total incapacity benefits following the accident. The injured worker also received acupuncture, injections, and chiropractic care, but those only provided fleeting relief.

Procedurally, the case moved forward with a hearing regarding a claim for permanent benefits. The insurer asked the judge to discontinue the temporary benefits. The judge denied the worker’s claim for section 34 benefits but did not address the insurer’s request to discontinue benefits. The judge additionally ordered the insurer to pay for a proposed lumbar surgery. Only the insurer appealed from the hearing decision. The Board felt the findings of fact were acceptable regarding the medical evidence, but it did agree the judge fell short by failing to address the insurer’s motion to discontinue benefits. The complaint in 2015 sought a discontinuance of the issued benefits, appealing a conference order that required it to pay the maximum partial incapacity benefits. Earning capacity was not formally discussed, even though the determination to deny permanent benefits included a finding the injured person could earn her pre-injury average weekly wage.

The insurer argued the judge erred by ordering it to pay for a surgery that was merely recommended and not already performed. The insurer pointed to the record, which shows one of the testifying doctors only opined on what was needed, which was not a treatment recommendation. The insurer asserted the findings referred to the surgery as if it was already performed. The Board agreed this finding was arbitrary and not supported by the evidence, vacating the finding and requiring the judge to make a new finding based on the evidence related to the testimony of this particular physician. The Board, however, did not agree with the insurer that the other findings based on the testimony by other physicians were also in error. While the Board found the findings should not have referred to section 34 benefits, the considerations of evidence were correctly applied as required by workers’ compensation case precedents. The order requiring the insurer to pay for surgery was affirmed, even though the case was recommitted for a correction of the findings as directed and to address the motion to discontinue the employee’s weekly benefits.

The Massachusetts workers’ compensation attorneys at Karsner & Meehan have the experience you need to pursue the benefits available to you. Call our office today at 508.822.6600 for a free, confidential consultation.

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