Insurers can raise an “affirmative defense” during the proceedings related to a claim for Massachusetts workers’ compensation benefits. One such defense is allowed by the Worker’s Compensation Act, which prevents someone from receiving benefits when they’ve rejected treatment that can lessen her or his suffering through reasonable remedies and operations available through the medical profession. The injured needn’t try every possible medical procedure, just those where it appears there is substantial gain to be had, which do not subject the injured to unusual risk or danger.
Recently, the Massachusetts Reviewing Board looked at whether an affirmative defense was appropriately raised and considered. The employee claiming § 34 temporary total incapacity benefits in this action was a vending machine route delivery driver. He worked for over twenty years in this position as part of his forty-year work history. His job involved repetitive motions carrying heavy boxes of coins weighing up to 100 pounds. In 2015, he injured various locations on his right arm after falling down steps at work. The deliveryman’s employer began the payment of § 34 temporary total incapacity benefits, and the employee has not worked since.
After ten months, the insurer filed to modify or stop the § 34 benefits after a medical report from the insurer’s examining physician. This report relayed that the employee was able to return to light work with limited lifting. The employee filed for permanent and total incapacity benefits. The claims moved onto a §10A conference where the judge granted the motion for permanent benefits and ended the insurer’s motion to discontinue.