If an employee seeks benefits for a work-related injury but has previously suffered medical ailments outside work, an insurer will likely point to the pre-existing condition to show the permanent condition was not caused by the Massachusetts workplace injury. A Massachusetts Reviewing Board decision (Bd. No. 019236-10) analyzed this scenario recently. The employee was severely injured after an attack by a patient. The worker was punched in the head, knocked down, and repeatedly kicked in his abdomen and chest until he passed out. He received medical treatment following the accident, but he still requires care for a fractured right lower leg, deep vein thrombosis (DVT) in his right leg, chronic lower leg pain and instability, and chronic lumbosacral pain. The employee has not been able to return to work since his injury.
At the first hearing, the worker was awarded permanent and total incapacity benefits (§ 34) from the date of the injury onward. The administrative judge found the injured employee’s neck pain, right knee injury, fractured fibula, DVT, and ankle pain were all caused by the workplace incident. The judge specifically found the employee’s long-term, pre-existing seizure and degenerative arthritis disorders did not worsen because of the injury and did not cause or add to any of the incapacity.
The employee’s injuries were so aggravated by the time of the second hearing that he could only stand for five to 10 minutes at a time, sit for 10 to 15 minutes at a time, and walk for 10 to 15 minutes at a time. Despite the use of a cane, his knee and leg would give out, causing him to frequently fall. The intensity of the pain also meant he suffered from interrupted sleep. In his findings on the second hearing, the judge relied upon the opinion provided by the impartial medical examiner (IME), reiterating his findings from the first hearing. The insurer appealed, raising three issues. It felt the judge improperly relied upon the IME’s opinion to find a permanent and total disability because the IME referred to the employee’s back and seizure conditions in reaching his opinion. Since the judge specifically found the § 34 benefits were NOT related to the industrial accident, the insurer argued this was inconsistent and should be thrown out.
The Reviewing Board disagreed, finding the opinion to be acceptably consistent. Massachusetts case law grants administrative judges discretion to choose which opinion to adopt in their findings. The IME opined the employee had “persistent residuals” with the fractured fibula, chronic right lower leg pain and instability, and chronic lumbosacral pain since the date of the incident, and this had a causal nexus with the incident. The reviewing board determined that even though the judge did not adopt the IME’s opinion that the seizures increased as a result of the work incident, he could elect to adopt the prior findings regarding the leg and back issues.
The insurer also questioned on appeal the rejection of the vocational witness’ opinion. The insurer argued this violated prior case law, which requires vocational analysis to include a source and application of an earning capacity. The Reviewing Board pointed out the case cited by the insurer concerned an employee who was found to be partially disabled. The Reviewing Board distinguished that from the present case, in which there was no reasonable likelihood the employee could earn a wage in the foreseeable future. The award of § 34 benefits was affirmed.
Our Massachusetts workers’ compensation attorneys can help you with your claim. The attorneys at Karsner & Meehan have the experience you need to help separate pre-existing conditions from those sustained in the workplace in a claim for benefits. Call today at 508.822.6600.
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