The Reviewing Board recently issued a decision assessing the earning capacity of an injured teacher who was awarded § 35 partial incapacity benefits, calculated with two separate earning capacities. In this Massachusetts workers’ compensation case, an elementary school teacher suffered from a strain in her shoulder after years of reaching to place supplies and drawings in an overhead bin. This teacher used the same arm to demonstrate techniques and painting at an easel. She also used this arm while manipulating the paper cutter’s heavy blade. These repeated motions caused her to develop worsening pain in the section of her arm above the elbow every time she used the cutter.
On one occasion in 2009, she felt a sharp pain in the problematic arm while using the cutter, but she failed to report the incident immediately after it occurred. She also did not mention her belief that she developed a work-related shoulder condition. The teacher continued to work until her retirement in May 2010. In September 2010, she filed an incident report for the 2009 pain, as well as the general shoulder problem related to her work.
The injured teacher did tell her primary care physician about the pain in November 2009. She was referred to an orthopedic physician and given a diagnosis of rotator cuff tendinitis. The injured teacher began physical therapy, which ended in January 2010. In August 2010, she had an MRI performed on the affected shoulder. Eventually, she sought care from a different orthopedic surgeon, who ordered a cervical MRI in February 2012, which revealed numerous problems with her spinal discs C4 through C6, predominantly on her right side. This physician continued to treat her, prescribing both prescription and over-the-counter medications.
The teacher testified at the initial hearing that she had been in continuing, increasing pain since September 2009. She related that she experienced worsening pain while performing tasks like cooking, shopping, and house chores. When she testified again at the second hearing in 2014, she related that the general pain had improved due to lack of use and additional caution, but it was worse than before whenever she performed any activity.
The teacher’s claim was originally denied after the first hearing, at which the administrative judge adopted the impartial physician’s opinion that her work activities were not a major or predominant cause of her pain. This was vacated by the Reviewing Board, based on the judge’s error in using the wrong standard of causation. On recommitment, the administrative judge found for the teacher after hearing additional testimony and reviewing additional medical documents. In the second decision, the judge adopted the opinion of the teacher’s treating physician, who opined that the chronic pain, rotator cuff tear, and cervical disc derangement were caused by her work activities. The judge concluded she was totally disabled from her previous labor and occupation of teaching, but he only awarded partial incapacity benefits because she was still able to tutor and perform light work.
The judge assigned an earning capacity of $500 a week from September 2010 to September 2012, but he increased the amount to $750 a week after September 2012, based on his conclusion her disability was much milder. The teacher appealed, arguing the judge mischaracterized the evidence in order to reach that conclusion.
The Reviewing Board agreed with the teacher, finding the administrative judge did not anchor his findings in the adopted medical and factual evidence. The board found the treating doctor did not substantially change his opinion on her capacity to work during the four years of his treatment. The judge inferred improvement based on his reading of the doctor’s description, but this was not actually based on any facts in the evidence. The award based on an earning capacity of $500 per week was upheld, and the $750 per week earning capacity calculation was reversed.
The Massachusetts workers’ compensation attorneys at Karsner & Meehan are here to help you with your claim. Call us today at 508-822-6600 for a free, confidential consultation.
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