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Massachusetts Workers’ Compensation Reviewing Board Decision Reviews Affirmative Defenses

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 Legal News Gavelmachine 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.

During the hearing, the insurer asserted the injured employee failed to mitigate his medical condition by refusing to follow recommended treatment.  The employee did not object to pointed questions toward witnesses, and the insurer raised the issue directly at closing arguments.  The employee also did not object in his response to the insurer’s allegations and did not assert the insurer had waived the opportunity to raise the defense.  Despite this, the judge at the hearing awarded the permanent benefits to the injured and the insurer appealed. 

As the injured failed to object to the insurer’s argument, the insurer was able to continue pursuit of its appeal. The Reviewing Board found the evidence presented during the hearing was not sufficient to support the insurer’s pursuit of their argument that the injured deliveryman did not take his medicine as prescribed or follow the therapy regimen as directed.  The insurer also did not provide evidence the failure to do so added to his incapacity. The Board agreed with the judge’s adoption of the doctor’s opinion that any further medical procedure for his elbow shut down the insurer’s defense that surgery was necessary to the deliveryman’s improvement.  The Board also found the remaining evidence regarding prescription pain medicine to be weak in support of the defense.  The expert witness testified that over the counter medicine was sufficient to treat pain. 

The Board did find some merit to the insurer’s concern. The Board highlighted the judge’s finding that the injured employee needed multiple surgeries, but left the impression he had already undergone procedures to help remedy the injury.  The injured had not undergone any surgery and there was no specification as to whether he reasonably refused those procedures.  The Board vacated the award for § 34A benefits and recommitted the case for further findings of fact and rulings of law.

The Massachusetts workers’ compensation attorneys at Karsner & Meehan have the experience you need at your side while pursuing benefits.  Insurers are interested in limiting the amount of benefits paid out, depriving benefits the injured workers and their family are entitled to and need.  For a free, confidential consultation call out office today at 508-822-6600.

More Blog Posts:

Massachusetts Workers’ Compensation Reviewing Board Affirms Temporary Total Incapacity Benefits Award to Registered Nurse, November 16, 2017, Massachusetts Injury Lawyers Blog

Massachusetts Appeals Court Allows Estate to Pursue Wrongful Death Medical Malpractice Action, February 5, 2018, Massachusetts Injury Lawyers Blog

Massachusetts Appellate Case Reviews Medical Lien on Car Accident Settlement, March 7, 2018, Massachusetts Injury Lawyers Blog