Workers’ Compensation Reviewing Board Upholds Total and Permanent Benefits Award

When a workplace accident completely removes your ability to work, you may qualify for permanent and total incapacity benefits through workers’ compensation. These are also known as § 34A benefits. In Downing vs. Davenport Realty Trust (Bd. No. 026102-11), the board reviewed a decision awarding an employee §§ 13, 30, 34, and 34A benefits. In this case, the insurer objected to the finding of the administrative judge, who relied upon the testimony of the injured employee and the testimony of a doctor who examined him.

The employee sustained a work-related L4-5 disc herniation. He was 63 years old at the time of the hearing, and he had spent most of his work life at unskilled to semi-skilled employment in physically demanding occupations. During the administrative hearing, the injured worker testified that he had previously been able to do heavy work, including lifting up to 200 pounds, but now he had trouble lifting as much as 10 pounds. The judge made a formal finding that the employee’s pain disturbed his sleep and that his herniated discs were related to an injury sustained at work.

The judge did stop short of adopting the examining doctor’s opinion on the extent of the injured worker’s disability. Instead, she relied upon a separate testifying doctor’s opinion, which concluded that he was totally disabled from work. The last thing considered was the testimony of a vocational rehabilitation expert, who opined that the injured employee could not earn wages due to his work-related injury. Lost wages were awarded for a year, and § 34A benefits were awarded following that period.

The insurer appealed, claiming that the judge should not have adopted the second doctor’s opinion. The insurer felt that the evidence did not merit a finding based on an ambiguous opinion on the causal relationship between the injury and the disability. The board disagreed, feeling that the judge was fully able to rely on the second doctor’s opinion that the injury was the major cause of his back condition. The board felt this was consistent with the testimony of the first doctor and stated that it is up to the judge to adopt and combine the opinions of testifying physicians.

The insurer was also unhappy that the judge rejected the testimony of the first doctor, who opined that the injured employee was not fully disabled. The board re-emphasized that the administrative judge has the discretion to accept or reject any and all testimony presented. The board affirmed the award of the benefits and even ordered attorney’s fees to be paid by the insurer.

The Massachusetts workers’ compensation attorneys at the Law Office of James K. Meehan know what proof is necessary for a successful workers’ compensation claim. If you have suffered a serious workplace injury, we can aggressively pursue § 34A benefits on your behalf. Our firm knows that every dollar counts, and financial stability is necessary to regain some normalcy in one’s life. For a consultation, call our office today at 508-822-6600.

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