In a recent Massachusetts reviewing board decision (Douglas Cooks v. Starbucks), a worker appealed from an administrative judge’s denial of total incapacity benefits and award of continuing partial capacity benefits. The employee argued the judge should have granted his motion to admit additional medical records under G. L. c. 152, § 11A (2). The rule in that section provides that a physician is not allowed to offer additional medical reports or depositions by right. Rather an administrative judge can authorize submission of additional medical testimony when the judge finds that this testimony is required because medical issues are complex or the impartial medical examiner’s report is inadequate.
The worker in this case had hurt his left Achilles tendon while working in 2009. The insurer accepted the case. In July of 2011, the worked filed a claim for disfigurement benefits. At a 2012 conference, the judge permitted the worker to add a claim for loss of function benefits, denied his motion to join a claim for section 14(1) benefits, and allowed the insurer to join a complain to modify or discontinue his § 34 benefits.
The judge ordered the insurer to pay his section 36 claim. He denied the insurer’s request to modify or discontinue weekly benefits. The insurer appealed.
An orthopedic surgeon, Dr. Kenny, examined the worker. He diagnosed left Achilles tendon rupture, status post Achilles tendon repair, bilateral lower extremity deep venous thrombosis, and pulmonary embolism. He also offered the opinion that work had caused the worker’s diagnosed problems.
The judge accepted his diagnoses and his opinion about a causal relationship. The reviewing board noted that the judge wrongly observed that the finding of deep venous thrombosis and pulmonary embolism was the first time a judge had been presented with this diagnosis for the worker’s problems. In fact, the worker had submitted reports from a Dr. Clermont who put forth both diagnoses.
Irrespective of his incorrect observation, the judge accepted the thrombosis and embolism causation opinion. Later, at deposition, Dr. Kenny testified that he probably didn’t have the expertise to provide a definitive opinion on continuing disability based on these problems. Accordingly, the worker made a motion to admit additional medical evidence. He offered a medical report from Dr. Douglas.
The reviewing board found that the judge didn’t err in denying this motion. The rule is that where an impartial examiner does no offer an explicit opinion on disability, a judge can ask the employee to submit an offer of proof of disability as a condition to allow him to present additional medical evidence. A judge can also deny a motion on the basis that the claimant does not offer of proof of disability.
The medical report in support didn’t offer an opinion on the worker’s disability due to his deep venous thrombosis or pulmonary embolism. The reviewing board noted that the worker admitted at a hearing that he wasn’t taking medication for these two conditions, nor had any doctor restricted his activities based on those conditions. The reviewing board explained that a worker has the burden of proof for every aspect of his claim. Since there was no relevant proffered evidence of disability based on those two diagnoses, it was appropriate for the judge to deny his motion.
If you are hurt at work, you may be entitled to workers’ compensation benefits. An experienced Massachusetts workers’ compensation attorney can evaluate whether you have a sound claim and fight to make sure that your employer and its insurer follow the rules. Contact us by calling 800-367-0871 or using our online contact form.
Submitting Additional Testimony in Massachusetts Workers’ Compensation, March 12, 2013
Combustible Hazards in Massachusetts’ Workplaces, March 9, 2013
Impact of Misrepresentations About Your Activities in Massachusetts, March 7, 2013