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Massachusetts Construction Foreman is Found Permanently Disabled

99562_giving_ordersIn Massachusetts, workers’ compensation judges are given leeway to draw reasonable inferences from evidence presented regarding disability. This point was underscored in a recent case that concerned a fifty-one year old man who injured his left shoulder on the job.

A high school graduate, the employee worked in unskilled jobs until he participated in a training program to help minority workers join the construction trades. After the program, he started working as a foreman in the construction industry. In addition to supervising laborers, he worked with power tools to break concrete.

One day the employee jumped in to help with laboring tasks. He was hurt while using a heavy piece of equipment. The physician initially failed to diagnose a medical problem, and the employee went back to work jack-hammering. Later he filed a workers’ compensation claim.

In connection with the claim, in 2011, a doctor opined that the employee was permanently disabled as a result of the left shoulder injury, barring him from even moderate lifting. He could only perform administrative tasks. At the worker’s compensation hearing the employee claimed only total incapacity benefits. The insurer denied liability and the disability.

The judge adopted the doctor’s opinion and also took note of the employee’s testimony that he was able to perform as a non-working foreman, even though his employer had blown him off when he sought that type of work. The judge noted that the employee testified he had performed laboring work at his own discretion. However, the judge also found that no expert evidence had been presented on what a non-working foreman—a foreman limited to administrative tasks—could earn. The employee had testified he didn’t know any foremen who did not perform laboring work.

The judge inferred that since his employer had blown off his efforts to return to the labor market, the employee could not return to the labor market as a non-working foreman. She concluded he could work a minimum wage job for forty hours per week in a “non-laborious” capacity.

The insurer appealed this decision, claiming that to the extent the employee performed physical labor on the job, it was his own choice to do so. Therefore, the employee could earn $31.50 per hour as a foreman as he had testified. According to the insurer, the judge shifted the burden of proof to the insurer to prove that there were jobs above minimum wage that the employee could perform.

The reviewing board disagreed with the insurer. In Massachusetts workers’ compensation cases, the goal of disability adjudication is to realistically appraise the medical effect of a physical injury. According to the reviewing board, the judge was allowed to draw reasonable inferences from the facts to conclude that the employee’s job was for a working foreman, not a non-working foreman.

The judge had explained that the employee’s testimony combined with the lack of evidence of non-working foreman jobs led her to conclude he could not re-enter the labor market as a non-working foreman. The reviewing board ordered the insurer to pay the employee’s attorney’s fee and reaffirmed the judge’s order.

Many insurers will look for reasons to deny your claim, particularly if you have sustained more than one work injury over a long period of time. A skillful workers’ compensation attorney can help explain your injury or disability to a judge. If you are concerned about your employer’s workers’ compensation coverage, ask the experienced Massachusetts workers’ compensation attorneys at Kantrovitz & Associates what you should do. Call us at 617-367-0880 or contact us via our online form.

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