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Massachusetts Workers’ Comp Judge May Rely on Employee Testimony

110406_janitors_bucket_with_mop__1The Massachusetts Worker’s Compensation Reviewing Board recently reviewed a case (Nelson Andrade v. Surface Works) in which it considered the question of whether a judge may choose to give more weight to an employee’s own testimony than his doctor’s testimony. The sixty-year-old employee who was the subject of the case had immigrated from Brazil to the U.S. in 1998. He attended school for six years before working as a cleaning contractor at construction sites in Massachusetts.

In October 2008, the employee had to go to the hospital emergency room for leg pain and pins and needles sensations in his extremities. In November, he developed pain in his lower back while squatting and cleaning windows. He had a right carpal tunnel release, but this didn’t relieve his hands and wrists.

He filed for worker’s compensation benefits for flares of his back and knee condition, claiming to be temporarily totally incapacitated. He appealed and at the subsequent evidentiary hearing, an impartial doctor presented his findings. Because the issues were complex, the judge also allowed the parties to submit their own additional medical evidence.

The judge made several determinations based on the evidence presented. He determined that the employee suffered industrial injuries to his back, hands and wrists, but not his knees. He relied on one doctor’s opinion that found the employee’s lumbar strain was related to his work and adopted another doctor’s opinion that work-related back strain was not the cause of the employee’s symptoms several months later.

The employee had complained of hand and wrist injuries. The judge found that the employee suffered from these injuries because of repetitive manual labor for the employer. The judge also looked at the extent of the employee’s incapacity.

For the ongoing carpal tunnel syndrome, the judge awarded partial incapacity benefits. He found that the employee could not lift more than 22 pounds and could not grip or grasp repetitively. Therefore, he concluded, the employee could only work two shifts earning minimum wage.

The employee was unhappy with this conclusion. He argued that this 22 pound lifting restriction was inconsistent because the judge had also adopted the opinion that the employee’s carpal tunnel condition limited him to no more than 10 pounds.

The reviewing board explained that the judge had not relied solely on one doctor’s lifting restrictions. Rather he had decided to deviate from the doctor’s opinion on that issue and adopt the employee’s testimony about his own injury. The employee argued that the judge shouldn’t have relied on his lay testimony rather than a medical opinion to establish he could lift 22 pounds. The Massachusetts reviewing board explained that an expert could give opinions on a worker’s ability to perform specific tasks like lifting. However, the judge has the discretion to give more weight to a worker’s credible testimony about his limitations.

The employee had cited no medical evidence to show he was more restricted in lifting than what he had originally testified. The employee also thought the judge shouldn’t have ignored his testimony that he sometimes could lift ten kilos “more or less”. Again the reviewing board reiterated that the judge could give weight to the employee’s credible testimony on his own limitations.

If you have suffered an injury at work, it is important to retain an experienced worker’s compensation attorney to make sure you get the most favorable outcome for your case. A workers’ compensation attorney can give you a better sense of what your claims are and the benefits for which you are eligible. He can also negotiate with an insurer and file a claim on your behalf. Call the  experienced Massachusetts workers’ compensation attorneys at Kantrovitz & Associates for a free consultation at 617-367-0880 or contact us via our online form.

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