When claimants are older, insurers may try to argue that any worsening of their disability is due to old age, rather than a work-related injury. In a recent decision (Scott Hibbard v. Henley Enterprises), the Massachusetts Reviewing Board considered this issue in the case of an employee who injured his back while lifting a garage door at work. He was out of work for six months and then came back to a light duty job (9 hours a week) with his employer. Months later, his employer terminated him and he started to collect unemployment compensation. He did not work after 2008.
The insurer appealed from a decision that ordered it to pay ongoing benefits to the employee, raising issues of causation and worsening. The employee’s initial claim had led to an award of temporary total incapacity benefits for a few months and partial incapacity benefits that continued to the present day. The employee filed for permanent and total incapacity benefits in 2011. A judge ordered these benefits.
An impartial medical examiner had examined the employee to evaluate his claim both initially and a few years later. In his later report, he offered the opinion that the worker suffered a lumbar strain superimposed on preexisting multiple level disk degenerative changes and that the worker wasn’t able to perform work based on his complaints of pain. The medical examiner later testified at a deposition, indicating his opinion that the employee was totally disabled and that the condition could be permanent.
The insurer appealed the administrative judge’s decision. It first argued that the judge’s analysis about the worker’s combination injury was not based in evidence. A combination injury is one that is a compensable injury combined with a pre-existing condition that is not compensable. Where there is a combined injury, the resulting condition is compensable only to the extent that the compensable portion is a major cause of disability. The applicability of the combination injury rule was rejected in an earlier decision, so the reviewing board dismissed this portion of the insurer’s argument.
The insurer also argued that there wasn’t any definitive expert medical evidence that the claimed disability was permanent and total. The reviewing board explained that it was improper to expect a definitive expert opinion. The judge had recognized that the doctor’s opinion that the worker could be permanently disabled was not sufficient. However, he had credited the worker’s testimony about how much pain he was in and that he had suffered for five years without the injury improving.
Earlier case law made clear that permanent disability may be found even if a medical opinion expresses only a possible relationship if there’s enough other evidence to support the causal chain. The reviewing board affirmed this aspect of the judge’s decision.
The insurer also argued that the worker hadn’t shown that the worsening of his condition was causally related to his work-related injury. It claimed that the only evidence of change in a worker’s condition seemed to be caused by medical conditions unrelated to injury, but old age. The reviewing board explained that an employee seeking benefits for a worsening injury carries the burden of proof to show the worsening is related to the work-related injury not old age. In this case, the employee had testified his pain had gotten much worse.
The doctor had testified about significant changes, including worsened pain and the need for stronger pain medications. However, he simply accepted that the employee’s job prospects had worsened as a result of the work-related injury. The judge had not made the required specific finding that the work injury had worsened from the time of the earlier decision.
Therefore the reviewing board agreed with the insurer that the judge needed to examine and analyze whether the worsening of which the employee complained was work-related. The award was vacated and the case was sent back to the judge for further analysis and findings.
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 associated with your claim. Contact us by calling 800-367-0871 or using our online contact form.More Blog PostsMisclassification of Workers in Massachusetts, November 6, 2013
The Coming and Going Rule in Massachusetts Workers’ Compensation, October 28, 2013
Impartial Physician Reports in Massachusetts Workers’ Compensation, October 23, 2013