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Submitting Additional Testimony in Massachusetts Workers’ Compensation

ambulance-1334533-m-3Massachusetts’ workers’ compensation cases can wind up being lengthy processes. At the first hearing before an administrative law judge, the judge listens to both sides and reviews the parties’ documents, but does not listen to testimony. A temporary order is issued. If the claim is denied, the employee can appeal.

Usually an impartial examiner appointed by the DIA will examine the hurt worker. The examiner will file a report with DIA and both parties. Usually the judge will rely on this report. However, if the judge finds the report is not sufficient, he or she may allow additional medical testimony.

In Kujtime Uka v. Westwood Lodge Hospital, the Massachusetts reviewing board examined the appeal of an employee who was beaten around the head and face by patients. The employee was awarded a closed period of partial incapacity benefits for physical injuries, but was denied claims for psychological injuries. At issue in the appeal was the judge’s failure to cite additional medical evidence that the employee claimed was submitted.

The employee argued that she had submitted additional medical evidence to the administrative law judge by using a record transmission service. The transmission confirmed that she had sent the documents. However, the judge’s decision didn’t list the records that were sent as exhibits, nor did it mention the additional medical evidence. The document management system did not contain the additional evidence.

The insurer received the employee’s additional evidence on time and didn’t object to its admission. But, the insurer’s attorney did express his worry that the records were not in order or tabbed. The reviewing board could not determine whether the administrative court had even seen the evidence.

On appeal to the reviewing board, the insurer asked that the decision be affirmed because the additional evidence was cumulative (added nothing new) to the original evidence. It argued that the omission of the treating psychiatrist’s report and the treating therapist’s report was harmless and stated that they weren’t admissible opinion as to disability or causation.

The reviewing board explained that the rules of evidence apply to workers’ compensation hearings. The attorneys must provide certified copies of medical records so that the records are admissible at a hearing. The reviewing board noted that it was concerned with how much redundancy there was in the additional medical evidence because both the employee and insurer had submitted many of the same records.

The reviewing board noted that the parties should discuss before submitting additional evidence in order to figure out if certain records could be submitted as joint exhibits or reach agreement about the scope of records that each would seek to submit from any given provider.

The reviewing board also explained that the insurer’s objection was waived because it was not raised at the lower level. The decision was vacated and the judge was asked to reconsider the additional medical evidence. It ordered the employee to submit only those record that were relevant to the dispute that were not already part of the record.

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.More Blog PostsMisclassification of Workers in Massachusetts, November 6, 2013

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