Recently the Massachusetts Reviewing Board considered a case in which a 41-year-old employee appealed after his workers’ compensation claim for benefits was denied. He claimed he had been hurt on his second day of work when a forklift shoved three empty large containers into him. His foot had gotten caught under the containers, and he had pain in his back, hip, and knee. After a Section 10A conference, a judge ordered the insurer to pay benefits. The parties appealed.
The judge acknowledged the worker’s claim about getting his foot caught but found that the record showed the worker had not sought treatment for the leg injury. Furthermore, the CT scan and x-ray did not show evidence of traumatic injury. A treating doctor’s note suggested that the worker had “drug-seeking behavior” and magnified his symptoms. The judge also found that the worker previously had been incarcerated for breaking and entering and property theft. In Massachusetts, these are crimes that allow the court or a judge to draw an inference of untruthfulness and, under certain situations, apply it to the testimony of a convicted felon.
The worker did not challenge the finding on appeal but did bring up the judge’s comments. These included remarks about the consistency between his date of hire and his date of injury in four different workers’ compensation cases. The worker had a history of three claims of injury within two weeks of hire and another of an injury within 11 weeks of hire. The judge took from this evidence the inference that the worker was a “compensation-minded” individual and that he was not necessarily credible in his current claim. The judge ultimately concluded the worker was not a credible witness as to the industrial injury and dismissed his case.
The worker appealed, arguing his due process rights were violated. The judge had elected to review his prior workers’ compensation claims without providing notice to the parties and without the parties bringing them up. He argued that, since the judge had made credibility findings without notice to the parties, he was prevented from objecting to the evidence. The reviewing board agreed. It explained that the judge is permitted to draw credibility determinations, and they will stand, unless they are arbitrary and capricious. On the other hand, the parties have a due process right to present evidence, examine witnesses, know what evidence is presented against them, and have the opportunity to rebut. In this case, the judge investigated the worker’s past history of workers’ compensation claims and specifically relied on this independent investigation to question the worker’s credibility.
The reviewing board explained that the choice to investigate independently deprived the worker of the opportunity to object, explain, or rebut the evidence. The judge noted other reasons not to credit the worker but specifically called attention to the worker’s unusual claims history as the basis for questioning whether he had a legitimate claim. The reviewing board found that this decision was not harmless because it was an important factor in finding the worker not credible.
If you are hurt at work, you may be entitled to workers’ compensation benefits. It is important to be totally honest with your attorney about any past claims you may have made and all the circumstances of your accident. 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 or give you guidance if there is no insurance available. Contact us by calling 800-367-0871 or using our online contact form.More Blog PostsSubmitting Additional Testimony in Massachusetts Workers’ Compensation, March 12, 2013
Combustible Hazards in Massachusetts’ Workplaces, March 9, 2013