A workers’ compensation judge may request additional medical evidence in complex cases. In Pasquale v. Benchmark Assisted Living, LLC, Board No. 039096-05, a woman hurt her right knee while working at a Massachusetts assisted living facility in 2005. Following her injury, the worker’s employer began paying her § 34 total incapacity workers’ compensation benefits based on her average weekly wage of about $1,250.
About 18 months later, the worker sought mileage reimbursement at a conference that was held before an administrative judge. During the conference, the judge also considered the employer’s request to modify or discontinue the hurt worker’s benefit payments. Following the conference, the administrative judge denied the employer’s request and ordered the assisted living facility to reimburse the injured employee for her mileage at a rate of 30 cents per mile. Both the worker and the employer then appealed the judge’s decision.
A few months later, the injured employee was examined by a neutral doctor pursuant to § 11A of the Massachusetts workers’ compensation law. After the physician was deposed, the case was transferred to another judge who presided over a second hearing. Before the judge issued his decision, however, the case was again reassigned. Prior to a third hearing, the presiding administrative judge joined the injured worker’s new § 34A permanent and total disability benefits claim that was based on a psychiatric injury the woman allegedly sustained as a result of her physical harm. The judge also ruled that the parties could introduce additional medical evidence despite that the two prior judges refused to allow this because nearly seven years had passed since the woman was examined by a neutral doctor under § 11A. Although the woman’s employer objected to this ruling, both parties ultimately submitted further medical evidence.
At the third hearing, the woman’s employer argued she was capable of earning income as a result of her role working as a notary public for the family business. After the judge denied the employee’s request for workers’ compensation benefits for her alleged psychiatric harm, he found that her employment was substantial and reduced her § 34 benefit payments to about $566 per week. The judge also stated the earning capacity he assigned to the worker may exceed her actual ability to earn income. After that, the employer appealed the judge’s decision to the Department of Industrial Accidents Reviewing Board.
On appeal, the employer claimed that the judge committed error when he allowed the parties to submit additional medical evidence because the neutral physician’s testimony was adequate. According to the Board, the language of § 11A(2) allows a judge to request supplementary medical evidence in complex cases. The Board also disagreed with the employer’s assertion that the judge’s complexity determination must be overturned because it served a legitimate function and he “sufficiently justified his exercise of discretion to allow for the submission of additional medical evidence.” The Board further stated that the prior judge’s refusal to allow added medical evidence to be offered was irrelevant.
Next, the Board addressed the employer’s argument that the earning capacity the judge assigned to the worker was arbitrary. Since the administrative judge failed to explain his reasoning regarding how he arrived at the total, the Board recommitted the case back to the judge for further findings of fact on the issue.
If you were hurt at work in Massachusetts, you should contact a skilled Boston workers’ compensation lawyer who can help you recover the benefits you may be entitled to. The caring attorneys at Kantrovitz & Associates, P.C. are here to help you receive the financial compensation you deserve based on the severity of your work-related accident harm. To discuss your legal rights in greater detail, contact Kantrovitz & Associates, P.C. through our website or give us a call today at 800-367-0871.
Pasquale v. Benchmark Assisted Living, LLC, Department of Industrial Accidents Reviewing Board No. 039096-05 (March 13, 2015)
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Numerous OSHA Violations Highlight the Importance of Workplace Safety in Massachusetts, March 17, 2015, Massachusetts Workers’ Compensation Lawyer Blawg
Collecting Workers’ Compensation Benefits is Becoming More Difficult for Employees in Massachusetts and Across the Nation, March 15, 2015, Massachusetts Workers’ Compensation Lawyer Blawg
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