In Barone v. Life Care Center of West Bridgewater, a 54-year-old Massachusetts food service worker apparently injured her neck and shoulder while working as a chef in 2010. Following her workplace injury, the woman’s employer accepted liability for her harm, and the worker underwent two surgical procedures. More than two years later, the employer sought to discontinue the employee’s workers’ compensation benefit payments.
The employer’s request was denied following a conference before an administrative law judge. At the same proceeding, the food service worker was allowed to join a § 34A claim to the proceedings. In February 2014, the employee requested ongoing § 34A or § 35 benefits beginning in October 2013. At the time, the worker testified that she was awaiting MRI results in order to determine whether her workplace harm required additional surgery. The administrative judge told the parties to explore further whether additional surgery was needed.
In May 2014, the food service worker filed a motion to join the issue of medical treatment in the proceedings. The administrative judge denied the employee’s motion but reopened the record for additional medical evidence. Three months later, a neutral § 11A physician offered testimony in the woman’s case. Additionally, the employer provided additional medical evidence. Despite this, the injured worker failed to do the same.
In his decision, the administrative judge stated the worker’s request to join the issue of additional surgery at such a late stage would not serve judicial economy. Next, he adopted the medical testimony offered by the neutral doctor. The judge also adopted the physician’s opinion that the employee’s work-related harm was a major cause of her ongoing disability. Although the administrative judge credited the worker’s complaints of ongoing and chronic pain, he did not credit her assertion that the pain relievers prescribed to her caused her to suffer disabling side effects.
Ultimately, the judge ruled that the worker was partially disabled and capable of part-time minimum wage work from January 2013 through the date of the hearing. As a result, he awarded the woman § 35 partial disability benefits for this period and continuing § 34A permanent disability benefits beginning on the date after the hearing. In response, the employer filed an appeal with the Department of Industrial Accidents Reviewing Board.
On appeal, the employer claimed the judge’s decision to award the employee § 34A benefits was arbitrary and capricious. The Board agreed and stated the administrative judge’s permanent benefits award was not grounded in the evidence. According to the Board, the judge erroneously based his decision on an unapproved and unscheduled surgical procedure. Since there was no evidence offered to support a permanent incapacity award, the Department of Industrial Accidents Reviewing Board modified the administrative judge’s § 34A benefits award to instead be paid under § 35 of the Massachusetts Workers’ Compensation Law.
If you were hurt at work in Massachusetts, you should discuss your right to recover medical or disability benefits with a Boston workers’ compensation attorney as soon as you are able. The caring lawyers at Kantrovitz & Associates, P.C. are here to help you recover the financial compensation you deserve based on the severity of your workplace accident injuries. To speak with a knowledgeable workers’ compensation advocate, call Kantrovitz & Associates, P.C. at 800-367-0871 or contact us through our website.
Barone v. Life Care Center of West Bridgewater, Department of Industrial Accidents Reviewing Board Decision No. 026531-10 (September 11, 2015)
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