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Workers’ Compensation Judge Failed to Consider Massachusetts Employer’s Asserted Defense in Knee Injury Case

file000748444382-morguefile-krosseel-225x300In Golub v. MBTA, a bus driver began working part-time for his employer in 2011. In early 2012, the driver was transferred to a customer service position where he was required to split his shift among a number of train stops. As part of his customer service agent (“CSA”) duties, the worker oversaw the train station, monitored safety, and attempted to meet each train. Since the man worked at a particular station approximately three times per week, he was required to climb stairs regularly in order to meet the arriving trains.

About one month after beginning his CSA position, the worker apparently developed knee pain. Despite seeking medical care for his pain, the employee failed to notify his employer regarding his workplace harm. A few months later, the worker received a cortisone injection in his knee. Five days after receiving the shot, the man ceased working and underwent knee surgery. The employee was cleared to work as a bus driver about five months later. Despite this, the man’s employer refused to allow him to return to work as a bus driver for several months.

In response to the employee’s request for workers’ compensation benefits, the employer denied liability for the man’s knee harm. An administrative judge found that the worker sustained an on-the-job injury that resulted in his temporary total disability for a period of one year. In making his decision, the judge relied on the medical testimony offered by both the worker’s treating physician and the doctor who examined the man at the employer’s request. In response to the judge’s decision, the employer filed an appeal with the Department of Industrial Accidents Reviewing Board.

On appeal, the employer claimed the administrative judge’s decision failed to address the “wear and tear” doctrine or its § 1(7A) major causation defense. Additionally, the employer argued the judge’s findings were not supported by the evidence in the record. Specifically, the employer claimed the treating doctor’s testimony regarding the worker’s repetitive activities was not consistent with the employee’s explanation of his work duties. The employer also alleged that the judge took the physician’s testimony out of context when making his decision.

According to the Board, the administrative judge committed error when he found that the doctor’s testimony expressly stated the worker’s knee injury was caused by repetitive activities such as walking up and down stairs. Despite this, the Board stated the error was harmless because the judge’s decision demonstrated that he reviewed the physician’s notes pertaining to the cause of the employee’s knee harm.

The Board then said the administrative judge wholly failed to address the employer’s § 1(7A) defense. Because of this, the Department of Industrial Accidents Reviewing Board recommitted the case to the judge for findings of fact on the issue.

If you were hurt at work in Massachusetts, you are advised to discuss your right to recover for your injury with the hardworking workers’ compensation attorneys at Kantrovitz & Associates, P.C. Our caring lawyers are here to help you recover the benefits you may be entitled to following a work-related injury. To speak with a knowledgeable Massachusetts workers’ compensation advocate about your situation, give Kantrovitz & Associates, P.C. a call at 800-367-0871 or contact us online.

Additional Resources:

Golub v. MBTA, Department of Industrial Accidents Reviewing Board Decision No. 019844-12 (July 1, 2015)

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Workers’ Compensation Benefits Award Reversed for Hurt Massachusetts Worker Employed by Foreign Consulate, May 13, 2015, Massachusetts Workers’ Compensation Lawyer Blawg

Proposed Bill Would Expand Workers’ Compensation Benefits for Workers Who Suffer Disfiguring Job-Related Scarring, May 7, 2015, Massachusetts Workers’ Compensation Lawyer Blawg

Photo Credit: krosseel, MorgueFile