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Workers’ Compensation For Chronic Pain

A workers’ compensation judge has the freedom to consider different doctors’ opinions before deciding whether to award workers’ compensation benefits. The judge is not limited to the most restrictive opinion but may award benefits if any of the physicians who examine the injured worker has the opinion that the worker can no longer work, for instance because of chronic pain. The insurer, Massachusetts Retail Merchants, AIG, in the case of Remberto Galdamez appealed from a decision awarding Mr. Galdamez § 34A permanent and total incapacity benefits. The Massachusetts Department of Industrial Accidents Reviewing Board affirmed the award of benefits at Board No. 037394-08.

Laborer Injured Loading Fish

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Mr. Galdamez, born and raised in El Salvador, came to the United States in 1987. Within days of arriving in the United States, he began working as a laborer for Channel Fish Co., Inc. On September 19, 2008, he suffered a work-related injury when a heavy barrel rolled off a truck and landed on his shoulder and neck. He continued to work until the pain became overwhelming. He then attempted light duty, but, according to the employer’s testimony, he was not able to perform any physical work. Mr. Galdamez was examined by Dr. John Lynch, the impartial physician, pursuant to G.L. c.152, § 11A(2). Although the report was deemed adequate, in response to joint motions filed by the parties, the judge allowed additional medical evidence due to the complexity of the medical issues.

Workers’ Compensation Judge Finds Worker Totally Incapacitated

The judge found Mr. Galdamez to be totally incapacitated, based on the medical evidence and the testimony of both Mr. Galdamez and his employer, Louis Sylvestro. The judge also adopted the medical opinions of Dr. James Hewson and impartial physician Dr. John Lynch, causally relating the injuries and resulting disability to the September 19, 2008 industrial accident. The insurer appealed the award of benefits to Mr. Galdamez.

Insurer Says Judge Mischaracterized Physician Testimony

On appeal, the insurer argued that the judge mischaracterized Dr. Eugenio Martinez’s opinion regarding disability by finding that Dr. Martinez opined Mr. Galdamez was totally disabled from gainful employment. In fact, the insurer contended Dr. Martinez opined only that Mr. Galdamez suffered from “chronic pain syndrome” and was totally disabled from his usual occupation.

Reviewing Board Finds Error Harmless – Judge Relied On Other Physicians’ Testimony

Although the Reviewing Board agreed that the judge mischaracterized Dr. Martinez’s opinion, it found the error to be harmless because her decision was not based on his opinion, but on the opinions of Drs. Lynch and Hewson, both of which amply supported the judge’s conclusion on incapacity. The judge adopted Dr. Lynch’s opinion that Mr. Galdamez was totally disabled due to his work-related neck and shoulder injuries and resulting chronic pain syndrome. Additionally, the judge adopted the opinion of Dr. Hewson, who likewise found that Mr. Galdamez suffered from chronic pain syndrome and was totally disabled from gainful employment as a result of his work injuries. The Reviewing Board said the judge was free to credit the testimony of one medical expert over another, but the evidentiary basis of that award should be clear. The Reviewing Board found the the judge clearly adopted medical evidence supporting her ultimate conclusion on incapacity and causation, and therefore any error in mischaracterizing another opinion she did not adopt was harmless.

No Need for Vocational Expert To Assess Residual Capacity:  Award Affirmed

The insurer also argued that the judge did not adequately address residual capacity because there was no vocational analysis. Despite the absence of a specific vocational analysis, the Reviewing Board credited the judge with assessing a number of relevant factors. She found Mr. Galdamez speaks limited English, has difficulty reading or writing in either Spanish or English, and worked as a laborer for the same employer for 21 years. She credited his testimony that he continued to experience pain and debilitating symptoms. She also credited the testimony of the employer that he did not believe Mr. Galdamez was physically capable of performing his work duties. Thus, in addition to the credited medical evidence, the judge considered the work history, complaints of incapacitating pain, limited education, and language difficulties, and she found Mr. Galdamez to be permanently and totally disabled. Since the finding of total incapacity was supported by the evidence, an explicit vocational analysis to determine residual earning capacity was unnecessary. For all these reasons, the decision of the administrative judge to award permanent and total incapacity benefits was affirmed.

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 or give you guidance if there is no insurance available. Contact us by calling 800-367-0871 or using our online contact form.

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