The Appeals Court of Massachusetts, in Mohammed Benabed’s Case, 85 Mass. App. Ct., 1111 (April 4, 2014) upheld a decision by an administrative law judge (ALJ) to permit an employee to submit additional medical evidence in support of a workers’ compensation claim. The ALJ had justified her decision that the employee’s medical condition was complex and that the additional evidence was necessary both to present an accurate picture of his work-related injuries and to assess his diminished earning capacity.
The additional testimony was that of a Dr. Zarin, whose preliminary opinion was that the employee’s medical condition was complex and that the court needed additional medical evidence to render its decision. Dr. Zarin then assessed the employee’s condition using the additional medical evidence.
In his report, Dr. Zarin verified that the employee had suffered an acute injury at work. He also inferred from the additional medical evidence that the employee’s workplace injury was in addition to his pre-existing condition of posttraumatic arthritis. The arthritis resulted from damage to his leg and knee from being tortured in his native country.
The Appeals Court denied the employer’s motion to ‘settle’ and ‘clarify’ the record and reopen the case, finding that the employer had forfeited any option to object to either the ALJ’s substantive ruling or her decision to accept the additional medical evidence to assist in making that ruling.
The court rejected the employer’s motion because the employer had failed to raise any issue before the ALJ regarding the completeness of the record. The employer had not objected when the ALJ granted the employee’s motion to expand the record.
The hearing transcript showed how the employer had been given a fair chance to object to the additional medical record but did not take advantage of the opportunity. On appeal, trying to show that it had indeed objected, the employer’s attorney submitted an affidavit to the Appeals Court that the Trust Fund’s attorney had objected orally at the hearing to both the employee’s motion and to the ALJ’s ruling. However, the Appeals Court rejected the affidavit as inadequate, since it was not submitted by the attorney who allegedly made the objection.
The Appeals Court also affirmed the ALJ’s decision as to the employee’s earning capacity. The court found her decision to comply with Massachusetts case law. The relevant case law, as cited by the Appeals Court, mandates that in calculating an employee’s loss of earning capacity, the ALJ should consider the employee’s work experience, education, training, and age.
The employer had argued that the ALJ’s decision in this instance was arbitrary and capricious because it was based on the employee’s actual post-injury earnings and nothing else. The Appeals Court’s reading of the ALJ decision was that it was much more comprehensive, including:
- the employee’s language limitations;
- his age;
- his education; and
- his physical limitations.
The Appeals Court found that the ALJ had considered all these factors, combined with the employee’s willingness and effort to work to the maximum of his existing capacity. The ALJ had considered the full spectrum of factors as required by Massachusetts law, and her decision was therefore not arbitrary and capricious.
The Appeals Court therefore affirmed the ALJ’s award of benefits and denied the employer’s motion to appeal both the ALJ’s ruling granting benefits and the Appeals Court’s preliminary ruling denying the employer’s motion to ‘settle’ and ‘clarify’ the record and reopen the case.
If you are hurt at work, even if you have a pre-existing injury or condition, 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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