An administrative judge is required to state how an injured worker’s earning capacity was determined when making a workers’ compensation award. In Miranda v. Huntington Hotel Corp., a hotel housekeeper hurt her back while lifting a bag of trash. As a result of her compensable back harm, the housekeeper underwent two surgical procedures. The woman’s employer paid her § 34 total incapacity workers’ compensation benefits until they were exhausted by statute. After that, the housekeeper sought permanent total incapacity benefits under § 34A. Following a hearing, an administrative judge awarded the worker benefits for a period of one year. In response to the judge’s decision, both parties filed an appeal.
Soon after, the housekeeper was examined by a § 11A impartial physician, whose testimony was then entered into evidence. At no time did the housekeeper or her employer seek to admit additional medical evidence. At a subsequent hearing, the housekeeper’s employer claimed the woman exaggerated about the extent of her disability. In support of its position, the employer offered surveillance evidence that was provided by an investigator who followed the housekeeper around town as she ran several errands. The housekeeper admitted she ran the errands but stated her back pain often limits her ability to sit, stand, walk, or engage in other activities.
After stating he was not persuaded by the worker’s testimony, the administrative judge found that, although the worker could not return to her housekeeping position, she was able to perform light duty work for 20 hours per week. Because of this, the judge adjusted the woman’s earning capacity and entered an order for § 35 benefits at a rate of about $334 per week. The worker then filed an appeal with the Department of Industrial Accidents Reviewing Board.
On appeal, the housekeeper claimed that the judge mischaracterized the neutral physician’s testimony when he made his decision. The Board disagreed and found that the judge’s interpretation of the doctor’s testimony was reasonable. In addition, the Board stated the judge was not required to credit the worker’s testimony regarding her pain level. Because of this, the Board affirmed the judge’s decision with regard to the housekeeper’s partial incapacitation.
Next, the worker claimed the judge erred when he failed to articulate the basis on which her earning capacity was determined. She also claimed the judge should have addressed the months leading up his decision in his order. The Board agreed with the housekeeper’s claims and recommitted her case for additional findings of fact on those issues.
If you were hurt at work in Massachusetts, you should discuss your rights with the thoughtful workers’ compensation attorneys at Kantrovitz & Associates, P.C. Our committed lawyers are here to help you recover the benefits you may be entitled to following a work-related accident. To speak with an experienced Boston workers’ compensation advocate about your case, give Kantrovitz & Associates, P.C. a call today at 800-367-0871 or contact us online.
Miranda v. Huntington Hotel Corp., Department of Industrial Accidents Reviewing Board Decision No. 005508-10 (May 28, 2015)
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