The Massachusetts Reviewing Board of Industrial Accidents recently reviewed an administrative judge’s decision regarding § 35 and § 36 benefits in a workers’ compensation appeal. In Donald Kendrick, Jr. v. Grus Construction Personnel, the employee sustained a work-related injury to his lower back, knee, shoulder, and elbow. The employer’s insurer paid § 34 total incapacity benefits from the date of injury until March of 2005. The administrative judge found that the employee was partially disabled and ordered the insurer to pay benefits, and that decision was subsequently affirmed by the Reviewing Board.
The employee then filed a claim for penalties under § 8(5) and § 14, alleging that the insurer failed to make the payments ordered in a timely manner. The judge denied the employee’s claim for penalties, finding that although the employee provided an earnings report, he failed to supply wage information for the period at issue, and did not attend a scheduled § 45 examination. The judge’s decision was eventually affirmed in part and reversed in part by the Massachusetts Court of Appeals, which ordered the administrative judge to determine the payments due and owing to the employee for the period in question. On recommittal, the judge found that the employee had forfeited benefits for specific periods by failing to prove lost wages. The judge also found that the employee’s increased pain after March of 2010 was no longer casually related to the 2004 industrial accident, but was due to aggravation suffered while working for subsequent employers. The judge therefore determined that the employee did not have any causally related incapacity or permanent loss of function under § 36.
On appeal, the Reviewing Board agreed that the judge erred in not awarding § 35 benefits. The Reviewing Board explained that because the judge had determined that the employee was partially incapacitated in the first decision, the judge was required to find a change in the employee’s medical or vocational status, supported by the evidence, to modify or discontinue the employee’s weekly benefits. Accordingly, the Reviewing Board reversed the decision on this issue, and reinstated the benefits awarded to the employee in the first decision. In addition, the Reviewing Board also found that it was an error for the judge to find that the employee did not have a permanent loss of function, as the employee had withdrawn that claim.
The Reviewing Board, however, did not agree with the employee’s final argument that the judge erred by failing to reconsider the suspension of benefits until the employee attended the independent medical exam. The Board did find that after the employee had attended the examination, the judge applied an incorrect causation standard in determining whether to award benefits. As such, the matter was recommitted for findings on that issue.
If you have been hurt in an on-the-job accident or suffered a work-related injury, you may be entitled to compensation for your medical expenses and lost wages under the Massachusetts Workers’ Compensation Act. At the Massachusetts firm of Pulgini & Norton, our benefits lawyers are dedicated to providing high-quality legal services to individuals pursuing workers’ compensation benefits. To discuss your claim with one of our experienced injury attorneys, contact our office at (781) 843-2200 or online and schedule a consultation.
More Blog Posts:
Massachusetts Appeals Court Finds for Worker Claiming Partial Incapacity Benefits, Massachusetts Workers’ Compensation Lawyer Blog, published August 12, 2015
Massachusetts Court of Appeals Adopts Administrative Judge’s Findings Regarding Employee Credibility, Massachusetts Workers’ Compensation Lawyer Blog, published October 27, 2015