In an appeal involving two separate work-related injuries, the Board affirmed a lower judge’s finding that a second incident was not the cause of further harm. Since the employee worked for two separate employers, the workers’ compensation insurance company for the first employer argued that the second employer (and insurer) should be liable for the injuries from the second incident. The Board reviewed the judge’s findings and held that a compensable personal injury did not take place when the employee’s knee gave out a second time.
Jair Ortiz Vasquez worked as a houseman for Sheraton Springfield, insured by AIM Mutual Insurance Company (AIM). During work on September 7, 2011, he fell through a gap located between a loading dock and a truck, and his left leg twisted, resulting in pain in his left knee. After treatment, he returned to work five days later for Sheraton and his other concurrent employer, SPHS Mercy Medical Center, insured by ACE American Insurance Company.
On September 28, 2011, while working at Mercy, the judge found that Mr. Vasquez lost control of his left leg and fell forward, and in the weeks before that incident, he had lost control of his left leg.
The judge adopted the opinion of Dr. Steven Silver, the impartial medical examiner, who causally related Mr. Vasquez’s disability to his September 7, 2011 injury. After testifying that most likely Mr. Vasquez’s left leg had a meniscal tear caused by his September 7, 2011 fall, Dr. Silver opined Mr. Vasquez’s disability would have continued even without his knee giving out at Mercy on September 28, 2011. The judge found that while Mr. Vasquez’s symptoms worsened, it could not be determined that Mr. Vasquez’s pathology increased due to this second incident. He ordered AIM, the insurer for Sheraton, to pay Mr. Vasquez’s benefits.
AIM appealed, arguing that the judge did not make sufficient findings of fact by not concluding that Mr. Vasquez suffered a compensable injury when he was injured at Mercy on September 28, 2011.
The Board stated that the judge credited Mr. Vasquez’s testimony and adopted the medical evidence in order to find that Mr. Vasquez’s knee gave out at Mercy on September 28, 2011 because of his earlier injury. The judge also found that this second incident was not the cause of any further injury or of the employee’s disability. Simply because Mr. Vasquez’s knee gave out at Mercy, without more, did not make it a compensable injury. The Board also noted that while AIM claimed that Mr. Vasquez fell “heavily” on his left knee, in fact the record showed that did not take place.
The Board stated the judge’s decision to order the initial insurance company to pay compensation was proper. They affirmed the decision and ordered AIM to pay attorney’s fees.
The Massachusetts attorneys at Pulgini & Norton offer skilled legal representation for clients pursuing workers’ compensation benefits. If you or a loved one has been hurt in a job-related accident, you may be entitled to compensation for medical expenses, lost wages, and other benefits. To discuss your claim, contact our office for a free consultation with an attorney. We can be reached by calling (781) 843-2200 or through our online form.
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Massachusetts Appeals Court Finds for Worker Claiming Partial Incapacity Benefits, Massachusetts Workers’ Compensation Blog, August 12, 2015