Workers Compensation Summary of Reviewing Board Cases – May 2017

Section 11A

Roger Bereshny v. General Electric Company, ____ Mass. Workers Comp. Rep. ____ (Long, J. 5/1/2017). The Reviewing Board utilized the majority of the written decision to emphasize that a subjective approach to medical complexity is required in cases, and cites Dunham v. Western Massachusetts Hospital, 10 Mass Workers Comp. Rep. 818 (1996). In the underlying case itself, the Reviewing Board upheld the Administrative Judges denial of a Section 30 claims for payment of a total hip replacement, and found the Administrative Judges finding of no medical complexity was not an issue given the Administrative Judges well-reasoned and rational analysis.

Gregory B. Jones v. National Grid, ____ Mass. Workers Comp. Rep. ____ (Harpin, J. 5/18/2017). This matter involved two Employers, NStar from 2005 to 2007, and National Grid beginning in 2008. NStar and the Employee cross appealed a decision awarding the Employee Section 34, and Section 30 medical benefits, and an enhanced counsel fee. NStar made four arguments that the medical opinion was not legally supportive of the decision. First taking issue with the word possible used in the diagnosis, arguing that it was insufficient to meet the legal requirement because a medical opinion must be stated in terms of probability. The Reviewing Board disagreed, noting that NStar was utilizing only an excerpt of the medical opinion, and that the opinion met the legal requirement even though the word probable was not used. Language that is substantively equivalent is sufficient.

Second NStar argued a negative Lyme disease test in 2006, cannot be used as a basis for a 2011 diagnosis. The Reviewing Board agreed, but found it does not change the outcome as the Administrative Judge did not rely on the negative test to prove the contrary, but other facts. Third, NStar also argued that the overwhelming evidence points to exposure while working for National Grid, but the Reviewing Board pointed to the Administrative Judges credibility findings and those findings being final. Finally, NStar argued the medical opinion ran afoul of Lanigan because the doctor did not personally provide testing of the Employee. The Reviewing Board disagrees as Lanigan addresses the reliability of the theory or process underlying a doctors opinion, which was not raised here. Here, the issue with the failure of the doctor to perform his own tests, which is not an issue. The last issue addressed is the enhanced fee. The Reviewing Board recommits the matter for further findings that are based on the record.


Going and Coming Rule

Valerie Hatch v. SHC Services Inc., ____ Mass. Workers Comp. Rep. ____ (Calliotte, J. 5/25/2017). The issue in this case was the going and coming rule. The Employee, a resident of Danvers, MA, was assigned by the Employer to work at a mental health facility in Brattleboro, VT. She worked the night shift five days a week, and on the weekends, she would return to Danvers, MA. She understood she was allotted expenses for the five days a week in Brattleboro, and stayed in a hotel those days. She received $123 per diem for these expenses, above her salary, but never submitted for a travel reimbursement. She did not notify the Employer when she returned to MA. On 6/24/2013, immediately after working the night shift at the end of her five-day week, she drove from Brattleboro to Danvers, and was involved in a serious car accident. At Conference, the Insurer was ordered to pay Section 34 and Sections 13 and 30 benefits. The Insurer appealed, and the only issue at hearing was the going and coming rule. The Hearing decision established liability, and ordered Section 13 and 30 benefits.

Comparing this case to Swaseys Case, 8 Mass. App. Ct. 489 (1979), the Reviewing Board affirmed the Administrative Judges decision. The Insurer argued that the Employee was not a traveling Employee, but had a fixed place of employment in VT; and that Swaseys Case is distinguishable and should not have been relied upon. As to the first argument, the Reviewing Board distinguished between those employees that are relocated to a temporary home, and those that travel from their permanent home to a fixed job site. They also looked at the IRSs qualifications defining a traveling, finding the IRSs classification not dispositive, but rather Ch. 152, s. 26, as interpreted by the courts and board as dispositive. In the second argument, the Insurer attempted to distinguish the case as here the Insurer did not know that the Employee travelled, and the per diem was only payable for the days she remained at her temporary residence. The Reviewing Board disagreed, finding those two issues did not distinguish the case.