Workers Compensation Summary of Reviewing Board Cases – October, 2016

Section 1(7A)

Cheryl Briere v. Lowell General Hospital, ____ Mass. Workers Comp. Rep. ____ (Harpin, J. 10/17/2016). The Insurer appealed a decision awarding Section 34A benefits arguing, in relevant part that, 1.) that the Employee never claimed such benefits, 2.) the Administrative Judge discounted its Section 1(7A) defense and did not perform the requisite Section 1(7A) analysis. Without further comment by the Reviewing Board, a third argument was found without merit.

The Employee sought Section 34 benefits, and at no time did the Employee claim entitlement to Section 34A benefits. The Reviewing Board amended the decision and ordered Section 34 benefits, commenting that a Judge must only decide issues before him and not stray from those parameters.

The Employee had multiple prior work related injuries working as a CNA throughout her career for different employers. The Insurer argued that the Section 1(7A) defense was improperly discounted and there was no evidence to find the current work injury remained a major cause. After reviewing the medical history, the Reviewing Board agreed that the doctors did not state that the injury was a major cause of the Employees disability and need for treatment, however the doctors did state that the injuries were related to the Employees work as a CNA. The Reviewing Board noted that a basic tenant of Section 1(7A) was ignored, that [w]hen there is a combination of a prior condition and the industrial accident, the employee is not subjected to the higher burden of providing a major cause, when the prior condition is work related. Citing Martinez v. Georges Renovations LLC, 28 Mass. Workers Comp. Rep. 73, 76 (2014). The employee did not need to meet the enhanced burden.

Section 11A(2)

Mae Roscoe v. Brigham and Womens Hospital, ____ Mass. Workers Comp. Rep. ____ (Koziol, J. 10/24/2016). The Self-Insurer and Employee cross-appealed a decision on recommittal that awarded Section 34 benefits to the Employee from 7/12/11 and continuing, as well as medical benefits. The Self-Insurer argued that the Administrative Judge, after opening the medical record after recommittal, exceeded the scope of remand by finding further disability after adopting the Employees additional medical record. The medical record was written after the close of evidence in the underlying hearing. The Reviewing Board disagreed, noting that the Self-Insurer did not object to the admission of the report, and also that the Self-Insurer also submitted medical records dated after the Administrative Judges first decision. The Reviewing Board found no merit to the Employees appeal.

The Reviewing Board affirmed the decision on recommittal, however modified the Section 34 benefit award to comply with the statutory 156-week limit. In modifying the Section 34 benefit award, the Reviewing Board also required payment of maximum partial disability benefits from the date of Section 34 exhaustion, noting that [w]here 34 benefits have been exhausted it would be contrary to the Acts humanitarian purposes, Young v. Duncan, 218 Mass. 346, 349 (1914), to deny benefits to a more seriously injured worker while granting benefits to those less seriously injured. Quoting Bracchi v. Insurance Auto Auctions, 22 Mass. Workers Comp. Rep. 287, 288 (2008).

Section 25A(2)

Two cases addressed Section 25A(2). These cases involved the specific facts surrounding the now insolvent Self-Insurer Polaroid Corp., Inc. and what entity should make payment on all injured Employee benefits. These cases are: Joseph Flaherty (Deceased) v. Polaroid Corp., Inc., ____ Mass. Workers Comp. Rep. ____ (Koziol, J. 10/5/2016) and Annie Talbert v. Polaroid Corp., Inc., ____ Mass. Workers Comp. Rep. ____ (Koziol, J. 10/11/16). In both cases, the Administrative Judge ordered the Workers Compensation Trust Fund (WCTF) to pay the employees benefits, and the WCTF appealed. The Reviewing Board vacated the order for the WCTF to make payment, and ordered the reinsurance company pay the benefits required.

Section 35

Marybeth Pavilonis v. City of Boston, ____ Mass Workers Comp. Rep. ____ (Calliotte, J. 10/5/16). The Employee appeals a decision awarding her a closed period of Section 35 benefits, based upon an earning capacity $360.00 per week. The Reviewing Board affirmed, but amended the earning capacity to be based on the minimum wage at the time of the order, to $320.00. The Reviewing Board stated that without a factual source or reasoned explanation, an award above the minimum wage cannot be supported.


Joel M. Lubonski v. K. Mooney Construction, Inc., ____ Mass Workers Comp. Rep. ____ (Koziol, J. 10/14/2016). The Insurer appealed a decision awarding Section 34A, and medical benefits for medical and psychiatric care, arguing that no medical evidence causally related the employees psychiatric condition and treatment to the work injury. The Employee agreed. The Reviewing Board also agreed, reversing the award of benefits for the psychiatric condition and treatment. The award of Section 34A and medical benefits for the physical injuries was not appealed.