Workers Compensation Summary of Reviewing Board Cases – April 2017

Commentary by the Judge

Theresa Saia v. Grow Associates, Inc., ____ Mass. Workers Comp. Rep. ____ (Long, J. 4/11/2017). In the decision, the Administrative Judge commented that the Employee appeared uncomfortable during testimony and changed position throughout. However, this perception was not memorialized in the record at the time of the hearing. As a result of the Administrative Judges commentary in the decision, and the denial of the Insurers request to modify, discontinue or recoup benefits, the Insurer appealed arguing that the Administrative Judge misstated the medical opinion, substituted his own opinion, rejected the Section 11 Impartial Physician opinion, and failed to make findings regarding the Employees prior employment position. The Reviewing Board found the Administrative Judges observation to be harmless error, and found that upon a review of the entire record supported the Administrative Judges decision.

Successive Insurer Rule

In this multi-insurer matter, Mary Wambugu v. Radius Healthcare Ctr. At Millbury et al., ____ Mass. Workers Comp. Rep. ____ (Koziol, J. 4/24/2017), the employee and insurer Atlantic Charter (the insurer for the Employees initial injury) cross-appealed a decision ordering Atlantic Charter to pay for right shoulder treatment. On 10/10/2007, the Employee injured her left shoulder and right knee when she fell down stairs. She received Section 34 benefits from Atlantic Charter until 3/6/2008. Starting 5/24/2008 through 1/10/2011 the employee worked for Christopher House, insured by AIM (the third insurer, National Union Fire Ins. was not ordered against, and did not appeal). On 12/17/2012, a lump sum agreement was approved between the Employee and Atlantic Charter, accepting left shoulder injuries, and a recovered right shoulder injury. In 2013, the Employee filed claims against Atlantic Charter for medical treatment to both left and right shoulders, and in early 2014, claims against AIM and National Union Fire seeking right shoulder treatment, and Section 34A benefits. After a combined hearing with all three insurers, the Administrative Judge Ordered Atlantic Charter to pay for right shoulder treatment.

AIM argued that there was not a direct appeal against it because the board number utilized was the Atlantic Charter board number. The Reviewing Board disagreed as the case was tried as one proceeding and a single decision issued, and when there are successive insurers the rule has been that an appeal by one is an appeal by all, and nothing unusual requires deviation from that rule.

Atlantic Charter argued that the judge failed to apply the successive insurer rule. The Reviewing Board agreed, that to the extent that treatment was ordered for the right shoulder, it must be reversed. In looking at the testimony of the adopted medical evidence, the Reviewing Board found the Administrative Judge mischaracterized the medical opinion, and substituted his own opinion. As a matter of law, the Reviewing Board found that the adopted portions of the medical opinion established that the Employee suffered an injury to her right should during her work at Christopher House. The Reviewing Board reversed the decision in part, and recommitted the case for further findings of facts and rulings of law addressing AIMs defenses, and the remainder of the Employees claim.