Workers Compensation Summary of Reviewing Board Cases, December 2016


Causal Relationship

Andrew ORourke v. New York Life Insurance, ____ Mass. Workers Comp. Rep. ____ (Calliotte, J. 12/7/2016). The Insurer appealed a Decision awarding ongoing Section 34 benefits and Section 13 and 30 medical benefits, including two surgeries. The Insurer argued that the Administrative Judge did not make adequate findings as to the physical injury with respect to disability and causal relationship, and as a result the findings were also inadequate as to the psychiatric sequelae. The Employee was injured when a magnet weighing approximately 8-12 oz. fell from a door jamb, striking her on her head. Thereafter, the Employee complained of multiple injuries stemming from this strike, including a psychiatric sequela. The medical record was opened due to complexity. In the Decision, the Administrative Judge adopted portions of the opinion of multiple doctors, and found causal relationship. The Reviewing Board found no cited medical evidence addressing causation for the physical injuries, and therefore found the Hearing Decision as to causal relationship to be arbitrary and capricious. Due to the fact that a psychological sequelae must be causally related to the work related physical injuries, there was insufficient findings of causation as to this issue. The Decision was vacated, and referred to reassignment as the Administrative Judge at Hearing was no longer with the Department.

Of note is that the Reviewing Board could not find that the Employee made a specific claim for psychiatric sequelae of her physical injury, but as the Insurer did not dispute that this was an issue the Reviewing Board deemed it waived.

Independent Contractors/Employees

Ives Camargo v, Publishers Circulation Fulfillment, Inc., ____ Mass. Workers Comp. Rep. ____ (Harpin, J. 12/9/2016). This case addressed whether c. 149 148B, is applicable to the employee/independent contractor determination in workers compensation cases, and if so, whether that statute is compatible with the MacTavish/Whitman factors. In a cross-appeal, the Employee argued that M.G.L. c. 149, 148B should have been analyzed alongside the MacTavish/Whitman factors. After a review of the law, the Reviewing Board found that M.G.L. c 149, 148B(a)(1-3) is not applicable in this instance. The Reviewing Board also reviewed the facts of the case using the MacTavish/Whitman factors, and upheld the Administrative Judges decision that Ms. Camargo was not an employee. As to the Insurers fraud assertion, the Reviewing Board held the Administrative Judge correctly considered the weight of the facts he found and upheld the denial.

Medical Opinions Adopted

Francis Williams v. Molloys Garage, ____ Mass. Workers Comp. Rep. ____ (Calliotte, J.12/29/2016). After Hearing, the Administrative Judge awarded continuing Section 34A benefits. The Insurer appealed arguing that the Administrative Judge did not take into account the Employees non-work-related knee problems and the extent it may have contributed to disability. After review of the Insurers four historical complaints for modification or discontinuance and the medical evidence before the Administrative Judge, the Reviewing Board affirmed the Decision. The Reviewing Board affirmed that, when 1(7A) is not in play, the Administrative Judge must consider the effects of the work-related injury alone when determining disability and incapacity. In this instance, after reviewing the doctors report and deposition, the Reviewing Board found that the diagnosis and disability related to the work-related back injury only. The Reviewing Board noted that simply discontinuing narcotic use does not necessarily indicate improvement.


Jose F. Rocha v. LM Heavy Civil Construction LLC, ____ Mass. Workers Comp. Rep. ____ (Koziol, J. 12/9/2016). The Employee appealed a Decision modifying the Employees benefits to Section 35 as of June 19 2015, the date of the Impartial Examination. The Reviewing Board addressed two of the Employees three arguments and found vacation of the Decision was warranted. First, the Employee argued that the decision to reduce his benefits as of June 19, 2015 was not grounded in evidence because the Impartial Examiner on that date found he was totally disabled, and it was not until September, 2015 that his treating physician provided physical restrictions on which the Administrative Judge based the Decision. The Reviewing Board agreed, finding the modification tied to June 20, 2015 was not grounded evidence and could not stand. Second, the Employee argued the Administrative Judge erred in finding he was not currently treating, despite evidence that he continued to treat and his treating physician in April, 2016 questioned the need for a third surgery. The Reviewing Board agreed, vacated the Decision, and recommitted the matter.


David Roberts v. Thomas G. Gallagher, Inc., ____ Mass. Workers Comp. Rep. ____ (Koziol, J. 12/21/2016). The Insurer appealed a decision awarding the Employee Section 34, and thereafter, at exhaustion, Section 34A benefits. The Administrative Judge awarded the Employees benefits, in part, after finding that the Employee could not perform even a part-time job because the Employee would be enrolled in a time-intensive vocational rehabilitation plan. The Insurer argued that the evidence did not support a permanent and total disability finding; the earning capacity was not properly analyzed; and the conclusions made were based on internally inconsistent findings. The Reviewing Board upheld the Administrative Judges decision, noting that if the Insurers request to find a full-time minimum wage earning capacity was allowed, it would force the Employee from participating in the vocational rehabilitation program. The Reviewing Board explained why this would be contrary to the Act, addressing each of the Insurers arguments.