Douglas Ballou v. Briscon Electric, ____ Mass. Workers Comp. Rep. ____ (Fabricant, J. 12/6/2017). The Insurer appealed a decision awarding the Employee Sections 34 and 35 benefits, as well as Sections 13 and 30 benefits, including surgery and rehabilitation. After Hearing, the Administrative Judge found the Employee suffered a repetitive injury, that combined with a pre-existing condition to prolong disability and treatment, and that it remained a major but not necessarily predominant cause of disability and need for treatment.
The Insurer argued that errors required reversal and dismissal. The Reviewing Board recommitted the initial liability issue for further findings, and reversed the award of Sections 13 and 30, including surgery.
The Insurer argued that the Employee did not meet the causation standard under Section 1(7A). First the Insurer argued that the Employee did not show the pre-existing back injury was compensable. The Reviewing Board found the Employee waived this issue after arguing that it was irrelevant because the Section 1(7A) argument is defeated on the major cause element. Second, the Insurer argued that the major cause opinion was based on assumed work conditions, not credited by the Judge. The Reviewing Board agreed there may not be sufficient evidence, given the Administrative Judge adopted the opinion of the 11A Report, but as to the repetitive activities asserted by the Employee to the 11A Impartial Physician, the administrative Judge found that the employee exaggerated somewhat the repetitive nature of his carrying. The issue was recommitted to make specific findings of fact as to the employees repetitive activities.
Lastly, the Reviewing Board agreed that the medical benefit award was without a medical opinion foundation, as there was no medical evidence addressing that the surgery was casually related to the employees work injury, reasonable, or adequate.