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DIA Reviewing Board in Boston rules that “worsening” of condition must be causally related to the original work injury

In a recent decision, the Department of Industrial Accidents Reviewing Board in Boston, ruled that in a claim for section 34A permanent and total disability benefits, where a previous decision found the employee partially disabled, the Employee has the burden of proving, not only that his condition “worsened” to the point of rendering him totally disabled, but also that the worsening must be shown to be causally related to the original work injury, and not due to other factors, such as age, or a subsequent injury.

Stock photo boston 1In this case, the employee originally sustained a work injury to his back while lifting a garage door on 2/12/07. A claim for benefits was filed and the matter was ultimately heard at hearing. The Administrative Judge, in his decision, ordered the Insurer to pay section 34 benefits for a closed period, followed by ongoing section 35 partial disability benefits. The employee collected section 35 benefits until a claim was filed for section 34A permanent and total disability benefits on 4/1/11.

Ultimately, the claim for section 34A benefits was heard at hearing, and the Administrative Judge ordered permanent and total disability benefits in his decision. The Insurer appealed this decision on several grounds. One such ground was that the Insurer argued that the Employee failed to establish that he suffered a work-related worsening of his condition since the previous order of partial disability. The Reviewing Board agreed.

Citing Foley’s Case, 358 Mass. 230, 232 (1970), the Reviewing Board noted that following a previous ruling where the employee was found to be partially disabled, the employee carries the burden of demonstrating that his/her condition worsened “not due to advancing age,” but owing to his industrial accident.

In other words, it is insufficient to merely establish that an employee’s condition got worse. More is needed. In addition to showing the worsening of the condition, the employee must also show that this worsening was due to the original injury, and not due to other, unrelated factors. For example, many injuries get worse over time due to completely unrelated factors, such as advancing age. In the present case, the Insurer argued that the evidence tended to show that the employee’s advancing age, and general decline in health, led to the worsening. The Reviewing Board ruled that this is insufficient to establish the “worsening” requirement.

The Reviewing Board then indicates that a finding of a work-related worsening must also be made in conjunction with an expert medical opinion. It is insufficient for the Judge to make this ruling based solely on the Employee’s subjective complaints, citing Docos v. T. J. McCartney, 25 Mass. Workers’ Comp. Rep. 39, 42 (2011).

In the end, the Reviewing Board recommitted the case back to the hearing level, for further finding consistent with their opinion.

Situations like these come up often, where an employee sustains a work injury, is put on partial workers’ compensation benefits, and then the condition progresses to the point where the employee can no longer work. It is quite important for an injured employee to have an experienced workers’ compensation lawyer representing them. Troupe Law Office has over 40 years of experience in representing injured employees in Massachusetts workers’ compensation cases. Call us any time.