Expert Vocational Testimony in Massachusetts Workers’ Compensation
Do workers’ compensation judges have to adopt expert vocational testimony in determining whether or not to award benefits? In a recent case, the Massachusetts Workers’ Compensation Reviewing Board was asked to reconsider its prior holdings that judges do not need to talk about or adopt expert vocational testimony so long as they make clear they considered that testimony.
In the case, a 59-year-old employee had received his GED in 1974 before beginning work as a pre-set-up operator. He hurt his back while bending a little over 15 years later. He worked in a light duty capacity for two more years when he had to leave work because of back pain. In 1991, he started collecting partial incapacity benefits, which he could receive for 600 weeks. When those ran out, he filed for total incapacity benefits and medical benefits. A conference was held, after which his claims were denied. He appealed.
At the hearing for his appeal, he asked two vocational rehabilitation experts to testify. The judge did not adopt their opinions, but did note them as witnesses and recorded their reports as exhibits. The judge noted that the employee had taken a job as a bartender part-time. The employee had testified he no longer liked the job and was working twelve hours a week just trying to “kill time.” He also testified he left the job because of the back pain, but the judge didn’t credit that testimony.
The judge adopted a neurologist’s medical opinion that the employee could do some light work though he was partially disabled. The neurologist had opined that the employee’s bartending fit within those parameters, as did other jobs like being a cashier or motel clerk. The judge found he had the capacity to earn only $120 per week working 15 hours per week. Because he had already collected the maximum amount of partial incapacity benefits he could collect, the judge didn’t award him anything and denied his claim.
The employee’s appeal was based on the argument that the administrative judge should have made specific findings about the vocational rehabilitation experts. He cited to case law. The reviewing board explained that the case law he relied upon didn’t say that a judge had to make findings about the testimony of vocational rehabilitation experts. In fact, it stated that it didn’t matter that the administrative judge had failed to mention the vocational expert’s evaluation.
The reviewing board explained that in all workers’ compensation claims, there must be a clearly visible factual basis for a judge’s findings. In this case there was a factual source and rational basis for the judge’s determination that the employee was partially incapacitated: the employee had testified he had left the bartending job because he didn’t like it, not because he couldn’t do it and the neurologist had testified he could do light work.
The reviewing board reasoned that since the administrative judge had listed the vocational rehabilitation experts as witnesses and included their reports as exhibits, she had considered their opinions. It declined to modify its rule that judges need not make specific findings about vocational rehabilitation experts’ opinions.
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