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Injured Worker With Work-Related Pre-existing Condition Entitled to Benefits for Subsequent Injury

A workers’ compensation insurance carrier may argue that benefits should be denied to an injured worker if the worker had a pre-existing injury, or that the worker must show that the latest injury is the “major cause” of the worker’s current disability in order to receive benefits.

The claimant in one such case was a 28-year-old carpenter/laborer originally from the Dominican Republic. He has difficulty communicating in English.

On October 26, 2009, while working on a roof and maneuvering a sheet of plywood, a gust of wind yanked the board away from him, causing pain in his shoulder. The same day, he hit his finger with a hammer. He went to Bay State Medical Center, where he was treated for the injured finger and a dislocated shoulder.

He returned to work on November 19, 2009 and was moving a bathtub down a flight of stairs with the help of another employee when the other employee slipped and left him holding the full weight of the tub. He felt a pop in his right shoulder. He went to the emergency room at Mercy Medical Center the next day, but left before seeing a doctor because the ER was so crowded.

When he told his employer he had hurt his shoulder, he was told to go home. He later returned to work and continued to work for eight months, sometimes going home early due to pain. He didn’t go back to the hospital because he was concerned about payment.

On July 13, 2010, he returned to the ER at Mercy Medical Center, was seen November 10 at Baystate Medical Center, and diagnosed with a shoulder strain. On November 28, he returned to Baystate and was treated for a right shoulder dislocation. An MRI taken on December 7 revealed abnormalities that could be degenerative or post-traumatic. On March 3, 2011, he had surgery. He has not worked since November 10, 2010.

He applied for and was awarded section 34 total incapacity benefits by Administrative Law Judge (ALJ) Poulter. The insurance carrier appealed to the Review Board.

The Review Board, in its decision at Board No. 037158-09, issued May 22, 2014, found some inconsistency in the record because the expert physician, Dr. Kenny, relied on a medical record referring to a six-year history of shoulder problems, which the claimant denied and which the ALJ found not to be credible, since the history was only based on a single disputed reference in a medical record. She inferred that the inaccurate record resulted from the claimant’s difficulties with English and a prior physician not understanding him and misrecording his medical history.

The ALJ also found credible the claimant’s testimony at the hearing that the two shoulder injuries, the plywood incident and the tub incident, were his first shoulder problems.

The insurer argued that, once the evidence showed a pre-existing condition, in this case the shoulder injury caused by the plywood incident, the claimant had to show that the second injury, caused by the tub incident, was the major cause of his disability, as required by Massachusetts General Laws chapter 152, section1(7A).

The ALJ rejected this contention, and ruled that, once the employee showed that the prior condition was also the result of a work injury, he did not have to meet the heightened standard to show that the second injury was the major cause of his disability. The judge denied the insurance company’s appeal of the employee’s award of benefits for his shoulder injury.

While you concentrate on recovering from your work-related injury, let the lawyers at Kantrovitz & Associates focus on making sure you obtain the benefits that you and your family deserve. For a free consultation and evaluation of your case, contact Kantrovitz and Associates today.

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