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Massachusetts Insurer Cannot Re-Litigate an Issue Already Conceded

In March, an insurer appealed a fourth workers’ compensation decision in Michelle Grant v. Fashion Bug. The appeal arose from an award of permanent and total incapacity benefits. The insurer argued that the judge failed to address the “combination” injury defense.

The injury giving rise to this case happened in 2004 when the employee dropped a thirty-pound wooden block on her right foot, leading to right toe pain. Her treating physician looked at her MRI report to diagnose “right post-traumatic hallux rigidus”. The insurer questioned the causal relationship between the injury and the work, noting that she had told a doctor that she dropped a dish on her foot the previous year and had a hematoma drained, which improved her symptoms before the wooden block injury at work.

An impartial medical examiner opined that the employee was experiencing “a contusion of the right food and arthritis.”  He also said that the previous injury from dropping a dish on her foot had resolved and degenerative changes in the form of arthritis was not uncommon for someone of her age. The judge found the impartial doctor’s opinion inadequate and more evidence was submitted by other doctors.

The judge adopted other doctors’ opinions when he awarded a closed period of total incapacity benefits and ongoing partial incapacity benefits. The other doctors diagnosed post-traumatic hallux rigidus of the employee’s right foot, right first metatarsophalangeal degenerative joint disease, and sesamoiditis and metatarsalgia. The insurer did not appeal this first decision.

In 2008, the insurer filed in order to discontinue the employee’s partial incapacity compensation on the grounds that this was a “combination injury” that included problems resulting from the employee’s mild arthritis. The employee argued that her work-related condition had gotten worse and requested total incapacity benefits. The insurer cited the impartial medical examination as the basis for its claim that it was a combination injury. The judge again did not discuss the combination injury defense raised by the insurer, finding that the employee’s injury had gotten worse. The judge also adopted the employee’s doctor’s opinion that dropping an object on the metatarsal-phalangeal joint commonly caused arthritis in that joint.

The insurer appealed the second hearing decision, arguing that the judge erred in failing to consider the impartial medical examiner’s testimony. That appeal was decided in the insurer’s favor and the issue was remanded to the judge.

After that appeal, the judge considered the testimony regarding arthritis from the impartial medical examiner. However, he repeated his adoption of the medical opinions of the other doctors that found in favor of the employee. He again failed to consider the combination injury defense, but the insurer did not appeal.

The employee then claimed permanent and total incapacity benefits from 2011 onward and was examined by a different impartial medical examiner. This doctor was not deposed, but his report was admitted into evidence as the only medical evidence. Neither party objected to the judge’s finding that the medical issues were not complex and that no other medical reports need be obtained.

The insurer again raised the combination injury defense and pointed out three statements by the impartial examiner in support of this defense: (1) the doctor mentioned the platter being dropped the year before the work injury, (2) the doctor noted that before she was injured in the workplace, she had bilateral asymptomatic degenerative changes in both her toes, and (3) the doctor found the work injury aggravated and accelerated the worsening of the prior condition. The judge adopted the impartial examiner’s opinions and credited the employee’s vocational expert who said that the employee was unable to work.

The insurer again appealed, arguing that the judge should have addressed the combination injury defense. The insurer also argued that because it was a combination injury, the employee bore the burden of proving her workplace injury was a “major cause” of her disability, but since she didn’t, the decision should be reversed.

The reviewing board ruled that while the employee bore the burden of establishing her right to compensation including causation, this burden only applied to elements that weren’t already conceded by the insurer. The insurer did not appeal the judge’s first decision and therefore accepted the judge’s findings that the employee’s injuries were causally related to her workplace injury and not the result of a combination injury. The insurer could not re-litigate an issue that was already settled.

If you have suffered an injury in the workplace, we can help you resolve the legal issues that arise in this context so that you can rest and recover. If you are concerned about your employer’s workers’ compensation coverage, ask the experienced Massachusetts workers’ compensation attorneys at Kantrovitz & Associates what you should do. Call us at 617-367-0880 or contact us via our online form.

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