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Massachusetts’ Restaurant and Bakery Worker Suffers Injury

Workers in the Massachusetts food service industry are susceptible to many types of injuries, particularly injuries involving repetitive motion. If you are injured while working in a catering business, bakery, food warehouse, or restaurant, you may be eligible for workers’ compensation benefits. A knowledgeable workers’ compensation attorney can help assess how an administrative judge will view your case.

In a recent case (Karen Craig v. Bombay Duck), an employee and one of several insurers appealed after an administrative judge awarded ongoing benefits from the date a prior injury recurred. The employee was 49 years old, working at a restaurant as a manager and a bakery as a baker. While lifting three bags of flour at the bakery, she hurt her right shoulder and neck.

A shoulder MRI revealed a tear and a lateral disc protrusion in the employee’s spine. She was treated with cortisone shots and a cervical spine epidural steroid injection, plus physical therapy. Her pain symptoms were reduced by the injection and therapy. The neurosurgeon treating her let her get back to work without restrictions four months after the injury. An orthopedist restricted her to lifting 50 pounds, but didn’t restrict her as to repetitive motion. The employer was aware of this restriction.

When the employee came back to the kitchen, she was made part of the staff and had to fill 500 containers with spinach dip each day. The restaurant permitted an unlimited number of breaks, but the employee had to make sure she completed all the work. She experienced the same problems she had experienced initially after the original injury. Examined by an impartial physician, she was found to be partially impaired on a temporary basis. The physician also found she was only able to do only sedentary activities. He testified that she could engage in sedentary employment even when she was in pain, so long as she didn’t lift her right arm above her shoulder.

The judge found the employee only temporarily disabled, largely on the basis of the doctor’s report and testimony. The judge also found that based on her customer service background, she could earn minimum wage in a sedentary work capacity.

The employee argued that since the judge adopted her treating physician’s finding that her pain had returned to baseline, it was inconsistent for the judge to also find her only partially disabled. The insurer argued that the judge didn’t apply the successive insurer rule correctly and didn’t interpret the medical evidence properly.

The Massachusetts Reviewing Board disagreed. It explained that the judge adopted the doctor’s finding only in order to resolve whether the employee’s present symptoms were caused by her work at the restaurant or her earlier injury at the bakery. The administrative judge didn’t find that a new injury was caused by the new activities. Rather the employee suffered a recurrence of the earlier injury at the bakery.

The appellate court explained that determining earning capacity is separate from determining injury. The judge in a workers’ compensation case can accept medical testimony based on what he or she finds credible. The judge had relied on the doctor’s testimony for one issue. He then found that the employee had a prior sedentary job in customer service in order to decide she deserved minimum wage.

The reviewing board explained that the judge is required to make a realistic appraisal of how the medical effect of an injury will impact the individual. The judge’s findings in this case were supported by the evidence and therefore the board upheld them. If you believe you may need to file for workers’ compensation benefits, contact an experienced Massachusetts attorney for help. You can contact the experienced Massachusetts workers’ compensation attorneys at Kantrovitz & Associates for help. Call us at 617-367-0880 or contact us via our online form.

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