Massachusetts Academy of Trial Attorneys
AVVO Rating 10.0 - Top Attorney
Avvo Clients' Choice Award 2022
Avvo Reviews
Massachusetts Bar Association
Boston Bar Association

Massachusetts Workers’ Compensation Claimant Must Prove Worsening Symptoms Are Not Due to Age

When an employee’s work-related medical condition grows worse, the insurer may contest the claim on the basis that the worsening is caused not by the original work injury, but by the employee’s growing older. The employee has the burden of proving that he or she should continue to receive benefits because the worsening of the condition is not caused by aging, but by the work injury.

An example is an employee’s pain growing more severe, requiring stronger doses of pain medication. Even when the pain, in the opinion of the examining physician, is out of proportion to any objective physiological findings, if the physician finds the employee to be credible, he or she may form an expert opinion that the employee can’t work based on that pain report.

However, the judge, in the decision awarding benefits, needs to make specific findings that the employee’s underlying work-related injury grew worse for reasons other than the employee’s growing older. The judge’s analysis is critical to a proper foundation for the award of benefits.

The Department of Industrial Accidents Reviewing Board, at Board No. 003454-07, Scott Hibbard v. Hensley Enterprises, considered an insurer’s appeal from a decision ordering payment of ongoing benefits to an employee pursuant to § 34A.

The employee had injured his back at work by lifting a garage door. He was off work for six months and then returned to light duty with the same employer, working nine hours per week. Several months later, he was terminated by the employer and received unemployment compensation for a while.

He then filed a claim for workers’ compensation benefits. The judge in the hearing decision in 2009 ordered § 34 temporary total incapacity benefits for several months and § 35 partial incapacity benefits after that up to the date of the Reviewing Board decision, about seven years, and ongoing.

In 2011, the employee filed a claim for § 34A permanent and total incapacity benefits. Following a conference on that claim, the judge had ordered the payment of ongoing § 34 benefits starting as of the date of the conference, approximately three years prior to the Reviewing Board decision.

The Reviewing Board looked at the § 11A impartial medical examiner’s opinion by Dr. David C. Morley, Jr., from 2008, evaluating the employee’s initial claim, and the same doctor’s 2011 opinion following the examination for the present claim.

Dr. Morley reported that the employee had sustained a work-related lumbar strain superimposed on preexisting multiple level disk degenerative changes and lower level lumbar facet degenerative changes. The doctor found the employee to be incapable of performing any work based on his functional level and complaints of severe pain. The doctor also thought the condition could be permanent.

The doctor, in his report, had found the employee’s pain to be so much worse that when the employee appeared for the examination, he was bent over and shaking because he was so uncomfortable. Unfortunately for the employee, however, the judge who reviewed that report did not make specific findings in his own decision that the worsening symptoms were due to the work injury, and not to the employee’s advancing age.

The Reviewing Board vacated the award of § 34A benefits, reinstated the award made in the conference order, and recommitted the case to the original judge to make adequate findings consistent with the Reviewing Board’s decision. If the judge made adequate findings that the employee’s symptoms were from the work injury and not age, the employee could receive the benefits he was requesting.

If you are hurt at work, you may be entitled to workers’ compensation benefits. An experienced Massachusetts workers’ compensation attorney can evaluate whether you have a sound claim and fight to make sure that your employer and its insurer follow the rules or give you guidance if there is no insurance available. Contact us by calling 800-367-0871 or using our online contact form.

Client Reviews
Steve is very knowledgeable and is able to answer any questions you might have, explaining it in language you can understand. He is very empathetic and listens to you. Mary
I just wanted to thank Steve for all he did for me. He stayed in touch, he was VERY prepared, he explained every step to me clearly, and he made me feel comfortable. He is a really down to earth guy, who CARES about the people he represents. I can’t say recommend him enough. Please feel free to use this as a testimonial. Joanne M
Steve, I just wanted to thank you again for all your hard work and effort on my behalf. You really made a stressful situation bearable and I never felt like you weren’t right on top of things, which I very much appreciate. You are a good man my friend and for that I thank you. Bobby