Massachusetts Workers’ Compensation for Depression After Physical Injury

The Reviewing Board of the Massachusetts Department of Industrial Accidents reversed a denial after the hearing judge had denied the employee’s claim for depression after a work-related injury to his right arm and shoulder. The Board recommitted the claim and reminded the hearing judge to apply the correct standard to decide whether the physical injury was the major cause of the psychiatric injury.

Donald Conners was injured on the job on June 7, 2007. The insurer, Liberty Mutual Insurance Company, and the employer, Bay State Insulation, accepted the employee’s right shoulder injury and paid § 34 benefits until their statutory exhaustion. Following a conference before Judge Frederick Levine on September 13, 2010, Liberty/Baystate was ordered to pay the employee partial incapacity compensation and medical benefits from June 4, 2010, to date and continuing. The judge also denied Liberty/Baystate’s discontinuance complaint.

On May 5, 2011, the employee moved to join his claim for a psychiatric injury allegedly resulting from his accepted 2007 industrial accident. The judge allowed the motion. In her decision, the judge credited the employee’s testimony that he experienced limited relief from his shoulder surgeries, had constant pain and limited use of his right arm and shoulder, and could not “raise his right arm above elbow height.” The judge adopted the medical opinion of the impartial medical examiner, Dr. Richard Alemian, that as a result of his work-related right shoulder injury, the employee suffered from a dislocation of his right shoulder with a corresponding rotator cuff tear, two failed surgeries, a five-pound right arm lifting restriction, and an inability to perform overhead work.

The judge then addressed the employee’s claim that he suffered a psychiatric injury as a consequence of his physical industrial injury. She adopted the opinion of Dr. Albert M. Drukteinis “that the industrial accident of June 7, 2007 is ‘a major, even if not predominant, cause for the employee’s Major Depressive Disorder and Anxiety Disorder.’ ” She also adopted Dr. Drukteinis’ opinion that, prior to June 7, 2007, the employee suffered from a “non-work related psychiatric disorder of Alcohol Dependence which combined with his work-related depression and anxiety to render him essentially nonfunctional.” Finding that the predominant cause of the employee’s psychiatric condition after the injury was his prior psychiatric condition, the judge denied the employee’s claim for a psychiatric injury and § 34A benefits. Accordingly, on the basis of the employee’s shoulder injury alone, the judge ordered Liberty/Baystate to pay the employee the aforementioned weekly incapacity benefits, along with medical benefits and an enhanced attorney’s fee.

The employee appeals, arguing the judge applied the wrong standard to deny his claim for a psychiatric injury as a sequel of his work-related physical injury. The Reviewing Board agreed. The Board found that Mr. Conners’ case was analogous to Cornetta’s Case, 68 Mass.App.Ct. 107 (2007). Cornetta stands for the proposition that the “predominant cause” standard found in § 1(7A) applies only to “pure” mental injuries, and it does not apply to mental or emotional injuries that result from a work-related physical injury. Cornetta also involved, as here, an employee with a prior psychiatric condition that combined with a physical work-related injury to cause a “resultant condition.” Id.; G. L. c. 152, § 1(7A)(fourth sentence). In such a case, the “major cause” standard applies. Since the judge adopted a medical opinion that satisfied the major cause standard, the employee’s “Major Depressive Disorder and Anxiety Disorder” should have been found to be compensable under the Act. Cornetta, supra at 118-119. Therefore, the Reviewing Board reversed the judge’s finding to the contrary and recommitted the case for her to address anew the employee’s § 34A claim.

If you are hurt at work, you may be entitled to workers’ compensation benefits for both physical and psychological harm. 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.