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Possible Failure of Electronic Filing Service Requires Recommittal of Employee Claim

Courts, including the Reviewing Board that rules on appeals in Massachusetts workers’ compensation cases, are doing their best to update court services by allowing the use of electronic systems for accepting and storing court documents.

These do not always work perfectly.

An employee’s attorney may submit medical records or other documents to the court electronically and then be surprised at the hearing to find that the administrative judge (AJ) has not received the documents. The AJ may have arrived at a decision and denied benefits to the employee, without having reviewed the evidence the employee submitted.

In one such instance, in Board No. 014335-08 and 020198-10, the Reviewing Board considered the case of an employee who had filed a claim for workers’ compensation benefits for physical and psychological injuries she suffered on the job when she was beaten on the head and struck in the face by patients at Westwood Lodge Hospital.

The AJ had denied benefits, and the Reviewing Board was considering her appeal.

The employee said she had timely submitted her additional medical evidence to the AJ by electronically forwarding her 10-exhibit submission through the use of an encrypted record transmission service, “YouSendIt.” The receipt for the electronic service shows that the documents were sent to both the AJ and his assistant.

However, the AJ’s decision did not list any of the records as exhibits, and the AJ did not mention any of the employee’s additional medical evidence in his decision. The department’s document management system, OnBase, also showed no indication that the employee’s additional medical evidence had been incorporated into the system.

The insurer, Indemnity Insurance Co. of North America, had received the employee’s records and did not raise any objection to their admission into evidence at the hearing before the AJ. The insurer’s counsel only contacted the employee’s counsel to express concern that the records were out of order and not properly tabbed. This appeared to have been a PDF bookmarking problem.

The Reviewing Board could not discern whether or not the ALJ had reviewed the employee’s additional evidence.

The insurer asked the Reviewing Board to affirm the ALJ’s decision to deny benefits. The insurer’s position was that the evidence was cumulative and would not have added anything to the ALJ’s analysis that wasn’t already provided by the insurer’s additional medical evidence, which the ALJ had reviewed before rendering his decision. The insurer conceded that its own evidence did not include records from the employee’s treating psychiatrist and her treating therapist, a Licensed Clinical Social Worker.

The insurer also argued that the employee’s additional records were not admissible medical opinion on the issues in dispute: disability and causation.

The Reviewing Board rejected the insurer’s arguments for several reasons, finding that the rules of evidence apply to workers’ compensation hearings and that the insurer had waived any objections to the evidence by not making its objection at the hearing. Even though the ALJ had not received the records, the insurer had, and therefore its opportunity to object was at the hearing, and it had failed to do so.

The Reviewing Board recommitted the matter for further hearing, including consideration of the employee’s additional records. The Board advised the parties that the best practice was to check the OnBase system within 14 days of making a submission to make sure it was received and entered in OnBase.

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 us Kantrovitz and Associates today.

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