In Massachusetts, an employee may receive total incapacity workers’ compensation benefits despite an adverse ruling if an employer admits to liability for the individual’s harm. In McCarthy v. Peabody Properties, Inc., a Massachusetts woman injured her right knee when she fell while performing her duties as a construction supervisor in 2002. About two months later, the woman underwent arthroscopic surgery on her knee. Sadly, the worker suffered permanent throat injury from the intubation that was conducted as part of her surgical procedure. In addition, the employee apparently underwent a second surgery on the same knee in June 2003. During the second surgical procedure, the anesthesiologist allegedly caused her to endure permanent nerve damage when he incorrectly administered a spinal anesthesia. As a result, the employee suffered pain and numbness in her left leg. In addition, the woman underwent right knee replacement surgery several years later.
The woman’s employer accepted responsibility for the worker’s knee injury and paid her §36 and §34A workers’ compensation benefits. The employer later raised a §1(7A) affirmative defense arguing that the woman’s disability was caused by her pre-existing osteoarthritis that was aggravated by her work injury. The Department of Industrial Accidents Reviewing Board eventually ruled that the woman was not entitled to recover benefits because her work injury was not a major cause of her disability.
Instead of appealing, the employee filed a new § 34A benefits claim. After a third workers’ compensation hearing, the employee was awarded § 34A permanent and total incapacity benefits beginning on the date the evidence closed in the first hearing. In addition, the judge ordered that the employee receive §§13 and 30 medical benefits for treatment of her spine, left leg, and throat as well as her right knee replacement procedure. The employer then filed an appeal with the Department of Industrial Accidents Reviewing Board.
On appeal, the worker’s employer argued she was not entitled to benefits due to the principles of res judicata. According to the employer, the woman failed to establish that she was entitled to §34A benefits in a prior hearing or request compensation for her knee replacement at that time. Because of this, the employer claimed the worker was permanently barred from recovering workers’ compensation benefits.
According to the Board, liability for the worker’s knee injury was established when the employer stipulated to it. At the close of the second hearing, the Board said this stipulation became a final judgment. Since liability was established, the Board stated the worker was free to make a new incapacity claim for the period beginning after the initial hearing took place. As a result, the Board stated its decision following the second hearing only barred the worker from recovering for her incapacity from the date of her work injury through the close of the first hearing.
Next, the Board found that the employer failed to challenge the workers’ compensation judge’s finding that the woman’s right knee injury was a major cause of her disability after the close of the first hearing. The Board also dismissed the employer’s claim that the worker’s knee replacement surgery was a subject that should have been decided at the first hearing because it occurred more than 2 years later and the employee’s physician did not order the medical procedure prior to that time.
Ultimately, the Department of Industrial Accidents Reviewing Board affirmed the judge’s order granting the employee § 34A benefits and also awarded her attorney’s fees.
If you suffered a knee injury at a Massachusetts workplace, you should discuss your rights with a dedicated Boston workers’ compensation lawyer as soon as you are able. The caring attorneys at Kantrovitz & Associates, P.C. are available to help you recover the financial compensation you deserve based on the severity of your work-related harm. To discuss your right to recover workers’ compensation benefits with a dedicated lawyer, contact Kantrovitz & Associates, P.C. online or give us a call today at 800-367-0871.
McCarthy v. Peabody Properties, Inc., Department of Industrial Accidents Reviewing Board No. 07656-02 (March 20, 2015)