In Massachusetts workers’ compensation cases, the Department of Industrial Accidents may require workers to produce medical proof that (1) an employee was injured at work, (2) the injury has disabled the employee from working, and (3) medical treatment is causally related to the injury, and is reasonable and necessary. An Administrative Judge will make a temporary, but binding decision at a pre-hearing conference on cases before them. If either side is unhappy with the Conference Order, it may appeal to a full evidentiary hearing.
On appeal, when a worker is still disabled, an impartial medical examiner will be appointed by the Department of Industrial Accidents who will conduct a physical examination of the injured worker and render a medical report. If the impartial’s report is inadequate, the judge can open the medical evidence to allow each party to submit further evidence on medical issues.
In a recent case, a Massachusetts employee made a claim for surgery and treatment of her right shoulder. However, the impartial medical examiner did not offer an opinion about whether surgery was necessary. The employee moved to open the medical evidence and also made a motion to depose the examiner. The administrative judge granted the latter motion and deferred the former. The employee’s attorney initially agreed to the deposition.
However, the employee’s attorney did not follow through by asking questions related to causation and need for surgery at a deposition. Instead the attorney decided not to depose the examiner at all and again made a motion to open the medical evidence. The judge denied the motion this time. The judge found the workers’ current disability was not causally related to her prior work injuries.
The employee argued on appeal to the reviewing board that the judge erred by denying her motion to open the medical evidence once the independent medical examiner failed to offer an opinion about whether she needed surgery. The reviewing board affirmed the administrative judge’s ruling because the employee didn’t challenge the examiner’s opinion on causation, nor did she present the issue that she needed surgery.
The appellate court reasoned that an administrative judge has the discretion to determine whether to open medical evidence. The employee in this case had not shown an abuse of discretion. The impartial’s report was not inadequate, at least on the surface. It made findings that the disability was not prolonged and that the employee was not currently disabled in her right shoulder. The examiner also concluded that there was no causal relationship between the work injury and the shoulder issue that gave rise to surgery.
The appellate court reasoned that even if the examiner had failed to opine on the need for surgery, and even if the examiner should have offered an opinion about whether surgery was necessary, there was no error that would give rise to a reversal.
Specifically, if there were no causal connection (and the claimant did not challenge the failure to find a causal connection), opinions regarding surgery would be irrelevant to the determination of whether benefits were appropriate at all.
The employee argued that the judge asked her to take the impartial’s deposition in order to cure a defective report. However, the report wasn’t inadequate. Rather, by canceling the deposition, the injured worker’s counsel waived her opportunity to explore the impartial’s opinion on causation and need for surgery.
If there is even a possibility that your case will be contested by your employer’s insurer, it is imperative to retain an attorney who understands the ins and outs of workers’ compensation. Retaining an experienced Massachusetts workers’ compensation attorney may be your smartest decision. We can fight for the benefits you and your family need. Contact us by calling 800-367-0871 or using our online contact form.