Massachusetts Nurse’s Testimony on Her Ability to Work Is Given Weight

In Anna Keane v. McLean Hospital, an appeal heard by the reviewing board earlier this year, a licensed practical nurse suffered an industrial accident while trying to restrain a patient. The accident happened in 2007 and caused injuries to the nurse’s neck, shoulder, right hand and abdomen. Ongoing symptoms since the accident included headaches, bicep pain, shoulder spasms and other physical problems.

An MRI post-accident revealed she had multi-level cervical disc herniations and nerve root impingement, but she received little treatment. Her physician recommended she undergo physical therapy and receive steroid injections. She took a variety of pain and anti-anxiety medications that left her groggy.

The workers’ compensation judge found that the nurse could not return to work. She had a range of motion that was too reduced to conduct her usual nursing activities, weakness in her hand, and grogginess. The judge found the impartial physician’s report inadequate because he didn’t give an opinion on the cause of these injuries. Therefore, the judge considered additional medical evidence, including testimony from the nurse’s treating physician. The self-insurer also submitted doctor’s reports.

On appeal, the self-insurer argued that (1) the judge failed to consider the medical evidence it submitted and (2) the judge did not make enough subsidiary findings on the extent to which the nurse was disabled in concluding she could not work at all.

With respect to the first argument, the self-insurer argued that the judge’s failure to cite its doctor’s report and discuss all medical evidence made it impossible to determine whether the judge actually considered all submitted evidence.

The reviewing board disagreed, saying that it was sufficient for a judge to list the medical evidence as exhibits and that it would be presumed the judge had actually considered them. The judge’s failure to list one medical record as a separate exhibit at the beginning of a decision would not be a reason to reverse his decision, since the judge did cite the testimony of the doctor (whose report he did not cite) in the body of the decision.

As to the second argument, the self-insurer asserted that the judge had mischaracterized a doctor’s opinion to support the finding of permanent and total disability from paid employment. The reviewing board agreed that the opinion was mischaracterized, but found it a harmless error.

The judge found that the doctor opined the nurse was permanently and totally disabled based upon the nurse’s own complaints, MRI findings, doctors’ examinations, and the known side effects of her pain medications. From this he concluded that the injury was a cause of her disability. He also gave weight to the nurse’s testimony that her need for pain medication affected her concentration and attention, which made it too hard to work at all.

The reviewing board noted that the doctor considered the nurse disabled from her work as a nurse, but not from all work. Instead the doctor imposed certain restrictions. The reviewing board found this harmless because the judge also gave weight to the employee’s own testimony which referred to her inability to work in any capacity due to pain. The judge was entitled to give weight to the nurse’s testimony. It was the combination of testimony with the doctor’s finding that she could not work as a nurse that led the judge to find the nurse was totally and permanently incapacitated from all employment.

If you have suffered an illness in the workplace, we can help you resolve the legal issues that arise in this context so that you can rest and recover. If you are concerned about your employer’s workers’ compensation coverage, ask the experienced Massachusetts workers’ compensation attorneys at Kantrovitz & Associates what you should do. Call us at 617-367-0880 or contact us via our online form.

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