Workers’ compensation cases can be complex, particularly where there are multiple work-related injuries over a long period of time. In a recent case, a judge found an insurer responsible for an employee’s ongoing incapacity from a 1997 injury. The employee was a warehouse worker who actually suffered two injuries at work, one in 1991 and the other in 1997.
The 1991 injury occurred while she was lifting heavy boxes and as a result hurt her right arm and trapezius. Because of that injury, she did not work for three years, during which time she was being paid workers’ compensation benefits. She came back to work but continued to work in pain.
The 1997 injury happened while she was lifting a box. She hurt her shoulder, scapula, neck and right arm. The insurer accepted liability and paid compensation benefits in connection with her neck and right shoulder injuries.
The following year, the employee went back to work with restrictions—no heavy lifting. However, over time, the lifting tasks increased, as did time spent on the job. She took Vicodin for the pain until in 2010, she started to have pain in her left shoulder, too. She took a voluntary retirement from the job.
At the worker’s compensation hearing, she did not claim the 1991 injury. She only listed the 1997 injury. When the testimony was complete in 2012, the insurer stated that they would stipulate regarding her average weekly wage. It did not raise the 1991 injury. It stated that there was a new, successive insurer who took on the risk in mid-2007. However, neither employer nor employee requested consideration of a new issue or defense.
The judge found that the employee was injured in 1997, she came back to modified work but that her symptoms worsened until she was not totally disabled, and then accepted a severance package. The judge did not find a pre-existing condition and held the insurer liable. The judge also found the employees symptoms had worsened such that she stopped being able to work, but that there was no new injury that incapacitated her. The judge ordered the insurer to pay benefits, including benefits for permanent loss of function, in the amount of $31,046.83.
The insurer appealed. It argued that the employee suffered a new cumulative injury after coming back to work in 1998, rather than a worsening of the 1997 injury. In the insurer’s view, the new successive insurer should bear responsibility for a later 2010 injury.
The reviewing board disagreed with the insurer, noting that the judge was never asked to consider whether the employee suffered a new injury after 2007. The insurer didn’t raise the issue of a new injury, for which the successive insurer could be liable, to the judge. It only brought up the issue to a judge two months after the hearing in a letter.
Accordingly, the reviewing court concluded that the judge was not required to rule on issues not raised in a timely way; in fact he couldn’t rule on issues not before him. The reviewing board also disagreed with the insurer’s argument that the employee’s later injury was to blame for her incapacity. It stated that the incapacity was not severed from the original injury simply because there was also a later injury.
As you can see, insurers may not be interested in accepting liability immediately for an injury. An experienced Massachusetts worker’s compensation attorney may be able to help you fight for the benefits to which you are entitled. Call Kantrovitz & Associates at 617-367-0880 or contact us via our online form.