Nurse Eligible For Full Workers’ Compensation Benefits; Not Required to Retrain on Computers

A workers’ compensation insurance company may ask a judge to reduce workers’ compensation benefits based on the salary the worker might be able to earn if he or she learned new skills. The employee in the case at Board No. 024722-04, Mary Jane Doonan, a registered nurse since 1964, worked her entire career in patient care, primarily in nursing homes. Although she also worked in hospitals and as a charge nurse, she had no experience or skills with computers. She also had her own small business teaching tap dance classes a few hours a week. On August 8, 2004, Ms. Doonan was working at a nursing home operated by Pointe Group Health Care when she fractured her right ankle. Her ankle improved, but she developed swelling and pain in her left knee. She did not return to her nursing job, but on September 22, 2004, she returned to teaching dance, which she could do while sitting.

In the first of a number of hearing decisions, the judge found Ms. Doonan had recovered from her ankle fracture, but her left knee problems, which the judge found to be causally related to her industrial injury, restricted her to sedentary activities. The judge awarded § 34 benefits, based on an average weekly wage of $952, from the date of injury until September 22, 2004, and § 35 benefits thereafter, assigning two different earning capacities based on the same § 11A opinion. Without expert vocational testimony, she found Ms. Doonan could work as an office nurse or file reviewer. After this decision, there was some procedural back-and-forth to resolve the inconsistency created by using the impartial disability opinion to support both earning capacity assessments.

The remainder of the litigation revolved around Ms. Doonan’s earning capacity. In the recommittal decision, the judge took no additional evidence and again found that Ms. Doonan could return to a nursing position, including “office nurse, nurse supervisor, or file reviewer.” She assigned a $640 weekly earning capacity based on a finding that Ms. Doonan could perform part-time light or sedentary work for 32 hours per week, at the rate of $20 per hour. Accordingly, she awarded § 35 benefits from September 22, 2004, and continuing, at the rate of $187.20 per week. The case was summarily affirmed by the Reviewing Board, and Ms. Doonan appealed to the Appeals Court.

During the pendency of the original claim and appeals, Ms. Doonan filed a second claim for maximum § 35 benefits at the rate of $428.40 per week, from February 1, 2007, and continuing. For the first time, expert vocational testimony was presented at the hearing. The judge rejected the opinion of Ms. Doonan’s vocational expert, Rhonda Jellenik, that Ms. Doonan would not be a viable candidate for any nursing position. The judge recited, without adopting, the testimony of the insurer’s vocational expert, Susan Chase, that there are positions for older, experienced nurses where the employer will provide training, as needed, and that Ms. Doonan could avail herself of computer training at career resource centers.

Pursuant to the two Appeals Court remand decisions, the judge held another hearing at which she took additional evidence, but without Ms. Doonan, who died on April 9, 2012, prior to the last hearing on February 1, 2013. Her son, Sean McCurley, testified that he was the executor of her estate. Mr. McCurley testified, as did Ms. Jellenik and Ms. Chase, the employee’s and the insurer’s vocational experts, respectively. The judge adopted Ms. Jellenik’s expert vocational opinion “as provided in her most recent testimony . . . that the Employee is/was not capable of employment following her industrial injury, in the area of administrative nursing . . . , as the Employee lacked the necessary education, experience and computer skills required.” The judge also adopted the deceased employee’s prior testimony that she did not have computer skills or use a computer in the course of her employment. The judge found the employee “capable of employment in a light duty, sedentary position such as cashier, desk clerk and customer service personnel,” earning $8.00 per hour for 32 hours per week, and awarded the employee § 35 benefits at the rate of $417.60 per week, based on an earning capacity of $256 per week, from September 22, 2004, to September 22, 2009, when those benefits were exhausted.

There were more appeals by the insurer, and the Reviewing Board ultimately remanded the case one last time, but only for the hearing judge to make specific findings regarding the salary estimates for the “light duty” jobs the judge believed the employee could perform without computer skills. Any retroactive award of benefits would be paid to Ms. Doonan’s estate.

If you are hurt at work, you may be entitled to workers’ compensation benefits. An experienced Massachusetts workers’ compensation attorney can evaluate whether you have a sound claim and fight to make sure that your employer and its insurer follow the rules or give you guidance if there is no insurance available. Contact us by calling 800-367-0871 or using our online contact form.