Understanding Workers’ Compensation Act

Almost everyone knows someone who was injured on the job. As a result, most of us are familiar with the Massachusetts Workers’ Compensation Act to one extent or another. It is obviously a critical piece of legislation for employees. Currently, some attorneys and legislators consider the act fair; others believe the act needs legislation to increase the level of benefits. Few, however, maintain the level of benefits should be decreased.

It is the intent of this column to simply explain the process of pursuing a workers’ compensation claim and the inherent difficulty the act provides.

When an employee gets injured on the job, the employee may be entitled to workers’ compensations benefits. The severity of the injury will likely determine the level of potential benefits. Many times there is a legal question as to whether the injury is one in which the employee may receive the benefits.

Legal issues arise and litigation often begins when the employee has a pre-existing condition that combines with a compensable injury under the act. According to the act, if a compensable injury or disease combines with a pre-existing condition the resultant condition is compensable only to the extent the compensable injury is a major but not necessarily pre-dominant cause of disability.

I agree the last sentence is a nebulous standard with no concrete determining factors to conclude if a condition is compensable or not. And so goes the litigation.

When litigation begins at the Department of Industrial Accidents, the formal proceeding is the conciliation whereby the parties explain their position and attempt to agree to an amicable resolution or at least agree to the disputed facts.

Thereafter the parties attend a conference at which both parties argue their cases to an administrative judge. If there is a medical dispute, both the employee and employer provide medical documentation to the judge and all such medical documents go to an impartial doctor who writes the impartial physician report based on all the medical documents and an examination of the employee. That report is prima facie evidence at the next stage of the hearing.

At the hearing, it may be surprising to some people, but the only medical evidence allowed is the impartial physician report.

Attorneys have challenged the constitutionality of this report, arguing that having only one report denies a party due process of law insofar as it denies the opportunity to offer medical testimony to contradict the report.

However, case law confirms, only if a judge finds that the medical report is inadequate or if the medical issue involve complexity is it possible to submit additional medical evidence.

The theory behind having only one medial report at the hearing was to prevent opposing medical experts at hearing; to prevent the dueling doctors. However, even though case law allows the one report at hearing, many question the fairness of such a mandate. In fairness however, parties have a right to depose the impartial physician.

At a hearing, the parties often hire vocational experts who testify about the employee’s vocational strengths and weaknesses in the context of other economic concerns. The vocational expert is to supplement the medical view of the impartial report with the vocational perspective.

The vocational expert usually needs medical information to perform a work-up of an employee. Thus a vocational expert may utilize medical information in addition to the impartial report to develop his/her theory. Arguably, the vocational expert may use medical documentation not in evidence to support that side.

Case law currently appears to allow a vocational expert to use non-admissible medical evidence in the vocational report and testimony although many judges do not favor this view. See Simoes vs. Town of Braintree School Department, 10 Mass. Workers’ Comp. Rep 772 (1996).

Overall, when an employee pursues a workers’ compensation claim or an employer defends a workers’ compensation claim, the act itself provides a fairly rigid framework of what medical testimony is allowable at the hearing. Although this has been challenged on several occasions, the allowance of only one medical report, the so-called impartial report, has been held constitutional and held not to deprive an employee or employer due process.