Pursuant to a decision last week from the Massachusetts Department of Industrial Accidents Reviewing Board (DIA), an employee who suffered a neck injury on the job prevailed in securing total disability benefits for that injury, but was denied benefits for the claimed aggravation of his pre-existing lumber injury.
In Corazzini v. Diamond Chevrolet, the employee worked as a manager and salesperson for the employer car dealership. As part of his duties, the employee was responsible for snowplowing the employer’s lot. In January 2009, after operating a front-end loader to remove snow from the employer’s lot, the employee slipped backwards onto the concrete while dismounting the machine.
The employee was thereafter treated for a neck injury arising from the incident. He also claimed that, because his work-related neck injury caused him to overuse his lumbar spine, the incident aggravated his pre-existing lumbar condition and caused him to suffer related symptoms. The employee claimed that his lumbar injury was sufficiently work-related to be compensable under the Workers’ Compensation Act.
The employer’s workers’ compensation insurer accepted liability for the neck injury, but disputed that the lumbar condition was compensable. Specifically, the insurer raised section 1(7A) of the Workers’ Compensation Act, which provides that, if a compensable injury (here, the neck injury) combines with a pre-existing injury (here, the lumbar condition), and together the injuries cause or prolong a disability or need for treatment, then the total injury is only compensable to the extent that it “remains a major but not necessarily predominant cause of disability or need for treatment.”
The administrative judge adopted the opinions of both Dr. Kenny, an independent medical examiner who examined the employee, and Dr. DiTullio, the insurer’s medical examiner. She also credited the employee’s testimony that his cervical pain symptoms prevented him from performing and sustaining work. As a result, the judge found the employee totally disabled from the neck injury, but rejected the employee’s claim relating to the lumbar condition.
The DIA affirmed. First, although Dr. Kenny had opined that the employee’s lumbar symptoms were connected to his neck injury, he specifically denied that the employee suffered a work-related lumbar injury. Additionally, although Dr. Kenny’s opinion could have been read to mean that the neck injury aggravated a pre-existing lumbar condition, Dr. Kenny did not opine that the aggravated lumbar condition was a major cause of the employee’s disability or need for treatment. Because there was no evidence that the aggravated lumbar condition was a “major” cause of the employee’s disability, it was not compensable under the Workers’ Compensation Act.
However, the DIA also affirmed the administrative judge’s determination that the employee was totally – not partially – disabled as a result of the neck injury. Despite the fact that both Dr. Kenny and Dr. DiTullio opined only that the employee was partially disabled as a result of the injury, the administrative judge was entitled to credit the employee’s testimony that his symptoms prevented him from performing and sustaining work, and award him total incapacity benefits as a result of those limitations.
The total disability determination was also supported by the opinion of Dr. DiTullio, when viewed in combination with the employee’s testimony that his job involved frequent driving, bending, and overhead reaching. In particular, Dr. DiTullio opined – and the administrative judge adopted his opinion – that the employee “is unable to participate in any activities that would require his lifting over 5 pounds, frequent overhead use of the upper extremities, repetitive bending, excessive spinal loading, prolonged postural fixation, or direct injury to either the head or neck region.”
As a result, the DIA affirmed the award to the employee of total incapacity benefits arising from the work-related neck injury.