 |
 |
to fill out a simple form to connect to Personal Injury Lawyers in your area.
|
|
|
|
|
In re Walker's Case12/28/2004
Suffolk
November 4, 2004
Is an employee who suffers permanent losses of bodily functions and disfigurement due to a work-related injury involving brain damage, but who survives his injury, entitled to benefits under the "specific injuries" provision of the Workers' Compensation Act (act), G. L. c. 152, § 36, or are his benefits limited by G. L. c. 152, § 36A, which provides among other things for specific compensation for "an injury involving brain damage?" The question arises in this case as a consequence of debilitating brain damage suffered by Stanley E. Walker due to a work-related injury. For the reasons discussed below, we conclude that Walker is entitled to benefits under § 36 because § 36A applies only in those cases where the employee has died before fully collecting his benefits under § 36. We reverse the decision of the reviewing board of the Department of Industrial Accidents (board), which reached a contrary conclusion.
Background
The facts found by an administrative judge of the Department of Industrial Accidents and summarized by the board are, in the words of the board, "straightforward, undisputed and tragic." On August 7, 1995, Walker received cardiopulmonary resuscitation for approximately forty-five minutes after suffering cardiac arrest with brain injury , having developed severe dehydration while at work. Walker now suffers from anoxic encephalopathy, a condition involving the death of brain tissue and resultant permanent losses of function. The judge found that Walker is in a "near-vegetative state" and is "unable to do anything without the assistance of another person." According to his physician, Walker "has, inter alia, lost cognitive function, has paranoid ideation, has difficulty eating, has no social graces, has difficulty sleeping, requires assistance walking, and he has a loss of depth perception." There is no chance Walker will recover his lost functions, and his injury likely will cause further functional deterioration. We now summarize the legal proceedings that have brought this case before us.
Walker sought compensation from the town of Barnstable (town), a self-insurer, for the total loss of the use of both arms, pursuant to G. L. c. 152, § 36 (1) (e), total loss of the use of both legs, pursuant to § 36 (1) (g), and bodily disfigurement, pursuant to § 36 (1) (k). The town accepted Walker's injury as work related, but disputed his claim for such compensation. On August 3, 1998, an administrative judge held a conference pursuant to G. L. c. 152, § 10A. The next day, the judge issued an order denying the claim. Walker appealed.
On April 20, 1999, the judge held a hearing pursuant to G. L. c. 152, §§ 11 and 11B. On January 14, 2000, the judge concluded that G. L. c. 152, § 36A, rather than G. L. c. 152, § 36, applied to Walker because his losses were due to brain damage. The judge, however, denied Walker benefits under § 36A, concluding that he had "failed to meet his burden of providing proof that he has reached maximum medical improvement for which he would be entitled to benefits under § 36A." Walker appealed from the decision to the board.
On July 30, 2002, the board affirmed the judge's decision to the effect that the brain damage provision of § 36A applied to Walker, but reversed the ruling that Walker had not reached maximum medical improvement. The board ordered benefits be paid to Walker to the maximum amount provided in § 36A. Walker appealed from the decision to a single justice of the Appeals Court and requested an award of full benefits for his specific injuries under § 36. See G. L. c. 152, § 12 (2); Rule 2:04 of the Rules of the Appeals Court (2004).
On April 21
Page 1 2 3 4 5 6 Massachusetts Personal Injury Attorneys
Personal Injury Lawyers
|
| |
to fill out a simple form to connect to Personal Injury Lawyers in your area.
|
|
By using the system, you agree to TERMS OF SERVICE
|