Sometimes, the key to achieving a truly full success in your workers’ compensation case is not succeeding in the initial hearing but overcoming your employer’s (or your employer’s insurer’s) efforts to terminate your benefits. Getting the full benefit of your workers’ compensation means not just being prepared to win your benefits hearing but also preparing for a hearing regarding the reduction or elimination of your benefits. For all of these processes, it is helpful to rely on experienced Massachusetts workers’ compensation counsel who is well-versed in every type of hearing and process.

One worker who fought successfully to maintain his benefits in a recent ruling was Robert, a vending machine route delivery driver for many years. The driver’s job involved a great deal of heavy physical labor, including transporting boxes of coins that could weigh as much as 100 pounds. One day in the spring of 2015, Robert became injured when he fell down five steps at work.

Robert filed a claim for workers’ compensation benefits. The judge in his case concluded that his injuries were very serious, including a fractured and dislocated elbow, along with a wrist injury. Robert was awarded temporary total disability benefits. Less than a year later, the insurer made an effort to reduce or eliminate the benefits. The basis for the insurance company’s effort was an examining physician’s opinion that Robert could perform light duty work with lifting restrictions.

The insurer lost, and then it appealed. Throughout the entire process up to that point, the insurance company’s argument focused on Robert’s alleged recovery and ability to do light duty work. Then, in an argument it had not made before, the insurer asserted a defense that argued that it was entitled to a ruling in its favor because Robert had failed to mitigate. Mitigation means taking steps to minimize the harm you’ve suffered. In other words, an employee may not take unreasonable actions that worsen the injury or slow recovery from the injury.

The insurance company’s specific argument was that Robert failed to mitigate by declining to have surgery on his injured arm. In some situations, if your employer or the insurer wait too long to raise this type of argument, you may be able to use that delay to prevent them from making the argument at all. In this case, the insurer was allowed to make the argument, but the court also ruled that the defense failed. The evidence showed that Robert’s elbow had already reached “a medical end result,” and surgery was “unlikely to give any benefit.” When the treatment at issue won’t actually improve the worker’s condition, a failure to undergo it cannot be a failure to mitigate.

As you can likely see from this description, these cases may become very technical and require an in-depth knowledge of the law, the process, and related medical information. If you find yourself in the position of needing to file a claim for workers’ compensation benefits, or to oppose a motion to reduce or terminate your existing benefits, don’t fight your case alone. Skilled Plymouth County workers’ compensation lawyer Michael S. Mehrmann has spent many years helping people from across Plymouth County, including in Kingston, Plymouth, Marshfield, Hanson, Carver, Pembroke, and Duxbury, pursue the workers’ compensation benefits they need. To find out more about how we can assist you, call (781) 585-3911 or contact us online.