The injured employee, a 74 year-old truck driver, suffered a cervical disc herniation requiring fusion following an injury to his neck and shoulder while cranking a landing gear on a tractor trailer.
The insurer paid benefits without prejudice. It extended those benefits properly, but then discontinued benefits based upon the report of an IME (Insurer’s Medical Exam).
A claim was then filed alleging that the inured employee was unable to resume his prior work. His surgeon, however, opined that he was able to resume truck driving provided that he was limited to that activity alone. Given the restrictions imposed by his surgeon, there was an issue as to whether the injured employee could pass a DOT physical.
In addition to this issue, the employee faced the consequences of Section 35E of the Massachusetts Workers’ Compensation Act which permits an insurer to terminate benefits to employees over the age of 65. While rebuttal is permitted, it is often extremely difficult for an injured employee to overcome the effects of this statute. (For a discussion of how to successfully challenge an insurer’s attempt to use Section 35E see Geno Cognata, v. Massachusetts Turnpike Authority, Self-Insured BOARD No. 010456-91) In light of these facts, the case was settled for the full value of the employee’s entitlement to partial disability under Section 35.
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