Vocational Evidence at the Massachusetts DIA

The Department of Industrial Accidents states on its page that it oversees the Massachusetts workers' compensation system and that it works to ensure those involved have the resources needed to participate, by assisting injured workers, employers, insurers, attorneys and health care providers in following the Commonwealth's workers' compensation laws and regulations. Its main office is in Boston, with further offices across the state, and the page lists Review Board Decisions by Year, in the link's own words, and the department's impartial medical examinations among its resources. Vocational evidence has a place in this system where a claim is disputed: the department's page on its dispute resolution steps opens by saying that when the worker and the employer's workers' compensation insurer do not agree on the claim, the department will help adjudicate the dispute. A vocational evaluation addresses one part of such a dispute, the worker's capacity to earn after the injury, and counsel decide at which step to place it before the department. Nothing in this guide states what benefit follows from a finding about earning capacity; that is for the administrative judge and for counsel, and the department's pages, not this guide, describe the department's procedure.

The department's dispute steps page describes conciliation first. When the worker or the worker's attorney files a claim for benefits, or the insurer files a complaint to stop or modify benefits, a conciliation is scheduled: an informal meeting between the worker, the worker's attorney, the insurer's attorney and a conciliator from the department. The page tells the worker to bring medical documentation, and it says the conciliator will try to help the parties reach an agreement; if none is reached, the claim is referred to an administrative judge for the next step, a conference. The conference, which the page also calls a proceeding, is again described as an informal discussion, this time between the worker, the worker's attorney if there is one, the insurer and the administrative judge. If the issues are not resolved, the page states, the administrative judge will issue a temporary order that states whether the workers' compensation insurer must pay benefits, and where the insurer asked to modify or stop benefits the order addresses those issues. Either side may appeal a conference order within the period the page states. The page describes no written submission at either step beyond the medical documentation it asks the worker to bring. KWVRS's practice for these informal steps is a summary opinion, usually a letter report, that states the worker's capacity to earn and the records and labor market data it rests on, so that counsel can hand the conciliator or the judge a documented position rather than an assertion; whether and when to do so is counsel's decision.

Before a hearing opens, the page requires a pre-hearing conference. The parties submit a joint pre-hearing memorandum and are expected to file and argue their motions in advance of the pre-hearing conference where practicable; if they fail to submit the memorandum or to schedule the conference under the department's administrative bulletin, the scheduled hearing date becomes a mandatory pre-hearing conference. If the conference order is appealed, the page continues, the case goes to a full evidentiary hearing, which it calls the trial phase of the case: Massachusetts rules of evidence apply, witnesses are called, and a stenographer records testimony. The administrative judge may require both sides to submit new evidence and oral testimony before issuing a hearing decision. A hearing decision may be appealed to the department's Reviewing Board, which the page says hears appeals of hearing decisions; its administrative law judges examine the hearing transcripts, can ask for legal arguments, called oral arguments, will require legal briefs, can affirm the hearing decision with no discussion, and can send a decision back to the administrative judge for further findings of fact. The page states that the Reviewing Board will reverse a hearing decision only where it finds the decision beyond the scope of the administrative judge's authority, arbitrary or capricious, or contrary to law. A further appeal from the Reviewing Board, the page says, is heard by the state's appellate court; the Appeals Court's own page describes it as the Commonwealth's intermediate appellate court with jurisdiction over appeals from final decisions of the Industrial Accident Board. For a vocational expert the consequence is that the hearing is the step at which the opinion is given as testimony and recorded, and that what the Reviewing Board later examines, by the page's description, is the hearing transcript.

KWVRS shapes the vocational opinion to the step the dispute has reached. For conciliation and the conference, both informal by the department's description, the deliverable is a summary opinion: the restrictions as the medical records state them, the occupations that remain within them, the wages those occupations pay in the worker's labor market and the resulting capacity to earn, each with its source named, in a form a conciliator or an administrative judge can read quickly. For the hearing the deliverable is the full report, and the report is written knowing that the evaluator may be among the witnesses called and that a stenographer records what is said: every occupation, every wage figure, every employer contact in the labor market survey and every record relied on appears in the report with its source, so that the testimony and the report say the same thing and the transcript the Reviewing Board examines carries the whole basis of the opinion. An opposing vocational report, whether the insurer's or the worker's, is reviewed on the same terms: its records basis, the restrictions it applied, its occupational analysis, its labor market evidence and its wage sources. Plaintiff and defense counsel retain KWVRS with one method, which in a workers' compensation dispute means that the injured worker's counsel and the insurer's counsel receive the same analysis from the same records, the same occupational classification and the same wage series, and the opinion may be that the worker's capacity to earn sits near the pre-injury wage or that it sits well below it. The evaluator states no rule of entitlement and predicts no order; what the opinion means for the benefit is for the administrative judge and for counsel.

The department has its own vocational rehabilitation office, and a forensic vocational opinion is not the same thing. The Office of Education and Vocational Rehabilitation, by its page, assists injured workers who have an accepted or established workers' compensation claim to return to meaningful employment; the goal of vocational rehabilitation services, the page states, is to return an employee to their pre-injury average weekly wage, and the office is responsible for overseeing these services. The department's information page for injured workers describes the process as employment-oriented and designed to return the worker to work in the quickest and most cost-effective way, with the same employer and the same job attempted first, then a modified job with the same employer, then a different job with the same employer, then a different job with a different employer, and retraining only after those, where it may be undertaken. The office reviews the worker's medical, educational and employment history and, if the worker is found eligible, requests that the insurer arrange services, which the insurer is then required to provide; a regional rehabilitation review officer oversees the job search. The office's page also links a practice guide for vocational rehabilitation providers and the list of providers the department certifies. The Commonwealth's general vocational rehabilitation agency is separate: MassAbility, formerly the Massachusetts Rehabilitation Commission and renamed by legislation its page records, describes its programs as expanding possibilities in careers and training, home and community life, and legal rights and benefits. A KWVRS evaluation for a disputed claim answers a different question from either program: not how to return this worker to work, but what this worker can earn now, for the dispute before the department. Where the worker has an open or closed rehabilitation file with the office or with MassAbility, that file is among the records the evaluator reads, because it documents the jobs attempted, the training considered and the reasons each path ended.

The method is the one KWVRS applies in every forum, read against the department's record. The medical records fix the restrictions: the treating records, any independent or impartial medical examination report in the file (the department's page lists impartial medical examinations among its resources), and the functional capacity evaluation where one was performed. School, training and employment records fix the skills the worker brought to the labor market, and the wage records fix the pre-injury earnings, the measure the rehabilitation office's page names as the goal of its services, the pre-injury average weekly wage. A vocational interview and, where indicated, standardized testing measure what the worker retains. A transferable skills analysis then matches the retained skills and the documented restrictions to the occupations that stay inside both, and a labor market survey reports whether those occupations are hiring where the worker lives and what they pay. Wages come from the Occupational Employment and Wage Statistics program of the U.S. Bureau of Labor Statistics, whose metropolitan area estimates name the Boston-Cambridge-Newton, MA-NH area; a worker who lives and works in Boston or the communities around it is priced to that area, a worker elsewhere in the Commonwealth to the published area for that place, and the report names the area it applied and explains the choice where a work history reaches into a second labor market. The Massachusetts vocational expert page sets out the same method against the Superior Court and the Probate and Family Court as well as the department, and the vocational evaluation guide explains each step without reference to a forum.

A hearing report sets pre-injury earning capacity beside post-injury earning capacity and states the difference, and each figure can be traced. The report lists the records read and the records requested but not received; the restrictions, each tied to the record that states it; the occupations identified, with the classification each was coded under; the employers contacted in the labor market survey and what each said about openings, requirements and pay; the published wage for each occupation, with the area and the series named; and the opinion, with the reasoning that connects it to the record. It also says what it does not do: it does not state whether the worker is entitled to a benefit, it does not say what order the administrative judge should issue, and it does not describe the department's procedure beyond what the department's own pages state. The report is organized to the disclosure practice of the forum in which the claim is pending, and the Massachusetts expert disclosure page summarizes that practice for the department and the courts. Attorneys confirm the governing rule for their case.

The Massachusetts pages that carry the forums, the wage areas and the method this guide describes, with the city pages whose entries name a department office:

• Vocational expert services in Massachusetts
• Expert disclosure in Massachusetts
• Massachusetts
• Boston
• Worcester
• Springfield