Claimant appealed the decision of the workers’ compensation judge upholding the OWC Medical Director’s (“Director”) denial of Claimant’s request for a second lumbar surgery and disallowing Claimant from introducing new testimony of himself and his treating physician.  The workers’ compensation judge’s decision noted that the appeal of the Director’s opinion is not de novo and is based on the evidence that the Director had in making the decision.

On appeal, the First Circuit agreed that the workers’ compensation statute does not expressly provide for de novo review of the Director’s decision.  However, the Court noted that a Claimant’s burden of proof is different when requesting approval of medical treatment as opposed to appealing the decision of the Director in denying such treatment.  Those burdens are a “preponderance of the scientific medical evidence” and “clear and convincing evidence” respectively.  The Court stated that the workers’ compensation judge’s decision effectively eliminates the distinct burdens of proof at these separate places in the proceedings.  Specifically, if the claimant is not allowed the opportunity to offer additional evidence when the Director’s denial is challenged, his initial burden of preponderance of the evidence is raised to that of clear and convincing.  With this interpretation in mind, and in consideration of the fact that the workers’ compensation act is to be interpreted so as to assure benefits to injured employees, the Court reversed the workers’ compensation judge’s decision and remanded for additional consideration.

Thompson v. DHH-Office of Public Health