Opinion
BOARD No. 04224194
Filed: December 22, 1997
REVIEWING BOARD DECISION (Judges Wilson, Fischel and Levine)
APPEARANCES
Morgan J. Gray, Esq., for the employee at hearing.
JoAnn D. Walter, Esq., for the employee on brief.
Sheila A. Carey, Esq., for the insurer.
Michael DeMetrio appeals the decision of an administrative judge, who denied and dismissed his § 35 claim for weekly benefits for temporary, partial incapacity related to a left inguinal hernia and surgery. The judge relied on the report and deposition of the § 11A impartial medical examiner, notwithstanding the employee's motion for the allowance of additional medical evidence. The employee contends on appeal that there was a period after the hernia surgery and prior to the date of the § 11A impartial examination when he had a nerve impingement condition about which the doctor testified he could not form an opinion, rendering the report and deposition inadequate as to the employee's physical condition during this disputed time. Because the argument the employee makes on appeal was not stated in his § 11A motion to the administrative judge, we affirm the hearing decision.
Michael DeMetrio, forty-one years old at the time of the hearing decision, holds a high school GED certificate. Since 1976 he has been employed as a construction laborer on construction and demolition projects. This work entailed, among other things, operating heavy equipment and lifting up to one hundred pounds at a time. (Dec. 3.)
On August 15, 1994, the employee was lifting heavy steel beams with a helper when he felt a stabbing pain in his left groin, causing him to fall to his knees. He reported the injury but continued working. He sought medical treatment with Dr. Darius Ameri, who diagnosed a left inguinal hernia and advised the employee to return to work with lifting restrictions. He worked until October 3, 1994, when pain and swelling prevented continued work. (Dec. 3-4.)
The employee underwent left inguinal hernia repair on November 4, 1994 and collected workers' compensation benefits until January 11, 1995, when Dr. Ameri released him to work without restrictions. Despite continuing pain in the area of the surgery, he worked full-time at his usual duties until January 31, 1995, when he left work due to rectal bleeding. He consulted with Dr. Ameri, who referred him to a specialist, Dr. Bowry. Eventually he came under the care of Dr. Robert DiTullio, who prescribed cortisone shots and advised that he stay out of work. He did so until May 1995, when he began part-time employment for a painting company, performing prep work and light duty painting. He left this job in August 1995 and, in October 1995, began working as a truck driver, a job he held at the time of the November 16, 1995 hearing. The employee's complaints of pain and swelling continued unabated from the time of his surgery to the date of the hearing. (Dec. 1, 4-5.)
The insurer paid § 34 weekly temporary total incapacity benefits on a without prejudice basis from October 3, 1994 to January 11, 1995. Thereafter, the employee filed a claim for additional benefits, which the insurer denied. Following a § 10 conference denial of his claim, the employee appealed to a hearing de novo. Dr. S. Frank Fox, who conducted a § 11A medical examination on August 18, 1995, opined that the employee had suffered a work-related left inguinal hernia on August 15, 1994, which incapacitated him from work until January 11, 1995. The judge, who found the employee exaggerated his symptoms and limitations, adopted Dr. Fox's further opinion that any incapacity after January 11, 1995 was unrelated to his work injury. (Dec. 1, 5-6.)
After taking the deposition of Dr. Fox, the employee moved for allowance of additional medical evidence, contending that Dr. Fox did not adequately address the issue of disability from the outset of the claim. The motion was denied.
In his appeal to us, the employee asserts that denial of his motion for allowance of additional medical evidence was error because the § 11A examiner could not render an opinion on the employee's allegedly related nerve impingement condition, which the employee now claims arose after the November 4, 1994 surgery and before the August 18, 1995 impartial examination. He also argues that the judge failed to address the reasonableness and necessity of his medical treatment. We address his arguments in turn.
In support of his first argument, the employee points to the judge's written ruling on his motion for additional medical evidence, which we set out in relevant part:
Dr. Fox specifically addresses the extent and cause of the employee's condition(s) from the date of injury through the date of his examination of the employee. He does not concede that he is unable to address the period prior to his exam, nor does the record lead me to that conclusion.
We hardly can fault the administrative judge if he did not address the alleged nerve damage issue because, although framed clearly and cogently on appeal, it at best was referenced only obliquely in the § 11A motion presented to the administrative judge. If we were to find fault, we would impose on the judge an obligation to apply an unreasonable level of intuitive insight to a motion that focused on other aspects of the deposition and made no reference to nerve damage or impingement. The standard to which the judge is held is not that the judge need be clairvoyant in assessing the arguments made in a motion for further medical evidence, but that the decision was factually warranted and not arbitrary and capricious on the issues and evidence before him. See Sheffler's Case, 419 Mass. 251, 258 (1994). We see no error.
Because we decide that the issue of possible nerve damage and any related incapacity was not expressly raised and decided, it is open to the employee in the unusual circumstances of this case to bring a claim for that alleged condition.
The employee next contends that the administrative judge's silence on the reasonableness and necessity of his medical treatment after January 11, 1995 was error. He identifies specific parts of Dr. Fox's deposition discussing medical treatment rendered after that date. We do not see a failure to address the post-January 11, 1995 treatment, however, as there was no claim for medical benefits either specifically set forth on the hearing claim form or asserted at hearing. (Tr. 3-4). Furthermore, we find no evidence that disputed medical bills were presented. As the judge found a work-related injury, the employee may file a claim for any necessary and related medical treatment.
The denial and dismissal of the employee's claim for weekly benefits is affirmed.
So ordered.
_____________________ Sara Holmes Wilson Administrative Law Judge
____________________ Carolynn N. Fischel Administrative Law Judge
____________________ Frederick E. Levine Administrative Law Judge
Filed: December 22, 1997