Opinion
21-P-970
12-09-2022
ANDREA O'ROURKE’S CASE.
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
In May 2011, the claimant, Andrea O'Rourke, suffered a workplace injury when she was struck in the head by a magnet as she was exiting the offices of her employer. O'Rourke subsequently filed a claim for workers’ compensation benefits, asserting that the workplace accident had caused her to suffer physical and psychological injuries. In August 2020, an administrative judge of the Department of Industrial Accidents (DIA) found that O'Rourke was entitled to a closed period of benefits for certain physical injuries but declined to award benefits for her psychological injuries, finding that O'Rourke had failed to establish a causal relationship between those injuries and the accident. O'Rourke filed the instant appeal after the DIA's reviewing board summarily denied her appeal of the administrative judge's decision. We affirm.
The magnet was part of the door jamb locking assembly and weighed approximately eight to twelve ounces.
Because the procedural history of this case is extensive, we relate only so much as is necessary to frame the issues.
Discussion. 1. Standard of review. Under G. L. c. 152, § 12 (2), we review the decision of the board in accordance with G. L. c. 30A, § 14 (7) (a )-(d ) and (f )-(g ). See MacDonnell's Case, 82 Mass. App. Ct. 196, 201 (2012). "We may reverse or modify the board's decision where it is based on an error of law, or is arbitrary, capricious, or otherwise not in accordance with law." Wilson's Case, 89 Mass. App. Ct. 398, 400 (2016). Where, as here, the board has summarily affirmed some, or all, of an administrative judge's findings, the reviewing court must review the "findings and reasoning of the administrative judge." See Dalbec's Case, 69 Mass. App. Ct. 306, 313 (2007).
2. Summary denial. O'Rourke first contends that the board's decision was arbitrary and capricious because it summarily denied her appeal and thus failed to discuss the issues she raised in her brief or cite evidence in support of its rejection of those issues. Because O'Rourke does not point to any authorities in support of this argument, it does not constitute reasoned legal argument under Mass. R. A. P. 16 (a) (9), as appearing in 481 Mass. 1628 (2019). In any case, a summary denial is a corollary of a summary affirmance, which is a disposition that this court has routinely upheld so long as the underlying decision of the administrative judge is legally sufficient. See, e.g., Xudong Yang's Case, 95 Mass. App. Ct. 749, 753, 756 (2019) ; MacDonnell's Case, 82 Mass. App. Ct. at 198, 203.
Assuming, arguendo, the board was required to cite reasons for rejecting a claimant's arguments, we lack a basis for evaluating whether the board met that requirement here because O'Rourke did not include in the record appendix a copy of her brief to the board. See Mass. R. A. P. 18 (a) (1) (A) (v) (b) and (a) (1) (B), as appearing in 481 Mass. 1637 (2019). See also Aronson v. Commonwealth, 401 Mass. 244, 255 (1987) ("Memoranda of law filed in the trial court, when relevant to the case on appeal, must be included in the appendix").
3. Medical opinions. O'Rourke next claims that the board erred insofar as it adopted the administrative judge's findings concerning O'Rourke’s diagnoses and the causal relationship between her injuries and the accident. O'Rourke argues that the administrative judge's findings were arbitrary and capricious because the judge (1) failed to expressly discredit medical opinions that she did not rely on in her analysis, and (2) mischaracterized certain medical opinions.
a. Failure to discredit. The only legal authority O'Rourke has cited in support of her contention that the administrative judge was required to expressly discredit certain expert opinions is Turcotte v. Westinghouse Elec. Corp., 9 Mass. Workers’ Comp. Rep. 300 (1995). In Turcotte, supra at 304, the board held that it was error for an administrative judge to consider a doctor's report that was inconsistent with the same doctor's later deposition testimony. Here, however, O'Rourke has not argued that the administrative judge improperly failed to consider a particular expert's final opinion, but instead, that the administrative judge improperly failed to explain why she did not credit certain experts’ opinions altogether. Turcotte is therefore inapposite.
In the absence of any citations to relevant legal authorities, O'Rourke’s claim that the judge was required to make express finding that certain medical opinions were not credible does not require further consideration. See Mass. R. A. P. 16 (a) (9) (A).
b. Mischaracterization. We reject O'Rourke’s claim that the administrative judge mischaracterized certain expert medical opinions. O'Rourke’s arguments in support of this claim overwhelmingly take issue with the administrative judge's decision to adopt certain medical opinions (or portions thereof) over opinions that O'Rourke believes were more favorable to her.
"Findings of fact, assessments of credibility, and determinations of the weight to be given the evidence are the exclusive function of the administrative judge." Goodwin's Case, 82 Mass. App. Ct. 642, 645 (2012), quoting Pilon's Case, 69 Mass. App. Ct. 167, 169 (2007). Therefore, an administrative judge may reject some or all of an expert's testimony or "accept the medical testimony of one expert and ... discount that of another." Fitzgibbons’ Case, 374 Mass. 633, 636 (1978). See Amon's Case, 315 Mass. 210, 215 (1943). Administrative judges are not required to explain their choice to reject one opinion in favor of another so long as their findings provide "the necessary factual predicate to support" their adoption of the opinion they chose to rely on. See Carpenter's Case, 456 Mass. 436, 444 (2010).
In this case, the administrative judge's factual findings provided the necessary factual predicate to support her choice to adopt Dr. James Lehrich's opinion that O'Rourke’s physical injuries were likely resolved by December 11, 2014, and Dr. Stuart Grassian's opinion that her psychological injuries were not causally related to the accident. These findings were properly adopted by the board.
O'Rourke also claims that the administrative judge mischaracterized certain medical opinions insofar as the judge did not find that certain claims were true based on evidence those claims had not been proven false. For example, in support of her challenge to the judge's finding that Dr. Hsinlin Thomas Cheng did not causally relate O'Rourke’s diagnoses to the accident, O'Rourke cites Dr. Cheng's testimony that he did not have a basis to disbelieve O'Rourke’s claim that her pain was caused by the accident. Similarly, O'Rourke avers that Dr. Lehrich "never stated to a reasonable degree of medical certainty [that O'Rourke’s symptoms] were not related to the industrial accident." This is despite Dr. Lehrich's opinion that there was no causal relationship between the accident and the pain O'Rourke suffered after December 2014.
O'Rourke also contends that "Dr. Lehrich openly admits [O'Rourke] could still be suffering post-concussion syndrome," but does not cite to any record evidence that supports this claim.
In a workers’ compensation case, "an employee has the burden of establishing, by a preponderance of the evidence, all the elements of her claim for workers’ compensation benefits, including the fact of the requisite causal connection between her injury and workplace events or conditions; and ... she cannot prevail if any critical element is left to surmise, conjecture or speculation or otherwise lacks evidential support." Patterson v. Liberty Mut. Ins. Co., 48 Mass. App. Ct. 586, 592 (2000). Accord Cassola's Case, 54 Mass. App. Ct. 904, 905 (2002). "[T]he expert medical opinion as to that causal relation which the employee must obtain in order to prevail (when the matter is, as here, beyond the common knowledge of the ordinary layperson) has to be expressed in terms of probability, not mere possibility." Patterson, supra. Expert testimony that merely establishes that there is no proof an injury was not causally related to an accident is insufficient to satisfy this burden. Cf. Look's Case, 345 Mass. 112, 115-116 (1962) (finding that employee can no longer work must rest on "positive medical testimony on the specific issue of causal relation"). Accordingly, the administrative judge did not improperly characterize Dr. Cheng's and Dr. Lehrich's opinions as to causation.
4. Psychological issues. O'Rourke last argues that the board's adoption of the administrative judge's findings regarding her psychological issues was reversible error. We disagree.
"[A]n employee whose emotional disability is the result of a work-related physical injury will be awarded compensation upon a simple demonstration of ‘but for’ causation between the injury and the employee's condition." MacDonnell's Case, 82 Mass. App. Ct. at 201, quoting Cornetta's Case, 68 Mass. App. Ct. 107, 108 (2007). Here, O'Rourke argues that she is entitled to compensation for her psychological injuries because "there is no dispute" that her "psychological pain and anxiety are related" to her workplace accident. In support, O'Rourke cites the opinion of Dr. Michael Bennett, whom the administrative judge found had "struggled with the term of reasonable degree of medical certainty" when he was asked to identify the cause of O'Rourke’s psychological issues.
O'Rourke neither acknowledges the judge's rejection of Dr. Bennett's opinion nor the judge's adoption of Dr. Grassian's opinion that "there is no causal relationship between the 2011 industrial accident" and O'Rourke’s psychological symptoms. The administrative judge's choice to reject the portion of O'Rourke’s claim seeking compensation for psychological injuries based on Dr. Grassian's opinion was a legitimate exercise of the judge's discretion, which the reviewing board was entitled to accept, and with which this panel will not interfere.
Decision of the reviewing board affirmed.