Opinion
11-P-1045
04-12-2012
ALEXIS M. CORREIA'S CASE.
NOTICE: Decisions issued by the Appeals Court pursuant to its rule 1:28 are primarily addressed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, rule 1:28 decisions are not circulated to the entire court and, therefore, represent only the views of the panel that decided the case. A summary decision pursuant to rule 1:28, issued after February 25, 2008, may be cited for its persuasive value but, because of the limitations noted above, not as binding precedent.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
The employee, Alexis M. Correia, appeals from a decision of the reviewing board of the Department of Industrial Accidents which summarily affirmed the decision of an administrative judge denying her benefits. '[I]n cases of summary affirmance of a decision of the administrative judge by the [reviewing] board, [we are] inspecting the findings and reasoning of the administrative judge.' Dalbec's Case, 69 Mass. App. Ct. 306, 313 (2007). In doing so, we recognize that '[f]indings of fact, assessments of credibility, and determinations of the weight to be given the evidence are the exclusive function of the administrative judge.' Pilon's Case, 69 Mass. App. Ct. 167, 169 (2007).
For approximately twenty years, the employee performed tasks for the employer involving repetitive use of her hands in making, packaging, and carrying golf balls. She left work in June of 2004 complaining of pain in both wrists and her right elbow and shoulder. In 2004, she underwent surgery for carpal tunnel syndrome in her left wrist and hand with only partial relief. On February 28, 2006, an administrative judge issued a decision finding that the employee suffered from bilateral carpal tunnel syndrome, right epicondylitis, and right shoulder impingement, all caused by her work activities. She further concluded that the employee was disabled from repetitive activities of her hands and overhead work involving her right hand. The administrative judge awarded temporary, partial disability benefits from June 19, 2004, ongoing, and reserved § 36 benefits. That decision was affirmed by the reviewing board and no further appeal was taken.
The employer declined to accept claims for benefits beyond January 8, 2009. The employee's claims for temporary, total disability from January 8 and ongoing, along with the issue whether surgery on the right wrist for carpel tunnel syndrome is reasonable and appropriate, came before the same administrative judge for a hearing de novo on December 2, 2009. Although she found the report of the impartial medical examiner (IME) adequate, the administrative judge concluded the medical issues were sufficiently complex to warrant opening the medical evidence. Only the employee testified; medical reports and depositions of treating and evaluating physicians were admitted in evidence. By agreement of the parties, the administrative judge incorporated by reference her general and subsidiary findings of fact from the 2006 decision into her decision on appeal, dated July 30, 2010.
Although the employee testified to significant pain and paresthesias in both upper extremities, the right worse than the left, and an inability to perform fine motor skills and even light housework, the administrative judge made a credibility determination that her pain and disability do not rise to the level of her complaints. The administrative judge adopted the opinion of the IME, Dr. Steven Graff, who examined the employee on August 3, 2009, and concluded that she exaggerated her symptoms and that they in any event 'defy an anatomically-based diagnosis.' According to Dr. Graff, her complaints of pain and tenderness were not limited to the areas typical of carpal tunnel syndrome. He, therefore, could not specifically relate any of her present complaints to her work for the employer. At his deposition, when faced with the recent results of neurodiagnostic testing that revealed severe right median nerve impingement, Dr. Graff did not change his mind, reasoning that the employee's subjective complaints were not indicative of carpal tunnel syndrome and that the nerve conduction tests do not trump the subjective symptoms. While conceding that the employee has uncontroverted median nerve abnormalities, Dr. Graff concluded that the range of symptoms the employee describes subjectively defy an anatomical diagnosis. A second orthopedic surgeon engaged by the insurer to evaluate the employee agreed there was 'no conclusive hard objective evidence to preclude this examinee from engaging in activities, including working full duty.'
The employee presented reports of her treating physician, who has diagnosed her with ongoing bilateral carpal tunnel syndrome, among other ailments, and has recommended surgery to release the entrapment of the median nerve in the right upper extremity. In addition, the employee presented the reports and deposition testimony of the physician who conducted the neurodiagnostic studies and examined the employee, and the report and deposition testimony of a physician who reviewed her records. Each of these physicians essentially opined that although physical examination is one tool used to diagnose carpal tunnel syndrome, neurodiagnostic studies are the most accurate indicator of carpal tunnel syndrome, and the employee's reports of pain are consistent with a diagnosis of carpal tunnel syndrome. They each opined that the employee had bilateral carpal tunnel syndrome and that a surgical release on the right side is reasonable and appropriate treatment. They collectively opined that the employee is incapable of any work requiring repetitive use of her upper extremities.
The administrative judge denied the employee's claims of temporary and total disability benefits and the need for right carpal tunnel surgery. She further found that the employee is 'capable of returning to full-time gainful employment, without restriction.' As there is sufficient support in the IME's opinion to sustain the decision of the administrative judge, we cannot fairly conclude that it is arbitrary or capricious.
Discussion. The gist of the employee's appeal is that Dr. Graff changed his opinion during his deposition testimony when he agreed that the employee's subjective complaints indicate that there is more going on than carpal tunnel syndrome. The employee takes one statement in Dr. Graff's testimony (i.e., 'there's more going on than should be if it was just carpal tunnel') out of context. A reading of his entire testimony, including the cross-examination, reveals that he did not in any way retreat from his conclusion that there is no anatomical diagnosis that explains the employee's symptoms.
In addition, the employee contends that in light of the results of the significantly positive neurodiagnostic studies, the administrative judge erred in adopting the opinion of Dr. Graff. In addition to the testimony of Dr. Graff, however, there was additional medical opinion that neurodiagnostic studies are but one factor a doctor uses to make a diagnosis. The administrative judge was within her authority to accept one expert opinion over another. Kelly's Case, 78 Mass. App. Ct. 907, 908 n.4 (2011). Given the administrative judge's credibility determinations of the employee's testimony and her conclusion that the employee's pain and disability do not rise to the level of her descriptions, we conclude that the judge could properly adopt Dr. Graff's opinion that the employee is able to return to work without restriction and that the proposed surgical procedure to treat whatever carpal tunnel syndrome she might have is not reasonable or necessary.
Decision of reviewing board affirmed.
By the Court (Cohen, Brown & Fecteau, JJ.),