Opinion
16-P-364
03-28-2017
Frances MARGRAF'S CASE.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
In this worker's compensation case, MEGA Property & Casualty Group c/o CCMSI (the insurer) appeals from a decision of the reviewing board of the Department of Industrial Accidents (board), affirming the decision of an administrative judge. We affirm.
Background . We draw the following facts from the board's thoughtful and thorough written decision. Following a lump-sum settlement to the employee as a result of a compensable injury, the employee filed claims under G. L. c. 152, §§ 13(1) and 30, for prescription drug coverage and reimbursement for medical appointments. The insurer raised G. L. c. 152, § 1(7A), as an affirmative defense. After crediting the employee and the opinions of the independent medical examiner (IME), the judge rejected the insurer's defense and ordered payment of the requested benefits. The board affirmed.
Section 1(7A), as appearing in St. 1991, c. 398, § 14, provides, in pertinent part, that "[i]f a compensable injury or disease combines with a pre-existing condition, which resulted from an injury or disease not compensable under this chapter, to cause or prolong disability or a need for treatment, the resultant condition shall be compensable only to the extent such compensable injury or disease remains a major but not necessarily predominant cause of disability or need for treatment."
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Discussion . "We review the board's decision in accordance with the standards set forth in G. L. c. 30A, § 14(7), governing appeals from final administrative agency decisions, but we do not consider whether the board's decision was supported by substantial evidence." Spaniol's Case , 466 Mass. 102, 106 (2013). See G. L. c. 152, § 12(2). Thus, "[w]e may reverse or modify the board's decision where, among other reasons, it is based on an error of law, or is arbitrary, capricious, or otherwise not in accordance with law." Spaniol's Case , supra , citing G. L. c. 30A, § 14(7)(c ) and (g ).
The insurer argues that the board's decision to affirm was arbitrary, capricious, and contrary to the law because the judge imposed upon it a new burden of production under § 1(7A) and failed to make findings regarding the nature of the employee's preexisting condition. The judge held that "[o]riginal Section 1(7A) causation was satisfied by the [l]ump [s]um [a]greement" and that, "[i]n order to avoid re-litigating the same causation ground repeatedly, ... the [i]nsurer must meet a new burden of production under" Stewart's Case , 74 Mass. App. Ct. 919 (2009). The board held that the insurer's claim of error in this analysis was "mooted by the judge's adoption of [the IME's] resounding opinion that the 2005 work injury remains a major cause of the employee's disability and need for treatment," and that "[t]his opinion clearly satisfies the employee's burden of proof under § 1(7A), regardless of what the insurer's burden of production was."
There was no error. The judge's decision to credit the IME is "final," Carpenter's Case , 456 Mass. 436, 441 (2010), and the IME's opinion was "expressed in terms substantially equivalent to those of" § 1(7A), Stewart's Case , supra at 920. Because the IME's opinion "support[ed] the requisite finding," ibid ., the employee satisfied § 1(7A)'s "heightened ... standard of causation," Upton's Case , 84 Mass. App. Ct. 411, 416 (2013), and there was "no need" for findings regarding the employee's preexisting condition, Carpenter's Case , supra at 445. See MacDonald's Case , 73 Mass. App. Ct. 657, 661 (2009). We agree with the board that insurer's arguments are moot. See id . at 659 n.2.
The board found the insurer's next argument, that the judge violated its due process rights by considering without admitting in evidence its proffered expert's report, was "disingenuous and inconsistent with the insurer's arguments at hearing." The insurer makes a similarly disingenuous and inconsistent argument on page eleven of its brief to this panel that it received "no prior notice" that the judge was going to "carefully analyze [ ] [its proffered expert's] reports to determine the applica[bility] of § 1(7A)." The insurer offered the reports at a G. L. c. 152, § 10A, conference before the same judge, submitted them again at the hearing as an offer of proof that § 1(7A) applied, and could not have been surprised that the judge carefully analyzed them. We agree with the board that "[t]he insurer may not claim prejudice when the judge simply did what it asked." In any event, where the reports are not included in the record appendix and the judge credited the IME's opinions, any alleged error by the judge is moot.
The employee's request for attorney's fees pursuant to G. L. c. 152, § 12A, is allowed. Within ten days of the date of the rescript, the employee may file with this court, and serve on the insurer, an affidavit and supporting documentation for the attorney's fees and costs requested, in accordance with the procedures specified in Fabre v. Walton , 441 Mass. 9, 10-11 (2004). Within ten days thereafter, the insurer may file and serve any opposition.
Decision of reviewing board affirmed .