Opinion
14-P-1072
05-05-2015
JOHNNY HINES'S CASE.
NOTICE: Summary decisions issued by the Appeals Court pursuant to its rule 1:28, as amended by 73 Mass. App. Ct. 1001 (2009), are primarily directed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, such 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. See Chace v. Curran, 71 Mass. App. Ct. 258, 260 n.4 (2008).
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
The employee appeals from a decision of the reviewing board of the Department of Industrial Accidents (board) summarily affirming the decision of an administrative judge (AJ) denying the employee's request for reinstatement of workers' compensation benefits.
Briefly, in 2005, the employee, then working as a personal care attendant, slipped and broke his right ankle, requiring surgeries to place and then later remove certain hardware. The employee applied for and received temporary total incapacity benefits. In 2007, the insurer moved to terminate the employee's benefits after conducting surveillance of him. The employee joined a psychiatric claim. An AJ, after viewing the surveillance video recordings and taking considerable additional evidence, discontinued the employee's benefits, generally reasoning that "[t]here is certainly no reason, based on the [surveillance] videotapes, that Mr. Hines could not be doing that sort of job [personal care attendant] today." The board affirmed that decision, and this court dismissed the appeal from the board's decision for a lack of prosecution.
The employee then filed a claim on May 20, 2010, for ongoing benefits pursuant to G. L. c. 152, §§ 13, 13A, 30, 34, 34A, and 35, from November 24, 2009, to date and continuing, in effect for the reinstatement of his benefits, generally arguing that both his physical and mental condition had deteriorated. A second AJ allowed both parties to submit additional medical evidence and both did so. After considering the evidence, the AJ essentially determined that "Mr. Hines'[s] condition has not deteriorated either orthopedically or in relation to his mental health." Following a summary affirmance by the board, this appeal followed.
In connection with a summary decision of the board, we review "the findings and reasoning of the administrative judge," Dalbec's Case, 69 Mass. App. Ct. 306, 313 (2007), and consider "whether the decision is factually warranted and not '[a]rbitrary or capricious,' in the sense of having adequate evidentiary and factual support and disclosing reasoned decision making within the particular requirements governing a workers' compensation dispute." Scheffler's Case, 419 Mass. 251, 258 (1994), quoting from G. L. c. 30A, § 14(7)(g).
The employee essentially argues that the AJ's decision should be set aside because it is beyond the scope of her authority and is otherwise arbitrary or capricious. Specifically, he contends that the AJ failed to consider his vocational expert's written opinion, dated July 14, 2008, and that the AJ's subsidiary findings are inadequate.
First, the employee claims that since the AJ did not make specific mention in her decision of the report from Rhonda Jellenik, the employee's vocational expert, he failed to consider it. While it is true that the introductory exhibit list in the AJ's decision identifies exhibit 9 only as the expert's curriculum vitae (CV), it is clear from the hearing transcript that the report and CV had been admitted in evidence together as exhibit 9. Additionally, this report was the subject of a specific discussion during the hearing -- regarding its previous admission in evidence during the expert's testimony at the July 18, 2008, hearing on the insurer's discontinuance petition, and regarding its not having been updated since that time. Furthermore, during the hearing at issue here, counsel for the employer and insurer requested, and the AJ agreed, to take judicial notice of the transcript of counsel's cross-examination of the expert at the prior hearing. We are satisfied that the AJ considered the report and, as she stated during the current hearing, gave it appropriate weight, but chose to expressly credit the opinions given by the insurer's vocational expert.
It having been determined previously that the employee was not disabled, the employee bore the burden of proving that his condition had changed between the date of the prior evidentiary hearing and the date of the evidentiary hearing in the present case. See Foley's Case, 358 Mass. 230, 232 (1970); McEwen's Case, 369 Mass. 851, 854 (1976). "The decision of the board must be upheld unless it is wholly lacking in evidentiary support, or a different conclusion is required as a matter of law." McElroy's Case, 397 Mass. 743, 745 (1986).
The AJ concluded, supportably in our view, that the employee had not met his burden to prove a deterioration in his condition. Consequently, the AJ's decision that the employee's condition had not deteriorated and that the employee's present physical problems are not causally related to his 2005 industrial accident is neither arbitrary nor capricious, the AJ having given credit to the various medical experts providing opinions on the physical and psychiatric issues. Questions of fact decided by an AJ or the board will not be reexamined if there is evidence to sustain the findings. See Griffin's Case, 315 Mass. 71, 73 (1943); Hachadourian's Case, 340 Mass. 81, 85 (1959).
Decision of reviewing board affirmed.
By the Court (Grainger, Meade & Fecteau, JJ.),
The panelists are listed in order of seniority.
Clerk Entered: May 5, 2015.