Opinion
14-P-1567
06-19-2015
JOSE SOSA'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 summarily affirming the decision of the administrative judge denying the employee's claim for incapacity and medical benefits. We affirm.
Because the reviewing board summarily affirmed the administrative judge's decision, we "examin[e] the findings and reasoning of the administrative judge." Whitman's Case, 80 Mass. App. Ct. 348, 352 (2011). Dalbec's Case, 69 Mass. App. Ct. 306, 313 (2007).
The employee suffered an accepted industrial injury to his left upper extremity on May 1, 2007. In a prior proceeding before the same administrative judge, the employee was awarded temporary total incapacity benefits pursuant to G. L. c. 152, § 34, from July 2, 2007, to November 14, 2007, for a sprain/strain injury to his cervical spine and left shoulder. The employee appealed that decision to the reviewing board, which summarily affirmed. No further appeal was taken.
In January, 2012, the present claim was filed by the employee seeking § 34 incapacity benefits and § 35 medical benefits related to injuries to his upper left arm/shoulder and neck caused by the same industrial accident.
The administrative judge determined res judicata and collateral estoppel did not bar this action; the insurer does not argue otherwise. See G. L. c. 152, § 16.
The administrative judge found that the employee was "not . . . a credible person in general," and specifically found that the employee's complaints of pain were not credible. The claim was denied, and the employee requested the appointment of an impartial examiner. The impartial examiner determined that the employee continues to suffer impairment from the industrial injury, but that he had reached a medical end result and no further treatment was indicated. He opined that the employee was capable of full-time employment with restrictions.
The administrative judge determined the report to be adequate and adopted many of the impartial examiner's findings. However, he rejected the impartial examiner's conclusions because the impartial examiner had credited the employee's statements regarding the injury and his pain, contentions which the judge had already found not to be credible.
On appeal the employee argues that the administrative judge's credibility determination is arbitrary and capricious as it is not based on evidence in the record, does not disclose reasoned decision making, and the basis of the credibility determination is unrelated to any of the substantive elements of the employee's claim.
It is well settled "that an administrative judge in the Department of Industrial Accidents . . . need not adopt the conclusions of an impartial medical examiner's . . . report in a workers' compensation case where the judge finds the factual foundation of the report not credible." Brommage's Case, 75 Mass. App. Ct. 825, 825 (2009), citing Dalbec's Case, 69 Mass. App. Ct. 306, 313-316 (2007). In addition we have held 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." Brommage's Case, supra, 827, quoting from Pilon's Case, 69 Mass. App. Ct. 167, 169 (2007).
Here, the administrative judge had the opportunity to observe the employee's testimony in two separate proceedings and found his complaints of pain to be not credible. In addition, he found the employee's description of how the accident occurred to be inconsistent and lacking credibility. As noted by the administrative judge, these findings go to the issues of incapacity and causation, necessary elements of the employee's claim for compensation. Given the deference we accord an administrative judge's credibility determinations, the judgment must be affirmed.
So ordered.
By the Court (Vuono, Wolohojian & Sullivan, JJ.),
The panelists are listed in order of seniority. --------
Clerk Entered: June 19, 2015.