Opinion
11-P-1607
06-04-2012
TARA MAYS'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
Tara Mays (employee) appeals from a decision of the reviewing board of the Department of Industrial Accidents which summarily affirmed an administrative judge's determination that the employee failed to meet her burden of proving she is entitled to ongoing partial disability benefits pursuant to G. L. c. 152, § 35, after November 14, 2005. We affirm.
When the reviewing board summarily affirms, we review the findings and conclusions of the administrative judge to determine whether the action of the reviewing board is correct. Patterson v. Liberty Mut. Ins. Co., 48 Mass. App. Ct. 586, 587 n.3 (2000), citing Coggin v. Massachusetts Parole Bd., 42 Mass. App. Ct. 584, 587 (1997).
Background. This case has a long procedural history. It is uncontested that the employee suffered an industrial accident in July of 2004, when she developed chemically induced bronchitis from exposure to certain chemicals during the course of her employment with Alpha Industries (employer). She remained out of work until July of 2005, when she took a part-time job as a residential counselor in a group home for mentally disabled residents. She became employed full time in December of 2005 and has remained employed in a similar capacity, but at a lower rate of pay than she earned with the employer. She underwent an impartial medical examination on November 14, 2005, and the insurer sought to terminate benefits from that date.
Following an evidentiary hearing, the administrative judge, relying on the report of the impartial medical examiner (IME), concluded that the employee was not entitled to any benefits after November 14, 2005. The reviewing board summarily affirmed. On appeal to this court, we noted that the IME's report, when read in conjunction with his deposition, 'failed to definitively establish' whether or not a disability exists because he could not reach a conclusion as to whether the employee could return to the type of work she had been doing previously. Mays's Case, 72 Mass. App. Ct. 1116 (2008). The IME had opined that an employer would be prudent to ensure that the employee was capable of tolerating further chemical exposures by having 'various inhalation challenge tests' performed under the supervision of a physician. In these circumstances, we concluded that the employee should have been entitled to introduce additional medical evidence, and we remanded for further proceedings.
A second administrative judge conducted a new evidentiary hearing. In addition to her own testimony, the employee submitted two expert medical opinions concluding that she remained partially disabled from employment that would result in chemical exposure. The administrative judge, however, found that the employee's testimony covering the period after November 12, 2005, was not credible and that the opinions offered by the employee's experts were not persuasive. The administrative judge relied on the same evidence from the IME previously submitted to deny benefits. The reviewing board vacated the administrative judge's decision stating that he had mischaracterized the IME's opinion on medical disability and it was error to rely on it to determine whether the employee was able to return to work involving chemical exposures. The reviewing board remanded to the administrative judge for further findings.
This time, on remand to the administrative judge, neither party offered any additional evidence, instead asking the administrative judge to issue a decision on the evidence previously submitted. The administrative judge determined that the employee had not met her burden because he did not credit the employee's testimony, the IME opinion was incomplete, and he had been given no reason to reconsider his opinion of the persuasiveness of the medical evidence offered by the employee during the prior hearing. He denied all benefits after November 12, 2005. The reviewing board summarily affirmed, and the employee appeals.
Discussion. 'In a workers' compensation case, the employee has the burden of proof as to all the elements of the claim including [her] entitlement to partial incapacity benefits.' Cassola's Case, 54 Mass. App. Ct. 904, 905 (2002). The administrative judge essentially rejected all of the medical evidence opining that the employee remained disabled from work which would expose her to chemicals and also found the employee not to be credible with regard to ongoing disability after November of 2005. The employee takes the position that the judge failed to give sound reasons for rejecting her experts' 'uncontradicted' medical opinions. See Narducci v. Contributory Retirement Appeal Bd., 68 Mass. App. Ct. 127, 137 (2007). There was evidence in the record, however, which allowed the judge to rationally reject the medical opinions offered by the employee. See ibid. ('All that is required is that the record contain facts which make rejection of such expert evidence reasonable'). The IME indicated that he could not form an opinion whether the employee continued to be disabled from jobs which would entail exposure to chemicals because additional testing was required in order to draw that conclusion. There is no indication that the expert opinions relied on by the employee were based on any additional testing. The administrative judge also emphasized that he did not find the employee credible.
The employee next argues it was error for the judge to discredit her testimony for the entire time period from 2005 to the present on the basis of her bizarre behavior in 2008, which was attributed to depression or a personality disorder. Given the absence of medical opinion credited by the administrative judge which causally connects the workplace injury to any ongoing symptoms, we need not address this issue. We simply note that credibility determinations of an administrative judge of the Department of Industrial Accidents are final unless erroneous as matter of law. Lettich's Case, 403 Mass. 389, 394-395 (1988). Ingalls's Case, 63 Mass. App. Ct. 901, 901 (2005).
In sum, the employee has had a full and fair opportunity to litigate her case, and we discern no reversible error in the reviewing board's decision.
The employee is not entitled to attorney's fees.
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Decision of the reviewing board affirmed.
By the Court (Cohen, Grainger & Milkey, JJ.),