Opinion
19-P-1455
06-04-2020
DAVID A. NUNES'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
In this workers' compensation case, David A. Nunes claimed he injured his neck and head while operating a backhoe for his employer, C. Naughton Corp. (C. Naughton or employer). Nunes's claims for workers' compensation benefits pursuant to G. L. c. 152, § 10, were denied after a hearing before an administrative judge (AJ) of the Department of Industrial Accidents (DIA). A reviewing board of the DIA summarily affirmed the denial. On appeal, Nunes claims that the AJ erred by failing to make adequate subsidiary findings of fact and by failing to admit a medical examiner's report in evidence. We affirm.
Background. Nunes, a fifty-seven year old experienced heavy equipment operator, testified that on January 5, 2015, he was operating a backhoe for his employer when he "hit a patch of raised asphalt and . . . stopped short." He lurched forward and felt pain radiate from his head down the left side of his body. He finished his shift but experienced neck pain and headaches the following day. Nunes also described similar incidents that occurred more than one year later on February 5, 2016, and February 10, 2016. Nunes further testified that he was injured when he hit his head exiting a truck on March 29 or 30, 2016. He claimed that these events in 2016 aggravated the symptoms resulting from his initial injury on January 5, 2015.
After considering Nunes's testimony, the testimony of C. Naughton's president, Nunes's medical records, and the deposition testimony of two medical experts, the AJ rejected each of Nunes's claims for benefits, concluding that Nunes's testimony was not credible.
Discussion. "We review a board's decision regarding workers' compensation benefits under the usual standard for appeal from a final decision of an administrative agency set forth in G. L. c. 30A, § 14 (7)." Wadsworth's Case, 461 Mass. 675, 679 (2012). "In cases where the department's reviewing board summarily affirms the decision of an administrative judge, the reviewing court inspects the findings and reasoning of the administrative judge." Brommage's Case, 75 Mass. App. Ct. 825, 827 (2009). "We consider whether the decision is factually warranted and not [a]rbitrary or capricious, in the sense of having adequate evidentiary and factual support" (quotations and citations omitted). Id. We "give due weight to the experience, technical competence, and specialized knowledge of the agency, as well as to the discretionary authority conferred upon it." G. L. c. 30A, § 14 (7).
Nunes's principal claim on appeal is that the AJ's assessment of Nunes's credibility was not supported by subsidiary findings of fact. We disagree. The AJ explicitly found, based on the employer's testimony, that Nunes never provided notice of any injury to his employer before filing his claims. This finding supported the AJ's conclusion that Nunes's contrary testimony was not credible. The AJ also referenced Nunes's demeanor during his testimony as further support for her credibility determination. The AJ was in the best position to evaluate Nunes's demeanor, and we defer to her credibility assessment unless it was clearly erroneous. See Lettich's Case, 403 Mass. 389, 394-395 (1988). Based on the record before us, we cannot reasonably say that the AJ's credibility assessment was clearly erroneous.
While the deposition testimony of two medical experts supported Nunes's claim for benefits, the AJ was not required to credit that testimony. See Brommage's Case, 75 Mass. App. Ct. at 825 (judge need not adopt conclusions of impartial medical examiner where judge finds foundation of report not credible).
Nor are we persuaded by Nunes's argument that the AJ erred when she excluded the report of independent medical examiner Dr. Leslie Stern. The employer's insurer, Charter Oak, retained Dr. Stern to examine Nunes pursuant to G. L. c. 152, § 45. Neither Charter Oak nor Nunes offered the report in evidence at the hearing. Nunes submitted Dr. Stern's report three days after the hearing, suggesting that its admissibility had been the subject of a stipulation. On July 3, 2018, the AJ allowed Charter Oak's motion to exclude the report and she did not consider it in her decision. We discern nothing arbitrary or capricious in the AJ's exclusion of the report. First, the record does not support Nunes's argument that Charter Oak stipulated that the report should be admitted. Second, as a matter of law, "a party may offer as evidence medical reports prepared by physicians engaged by said party." 452 Code Mass. Regs. § 1.11(5). See Wodzenski v. Hilltop Steak House, 6 Mass. Workers' Comp. Rep. 105, 106 (1992). Therefore, the report was admissible only if offered by the party that retained the expert, in this case Charter Oak.
Nunes's contention that Charter Oak waived argument regarding the admissibility of Dr. Stern's report because of an earlier stipulation is not supported by the record.
Decision of reviewing board affirmed.
By the Court (Sullivan, Kinder & Lemire, JJ.),
The panelists are listed in order of seniority.
/s/
Clerk Entered: June 4, 2020.