Opinion
No. 15–P–1669.
12-01-2016
Clarissa PEREZ'S CASE.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
The employee, Clarissa Perez, appeals from an adverse ruling by the reviewing board of the Department of Industrial Accidents (board) which affirmed an administrative judge's decision denying her claims for benefits under G.L. c. 152, §§ 34 and 35, and §§ 13 and 30. She argues that the administrative judge improperly applied the doctrine of claim preclusion to bar one of her claims, mischaracterized her medical history, and improperly declined to give her the benefit of a presumption of incapacity. We affirm.
Background. Perez has worked as an employment specialist at the Division of Career Services and Unemployment at Workforce Central in Worcester since 2004. She previously filed claims for benefits in connection with two injuries. The first injury allegedly resulted from a tripping accident on May 10, 2005. The second injury occurred when she attempted to move a desktop printer while she was seated in her office chair on October 15, 2008. A hearing on these two claims took place on January 14, and March 11, 2011. An administrative judge denied claims of incapacity for both injuries. He first determined that Perez did not suffer an industrial injury in 2005. Next, he ruled that although Perez did suffer a cervical strain as a result of the incident in 2008, she was only entitled to recover medical expenses for physical therapy for a four-month period. Perez did not appeal, but the self-insurer did, and the board affirmed.
In 2012, Perez filed two new claims for benefits, asserting that she had suffered another industrial injury when she fell down at work on November 15, 2010, and that her cervical condition resulting from the 2008 injury had deteriorated. Perez sought partial disability benefits from November 16, 2010, to November 8, 2012, and total incapacity benefits from November 9, 2012, to date, and continuing; she also sought medical benefits under §§ 13 and 30. The claims were denied at conference by a different administrative judge. Perez appealed, and a de novo hearing was scheduled.
Prior to the de novo hearing, Perez underwent an impartial medical examination (IME) pursuant to G.L. c. 152, § 11A, which was conducted by Dr. Charles Kenny. He concluded that Perez's 2008 accident became a major cause of her permanent partial disability and that it continued to contribute to her disability. Kenny's report and deposition were introduced at the de novo hearing, at which Perez testified. The administrative judge rejected Kenny's conclusion, in part because it was based upon the incorrect assumption that Perez's 2008 injury was caused by lifting a printer as opposed to merely moving it. The judge also discounted Perez's testimony, finding that she was not credible. The administrative judge further ruled that, under the doctrine of claim preclusion, Perez was barred from presenting claims for incapacity and medical benefits as a result of the injury she allegedly suffered on November 15, 2010. As we have noted, Perez appealed to the board, which affirmed the decision of the administrative judge.
Discussion. Perez first argues that the administrative judge, and then the board, incorrectly applied the doctrine of claim preclusion. We disagree. The doctrine of claim preclusion applies to workers' compensation cases. Compare Martin v. Ring, 401 Mass. 59, 63 (1987). Here, the doctrine was correctly applied because the record establishes that Perez could have brought her claim for injuries she allegedly sustained on November 15, 2010, at the same time she pursued benefits for the injury she sustained on May 10, 2005, and October 15, 2008. As previously observed, the hearings on those claims were held in January and March of 2011, and the evidentiary record closed on May 6, 2011. Therefore, we agree that the claim for benefits resulting from the November 15, 2010, incident is barred.
Next, Perez argues that the administrative judge erred when he discounted that portion of Kenny's opinion which relied on the mistaken assumption that Perez's 2008 injury was caused by lifting the printer rather than by moving it from a seated position. There was no error. Kenny's reliance upon an erroneous factual premise entitled the judge to discount his opinion that the 2008 accident had a significant impact upon an admittedly ongoing cervical condition that was not work-related. Similarly, the administrative judge was not bound to accept Kenny's conclusion on causation; the factual foundation of his conclusion was called into question by his reliance on information provided by Perez, whom the judge found not credible. See Brommage's Case, 75 Mass.App.Ct. 825, 828 (2009) ("the IME's report is not entitled to any weight unless the fact finder believes the facts on which the report is based").
Perez's final argument is that she was entitled to a presumption of incapacity from the time that she left work on November 15, 2012, until September 19, 2013, when she was informed by her employer that an ergonomic work station was available. However, as the Commonwealth notes in its brief, no such presumption has been recognized by our case law and, as a result, the judge did not err when he rejected this argument.
The unpublished memorandum and order issued pursuant to our Rule 1:28, Vallee's Case, 72 Mass.App.Ct. 1117 (2008), on which Perez relies does not constitute controlling authority and, in any event, is inapposite.
Decision of reviewing board affirmed.