Opinion
11-P-991
04-06-2012
CAROL WAREING'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
The employee appeals from a decision of the reviewing board (board) of the Department of Industrial Accidents summarily affirming an administrative judge's (AJ) determination that she was not entitled to benefits under G. L. c. 152, § 34.
The employee was hired by Merrimack College as an associate professor in 2000, and was granted tenure in 2004. In March, 2005, she took a leave of absence to care for her husband, who died in July of that year. As a result of her own health problems the employee did not return to work until January, 2008, when she resumed teaching with certain restrictions imposed by her doctor. Soon thereafter, on February 4, 2008, the employee was removed from the classroom after several students complained about her inappropriate behavior. The conduct at issue (which the employee does not contest), included warning her students not to call for help in the event she had a seizure. The employee instructed the students that they should provide treatment if she needed it, and threatened to fail any student who called 911. The employee claimed that she suffered a seizure upon being informed (in an allegedly harsh tone) that she could no longer teach. The employee was paid for the remainder of the semester, but she did not return to work. Ultimately, the employee accepted a severance package.
The employee attempted to return to work twice, once in 2006, and agin in 2007. Neither attempt met with success.
As to the § 34 claim before us, the employee was examined by the impartial medical examiner (IME), who also reviewed the employee's lengthy medical history. That history included headaches, neurological events including seizures, mood swings, depression, and at least three psychiatric hospitalizations. The IME opined that while the employee did indeed suffer from some limited form of preexisting epilepsy, her more recent behavior and overt 'seizures' appeared to be related to a bipolar condition and various other emotional disabilities or conditions, none of which were related to her employment. The IME specifically opined that while the employee was totally disabled, none of the alleged incidents (or the employee's general working conditions) caused the employee's epileptic condition to worsen or otherwise contributed in any manner to her disability. As to the employee's reaction to her dismissal, the IME stated that it was 'suggestive of a fainting spell of emotional origin' and not an epileptic seizure.
The AJ adopted the IME's opinion, concluding that while the employee undoubtedly 'presented the truth as she understood it in her testimony,' that testimony was not credible.
We conclude that the determination that the employee's disability bears no causal relationship to her employment is factually warranted and not '[a]rbitrary or capricious.' Carpenter's Case, 456 Mass. 436, 439 (2010), quoting from G. L. c. 30A, § 14(7). In the absence of any contrary medical evidence, the AJ was entitled to rely upon the IME's report and physical evaluation, both of which were more than adequate to support his conclusion that the employee did not suffer an industrial injury. See May's Case, 67 Mass. App. Ct. 209, 214 (2006) ('Under G. L. c. 152, § 11A, in the absence of contradictory medical evidence, the impartial physician's determination whether an employee's disability has as its predominant contributing cause an injury arising out of the course of the employee's employment must be accepted as true').
Finally, we reject the employee's argument that we should apply the combination injuries provision of G. L. c. 152, § 1(7A). As noted, the medical evidence established that the employee's disability is not work related, much less was work a major cause of her disability. Moreover, even if we were to assume otherwise, the evidence unequivocally established that the actions of the school's administrators were 'bona fide, personnel' decisions.
General Laws c. 152, § 1(7A), as amended by St. 1991, c. 398, § 14, provides in pertinent part: 'If a compensable injury or disease combines with a pre-existing condition, which resulted from an injury or disease not compensable under this chapter, to cause or prolong disability or a need for treatment, the resultant condition shall be compensable only to the extent such compensable injury or disease remains a major but not necessarily predominant cause of disability or need for treatment. No mental or emotional disability arising principally out of a bona fide, personnel action including a transfer, promotion, demotion, or termination except such action which is the intentional infliction of emotional harm shall be deemed to be a personal injury within the meaning of this chapter.'
The employee's argument that the judge's failure to take judicial notice of the Americans with Disabilities Act is reversible error does not merit discussion. The Act is not applicable in these circumstances.
Decision of reviewing board affirmed.
By the Court (Kantrowitz, Berry & Vuono, JJ.),