Opinion
No. 12–P–192.
2013-03-7
Alan WELLS'S CASE.
By the Court (TRAINOR, BROWN & MILKEY, JJ.).
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
The insurer appeals from a summary disposition of the Department of Industrial Accidents reviewing board (board),
affirming an administrative judge's (AJ) decision that found the employee totally disabled by reason of his work-related injuries and awarded the employee G.L. c. 152, § 34, benefits in the amount of $477.01 per week for the period of January 5, 2010 (the employee's last day of work) and continuing. The insurer claims that the AJ improperly opened the medical evidence.
See Coggin v. Massachusetts Parole Bd., 42 Mass.App.Ct. 584, 587 (1997).
The employee began work as a truck driver in late 2007. The employee's job was to deliver full propane tanks (some of which weighed in excess of 100 pounds) to customers, pick up the customers' empties, and then return the empties to the employer. By late 2008 the employee began experiencing pain in his neck and arms. The pain continued to worsen over the next year, involving his neck, arms, knees, and feet. The employee last worked in January, 2010. Since that time, the employee has been treated with various disciplines and has twice had surgery for carpel tunnel syndrome (once on each arm). The employee continues to experience neck, back, and leg pain. Although the exact date is not certain, the employee submitted a notice of injury to the insurer but the insurer did not timely deny the claim or make payment as required by G.L. c. 152, § 7. Accordingly, the AJ awarded the employee $200 in § 7 penalties and deemed the insurer's substantive defenses waived. Nonetheless, as the AJ noted, the employee retained “his burden of proving every element of his claim.” The insurer does not raise any issue as to the § 7 penalty.
The employee was examined by a G.L. c. 152, § 11A, impartial medical examiner (IME) who generally opined that some of the employee's complaints “may” have been work related. The employee then filed a motion to open the medical evidence, pointing out that the IME's causation opinion was inadequate because after the IME examined him, he twice had carpel tunnel surgery. See O'Brien's Case, 424 Mass. 16, 21 (1996). The AJ allowed the motion, noting that, “[b]ecause of intervening surgeries additional medical evidence was allowed.” See id. at 22.
The insurer appeals from the board's summary disposition arguing primarily that the AJ improperly opened the medical evidence. See Merisme v. Board of Appeals on Motor Vehicle Liab. Policies & Bonds, 27 Mass.App.Ct. 470, 474 (1989).
Both the employee and the insurer took advantage of the AJ's decision the employee submitting an opinion from Dr. Whitelaw, the insurer submitting an opinion from Dr. Nairus. The insurer's doctor, Narius, found that the employee was permanently, partially disabled, but that only his carpal tunnel syndrome was related to his work and that it only inhibited his fine motor skills. The employee's doctor, Whitelaw, concluded that the employee was totally disabled and that each of the employee's complaints was caused by the heavy lifting and driving the employee was required to do on his job. The AJ could permissibly find (as he did) the employee's doctor the more credible and persuasive, and accordingly make the award mentioned above. See Fitzgibbon's Case, 374 Mass. 633, 636 (1978). The AJ summarized:
“I find that the employee is totally disabled and has been totally disabled since January 5, 2010. This total disability is related to the employee's neck, shoulder, arms, wrists, knees and feet injuries. In making this determination, I rely on the credible testimony of the employee and the persuasive medical opinions of Dr. George Whitelaw. Several of the employee's treating doctors who have been discussed above also provide support for the employee's claim. As the insurer has lost its defenses I do not need to discuss the vocational expert's report or the insurer's section 1(7A) defense. I would note that Dr. Whitelaw appears to adequately address the section 1(7A) issue.”
As previously mentioned, the insurer's only substantive arguments are to the effect that the AJ should not have opened the medical evidence, and that the § 11A IME's causation opinion was not inadequate as matter of law and, therefore, the AJ abused his discretion by reopening the evidence.
The insurer specifically contends that the AJ erred in allowing additional medical evidence for all purposes,
and then only rely on the expert opinion of Dr. Whitelaw, the employee's doctor.
Interestingly, the insurer apparently concedes that the IME's opinion was, in fact, inadequate as to the employee's neck and carpal tunnel issues, complaining instead that the IME's other opinions (i.e., shoulder, knees, and feet) were fully adequate. In any event, the employee's carpal tunnel surgeries was not the only ground upon which the AJ reopened the evidence.
The insurer's assertion that the judge abused his discretion by allowing additional medical evidence into the record for all purposes misses the mark. “Nothing in § 11A ... requires the administrative judge to adopt the conclusions of the report or precludes him from considering additional medical evidence once it becomes part of the record.” Coggin v. Massachusetts Parole Bd., 42 Mass.App.Ct. 584, 589 (1997). The judge was free to consider the additional medical evidence in its entirety and determine its persuasiveness. “Findings of fact, assessments of credibility, and determinations of the weight to be given the evidence are the exclusive function of the administrative judge.” Pilon's Case, 69 Mass.App.Ct. 167, 169 (2007).
Decision of reviewing board affirmed.