Opinion
BOARD No. 08479289
Filed: May 21, 1997
REVIEWING BOARD DECISION
(Judges Wilson, Fischel and Kirby)
Judge Kirby no longer serves as a member of the reviewing board.
APPEARANCES
James A. McDonald, Jr., Esq., for the employee.
Ronald N. Sullivan, Esq., for the insurer.
The employee appeals from a decision in which an administrative judge denied and dismissed her claim for further weekly incapacity and medical benefits based on an accepted 1989 industrial injury. The employee's weekly benefits had been discontinued pursuant to an earlier hearing decision in 1992, as the administrative judge at that proceeding determined that the employee was capable of earning at least as much as her pre-injury average weekly wage. The employee first contends that the present judge incorrectly dismissed her claim for further weekly incapacity benefits. We summarily affirm the finding that the employee could earn her former average weekly wage. Secondly, the employee asserts that the judge erred by denying her claim for further treatment of her industrial injury, where the § 11A examiner opined that such treatment would be appropriate. We agree with the latter contention and recommit the case for further findings regarding the employee's entitlement to § 30 medical benefits.
The employee injured her back on November 15, 1989. (Dec. 4.) The insurer accepted the claim for workers' compensation benefits, and paid the employee until the November 4, 1992 hearing decision allowed the insurer's request for discontinuance as of August 30, 1991. (Dec. 2, 5.) The employee did not appeal that decision to the reviewing board. (Dec. 11.) The employee then filed the present claim, alleging that her medical condition had started to worsen in 1993, and claiming ongoing § 35 partial incapacity benefits as of June 1, 1994, along with § 30 medical benefits. (Dec. 2, 5.) The judge dismissed the employee's claims in the hearing decision at issue. (Dec. 2, 12.)
We discern no error in the judge's denial of the employee's claim for weekly incapacity benefits. We summarily affirm the decision as to that result, as it is grounded in the medical evidence and in credibility findings that are not subject to our review. See Francis v. Sheraton Tara Hotel, 10 Mass. Workers' Comp. Rep. 161, 164 (1996).
The employee correctly points out, however, that the decision is bare of findings as to the employee's claimed entitlement to § 30 benefits for treatment of the accepted work injury. Without subsidiary findings addressing the issue, we have no basis on which to review the judge's denial of that aspect of the employee's claim. See Cabral v. Aerovox, Inc., 9 Mass. Workers' Comp. Rep. 536, 537 (1995).
The question of entitlement to compensation for reasonable and necessary treatment pursuant to § 30 requires a separate analysis from that undertaken to reach an incapacity determination. The issue is not foreclosed by a denial of further weekly indemnity payments. See Carney v. M.B.T.A., 9 Mass. Workers' Comp. Rep. 492, 495 (1995). A judge's finding regarding the reasonableness or necessity of medical treatment must be based on expert medical testimony. See Santana v. Belden Corp., 5 Mass. Workers' Comp. Rep. 356, 358 (1991). It is apparent from the record that at least two diagnostic procedures were at issue, a mylogram and another CT Scan, both of which the impartial physician considered to be reasonable and necessary treatment. (Dep. of Dr. DiTullio, 20-21.) We recommit the case for the judge to make findings on the reasonableness and appropriateness of whatever medical treatments are in dispute. If the judge's assessment differs from that of the prima facie opinion of the § 11A physician, he must give specific reasons for his rejection of that opinion, based on evidence warranting a different conclusion. See Santana v. Belden Corp., supra at 359; Bedugnis v. Paul McGuire Chevrolet, 9 Mass. Workers' Comp. Rep. 801, 802-803 (1995); Cook v. Farm Service Stores, 301 Mass. 564, 566 (1938).
So ordered.
_________________________ Sara Holmes Wilson Administrative Law Judge
_________________________ Carolynn N. Fischel Administrative Law Judge
Filed: May 21, 1997