Opinion
10-P-2236
10-18-2011
ROGER ADAM'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 the Department of Industrial Accidents reviewing board's (board) summary affirmance of the administrative judge's denial of his 2009 claim for permanent and total disability benefits. We affirm.
This appeal comes to this court after extensive proceedings. The employee, a former maintenance worker at Harvard University, was injured in an accepted industrial accident in 2004. As a result, the employee began receiving disability payments from the employer on a 'without prejudice' basis. In 2006, the employee applied for total temporary disability benefits pursuant to G. L. c. 152, § 34, claiming that he was unable to perform useful work. The administrative judge held a hearing, in which he reviewed the various medical and occupational reports, and found that the employee was not suffering from total incapacity. Rather, the administrative judge found the employee was capable of performing full-time work with certain restrictions, and therefore was partially disabled, and entitled to benefits under G. L. c. 152, § 35. (Adam I). The board summarily affirmed, from which no direct appeal was taken.
The employee returned to his original maintenance position on September 17, 2004. The employee continued working full time in that position until December, 2004, at which time he felt he could no longer fully complete his work due to the pain from his injury.
See Adam's Case, 22 Mass. Workers' Comp. Rep. 360 (2008).
In 2007, the employee claimed benefits for a permanent disfigurement pursuant to G. L. c. 152, § 36(1)(k), a claim that was heard and denied in 2008 (Adam II), by the same administrative judge who had decided Adam I. After review by the board, its amended decision was affirmed by this court in an unpublished decision pursuant to our rule 1:28. Adam's Case, 79 Mass. App. Ct. 1122 (2011).
In 2009, the employee brought the instant claim, again seeking § 34, or, in the alternative, § 34A benefits for total temporary and total permanent disability, respectively. The same administrative judge who had presided over the contested claims in Adam I and Adam II also heard the 2009 claims. He credited the employee's testimony that his condition had not changed significantly since 2007, and observed the employee's use of his arms in a vigorous manner during his testimony at the hearing. Based on the medical and vocational opinions he credited, the administrative judge determined that the employee had reached an end result, that he was capable of full-time light duty work with limitations as to lifting, and that he was partially disabled. The administrative judge therefore dismissed the claims for § 34 or § 34A benefits, and ordered the insurer to continue to pay partial disability benefits pursuant to the findings in Adam I.
On appeal, the employee argues that the administrative judge should have recused himself for bias against the employee, and, in the alternative, that the judge acted arbitrarily and capriciously in denying the employee's claim under §§ 34 and 34A.
1. Recusal. 'The matter of recusal is generally left to the discretion of the trial judge, . . . and an abuse of that discretion must be shown . . . .' Haddad v. Gonzalez, 410 Mass. 855, 862 (1991). 'To show that a judge abused his discretion by failing to recuse himself, [the claimant] ordinarily must show that the judge demonstrated a bias or prejudice arising from an extrajudicial source, and not from something learned from participation in the case.' Commonwealth v. Adkinson, 442 Mass. 410, 415 (2004). To properly determine bias, the judge must make a two-pronged inquiry. First, the judge must look to 'his own emotions and conscience,' and determine whether he is 'free[] from disabling prejudice.' Second, the judge must make an 'objective appraisal of whether this was a proceeding in which his impartiality might reasonably be questioned' (internal quotation marks and citation omitted). Lena v. Commonwealth, 369 Mass. 571, 575 (1976).
Here, the employee failed to put forth any facts demonstrating that the administrative judge abused his discretion. The motion to recuse, unsupported by any affidavit concerning the instant matter, makes only the general allegations that the administrative judge is 'compromised' or 'will give the appearance of being compromised.' In the hearing, the employee's counsel merely repeated his contention, stating that the administrative judge held a bias 'with regard to any employee who is represented by [counsel's] firm,' due to several unfavorable dispositions in the past. Such vague generalizations fail to sufficiently raise extrajudicial prejudice.
The employee makes reference in the motion to other cases in which similar motions for recusal were brought, alleging such cases provide support for the instant motion. However, the employee failed to submit any of the relevant documentation to support his most recent motion. In light of such, this court will not consider the employee's assertion that he made additional motions to recuse.
The employee further asserts in his brief that the administrative judge should have recused himself after the employee filed a complaint with the Commission on Judicial Conduct in a previous case. The complaint was dismissed for lack of jurisdiction. See Ellis v. Commissioner of the Dept. of Industrial Accs., 76 Mass. App. Ct. 1125 (2010) at n.7. Furthermore, the employee failed to include this evidence in the record appendix, and thus, we cannot consider it in reviewing the discretion exercised by the administrative judge. See Mass.R.A.P. 16(a)(4), as amended, 367 Mass. 971 (1975); Mass.R.A.P. 18, as amended, 428 Mass. 1601 (1998). Cf. Commonwealth v. Laliberty, 373 Mass. 238, 243-244 (1977) ('[O]ur obligation . . . to consider the whole case, extends only to the record on appeal').
Moreover, the administrative judge took the proper action to ascertain his own prejudice. The administrative judge heard the employee's argument at the hearing and thoughtfully considered the merits. After consideration of all the facts, the administrative judge decided he was able to make a fair and unbiased decision with regard to the claims in the instant case. That the administrative judge referenced previous motions for recusal made by the employee in declaring his decision to deny the motion only further demonstrates that the judge consulted both his internal conscience and the objective circumstances that may impact impartiality. See Lena, 369 Mass. at 575. Based on the record, the administrative judge properly exercised his discretion to deny the motion. See Haddad, 410 Mass. at 862.
2. Section 34 or § 34A benefits. Alternatively, in a one-page argument with no citation to authority, see Mass.R.A.P. 16(a)(4), the employee asserts that the administrative judge's decision was arbitrary and capricious and unsupported by the facts presented. '[W]here, as here, the . . . board summarily affirms and adopts without change the findings and decision of an administrative judge, [we] 'must look to that decision to determine whether the action of the board [was] correct." Coggin v. Massachusetts Parole Bd., 42 Mass. App. Ct. 584, 587 (1997), quoting from Nowak's Case, 2 Mass. App. Ct. 498, 499 (1974). We review the decision under the highly deferential standard of G. L. c. 30A, § 14(7)(a)-(d) & (f)-(g). See G. L. c. 152, § 12(2), as amended by St. 1991, c. 398, § 32A. See also Robinson's Case, 416 Mass. 454, 455-456 (1993). Our task is to determine 'whether the decision is factually warranted and not '[a]rbitrary or capricious,' in the sense of having adequate evidentiary and factual support and disclosing reasoned decision making.' Moss's Case, 451 Mass. 704, 712 (2008), quoting from Scheffler's Case, 419 Mass. 251, 258 (1994).
The evidence clearly shows that the administrative judge reviewed an abundance of facts and opinions, from several different sources. Specifically, the administrative judge relied on the employee's concession that his condition had not changed since 2007, at which time the same administrative judge, in Adam I, had found the employee to be partially disabled on the facts presented. The administrative judge also relied on the medical opinion that the employee's injury had reached an end result and that the employee could engage in full-time light work. The administrative judge's reliance on such evidence is clearly stated in his decision. As the administrative judge's decision is adequately supported by the evidence, it is neither arbitrary nor capricious. Consequently, the employee's claim is without merit.
Given the result we reach, the employee's request for appellate attorney's fees is denied.
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Decision of reviewing board affirmed.
By the Court (Kantrowitz, Graham & Fecteau, JJ.),