Opinion
No. 15–P–1320.
09-02-2016
Barry C. BUCKLEY's Case.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
The employee, Barry C. Buckley, appeals from a decision of the reviewing board of the Department of Industrial Accidents (board), summarily affirming a decision by an administrative judge after remand from the board, denying the employee's claim for benefits under G.L. c. 152, § 34A, from January 1, 2010, and ongoing. We affirm.
“Because the board summarily affirmed, we review the findings and conclusions of the administrative judge.” Eady's Case, 72 Mass.App.Ct. 724, 725–726 (2008).
It is uncontested that the employee suffered two compensable work-related back injuries on May 10 and October 13, 1992 (the 1992 injuries). Both were accepted by his employer, Boston Edison Company, and he received temporary benefits. Specifically, on May 10, 1992, the employee injured his low back and left buttocks area when he fell (from a height that the administrative judge, on conflicting evidence, determined to be approximately four feet) into a manhole and struck his back on a metal stanchion. The administrative judge credited the initial medical reports that diagnosed the employee with a “thigh/back contusion ” but no fractures or other indicators of injury other than muscle contusions. X-rays were negative. The employee underwent a course of physical therapy. He returned to work in a light duty capacity within six weeks and resumed full duties two weeks later. The administrative judge found that he continued to feel acute pain in his groin, hip, both legs, and back and that his coworkers accommodated his needs for about three weeks. By July 2, the employer's medical center's note reflects that the employee reported feeling well with no discomfort and that his lumbar range of motion was full without pain. He was not followed at the employer's medical center for the May injury after that visit.
Notes from the employer's medical center indicate he had returned to light duty by June 18, 1992, and a Department of Industrial Accidents form indicates that benefits terminated on June 2, when the employee returned to work.
On October 13, 1992, the employee was pulling a wet plank from a manhole when he felt a twinge in his back and sharp pain between his shoulder blades. X-rays on that date were normal. He was seen on October 20, 1992, at New England Baptist Hospital Back Clinic and was noted to have a marked left paravertebral muscle spasm. Dr. Rainville of the New England Spine Care Center ordered that he could return to work full time but with a lifting restriction of forty pounds for one month. On December 16, 1992, Dr. Rainville ordered an eight-hour work day for two to four weeks and a health club membership for one year with a diagnosis of “subacute low back pain and deconditioning.” The employee participated in physical therapy through December 10, 1992, but did not keep his appointments thereafter and did not call to schedule more. The physical therapist did note initial reports of pain in his low back and both hips and buttocks. It appears that the employee returned to work on or before February 4, 1993. So far as the record reveals, there was no diagnosis of sciatic pain from this injury. The administrative judge concluded that the employee sustained an acute lumbar strain arising out of and in the course of his employment on October 13, 1992.
He was also noted to have a history of a functional scoliosis due to a leg length discrepancy arising from a femur fracture as a child.
The board's first decision noted that the administrative judge made no specific finding as to when the employee returned to work following this injury, but noted evidence that he returned on February 4, 1993. A physical therapy note on November 4, 1992, states that the employee was working light duty.
On September 9, 1993, the employee reported to his employer that he suffered a recurrence of low back pain after shoveling at work. It does not appear that he received any benefits due to that incident, but he asserts he returned to physical therapy. By September 15, he reported some improvement to his employer's medical center, and a September 22 note from the center reflects that he denied low back pain, and also denied radiation, weakness, and numbness, and that the plan was to return to regular duty.
Thereafter, the employee did not again report to his employer back pain related complaints which he ascribed to his 1992 injuries until January 10, 2000. It was not until April of 2007 that he missed several weeks of work due to chronic low back pain, radiating into both legs, which he related to his injury in 1993. Thereafter he was seen fairly regularly in the employer's medical center regarding his chronic back pain and depression.
After September of 1993, the employee next visited the employer's medical center on February 13, 1995, when he was seen upon his return to work following a January 19, 1995, motor vehicle accident from which he suffered a cervical strain. Following his visit in January 1, 2000, he was next seen in the medical center in February and March of 2000 due to cardiac and other medical issues, and in 2002 following another motor vehicle accident on March 24, 2002, which caused a right shoulder injury ultimately requiring surgical repair.
The administrative judge found that there was no medical evidence that the employee sought treatment for any condition arising from the 1992 injuries between September of 1993 and December 29, 1999. The employee points out that he reported low back pain to his primary care physician at a “routine comprehensive history and physical examination” in February of 1998. Dr. Busch's note reflects that “an MRI on December 23, 1997, showed a disc bulge at L5–S1 with a central protrusion” and that “[t]he orthopedic doctor the employee saw thought the bulge is responsible for his sciatic symptoms.” The MRI report and the note of the referenced orthopedist are not in the record, and Dr. Busch's note does not reflect the onset or cause of the employee's back pain. The employee followed up with Dr. Busch on March 5, 1998; Dr. Busch noted that the employee (i) currently was receiving physical therapy, (ii) was considering epidural steroids, (iii) had not missed any work because of his back pain, and (iv) that it was an excellent idea to return to New England Baptist Hospital for an opinion on his back pain.
Dr. Busch further noted that the employee was controlling his pain with occasional use of Darvocet two times a week and that he continued to work for the employer primarily as an inspector and “this job seems to be okay for his back.”
The employee was seen at the Spine Center at New England Baptist Hospital on December 29, 1999, and was diagnosed with chronic low back pain due to disc degeneration at L4–5 and L5–S1 and mild recurrence of deconditioning. He was advised to resume his exercise and stretching regimen.
The employee next was seen on January 23, 2001, by Dr. Zolot. He reported to Dr. Zolot that he had been injured at work nine years ago and “ever since” has had “severe back pain which has become progressively worse.” He was diagnosed with “chronic lower back pain, most likely secondary to advanced degenerative lumbar spine disease ” and suspicion of “left side L4–5 disc herniation as he has clinical signs of pretty severe left side sciatica.” While continuing to work full time, he was treated for several years by Dr. Zolot with a combination of monthly trigger point injections and pain medication including Oxycontin, Percocet, Vicodin, and Valium. The administrative judge expressly rejected Dr. Zolot's opinion on causal relationship because it was based on the employee's subjective complaints of “severe” low back pain “ever since” the 1992 incidents. Moreover, the administrative judge found that the “examination” and “treatment plan” sections of Dr. Zolot's records from December 22, 2003, through February 15, 2007, “are virtually identical, and often verbatim copies of each other, which I find diminishes their probative value.” The administrative judge also found that MRI reports on January 31, 2001, January 9, 2003, September 6, 2007, December 17, 2008, and March 24, 2011, showed no nerve root impingement, mild degenerative disc disease and actual improvement between the 2008 MRI and the 2011 MRI.
After 2007, the employee was treated for progressively worsening back pain and bilateral sciatica by multiple physicians and eventually by psychiatrists as he developed a depressive disorder from chronic pain and other stressors. He stopped working on December 31, 2009.
The employee's claim for benefits from January 1, 2010, and continuing was denied at hearing and a de novo hearing was held. The administrative judge concluded that the employee had failed to meet his burden of proving that his chronic back pain and depression were causally related to the 1992 injuries. The administrative judge reasoned that “[t]he injuries sustained on those dates were thigh and back contusions, hamstring pull, and lumbar strain. These were treated conservatively, and the employee was able to return to full duty.” On appeal, the board rejected most of the employee's claims of error, but noted that the administrative judge, in summarizing the 1992 injuries, failed to include “sciatica,” which had been included on the billing sheet of one of his original treating physicians and remained one of the employee's current complaints. Because the administrative judge had relied in part on the absence of any diagnosis of sciatica in reaching his conclusion that there was no causal relationship, the board recommitted the matter for further findings of fact and rulings of law on that issue.
On remand, the administrative judge explained that even considering a diagnosis of left sciatica in 1992, he relied on the absence of treatment for an extended number of years following the 1992 injuries and 1993 shoveling incident. Moreover, he noted in his first decision that he credited and relied on the opinions of two impartial medical examiners, who opined that the work injuries did not cause the employee's present chronic back pain or depressive disorder.
Discussion. We review a reviewing board's decision pursuant to the standards set forth in G.L. c. 30A, § 14, with the exception of § 14(e). G.L. c. 152, § 12(2). Carpenter's Case, 456 Mass. 436, 439 (2010). “[W]e consider ‘whether the decision is factually warranted and not “[a]rbitrary and capricious,” in the sense of having adequate evidentiary and factual support and disclosing reasoned decision making.’ “ Ibid., quoting from Scheffler's Case, 419 Mass. 251, 258 (1994). The question of causation is “ ‘one of fact ... within the province of the board to determine’ based on the medical evidence, and ‘[u]nless lacking in evidential support it cannot be disturbed.’ “ Woolfall's Case, 13 Mass.App.Ct. 1070, 1070–1071 (1982), quoting from Mahoney's Case, 337 Mass. 629, 632 (1958).
Contrary to the employee's argument, the administrative judge did not again ignore the 1992 diagnosis of sciatica on remand. Rather, he explained that he found “this additional injury does not affect [my] prior findings and conclusions on the cause of the employee's present disability. The essence of [my] findings in Decision I was the dearth of medical evidence of treatment for the injuries of May 10, 1992 and October 13, 1992, in the period between February, 1993 and the commencement of treatment with Dr. Zolot on January 23, 2001. The inclusion of Dr. Shea's diagnosis of ‘sciatica L hip’ faces the same obstacle.”
Even accepting that the employee suffered both low back pain and sciatica from the 1992 injuries, we cannot say the judge was arbitrary or capricious in relying on the lengthy interval between the 1992 injuries and the employee's reports of chronic back pain and sciatic pain giving rise to his claim for benefits from January 1, 2010, and ongoing. The administrative judge found that the employee visited the employer's medical center whenever he had a medical issue that impacted his ability to meet the responsibilities of his job, and yet between September of 1993 and January of 2000, he made no reports of back pain to his employer. That he reported soreness and stiffness after shoveling in 1993 is some indication that he had no such soreness or stiffness prior to that incident. Moreover, that the contusions he suffered from the 1992 injuries caused both low back pain and sciatic symptoms from which the administrative judge reasonably concluded he had recovered, does not mean they are the cause of the claims of low back pain and sciatic pain from 1998 and going forward.
In finding that there was no medical evidence that the employee sought treatment for any condition arising from the 1992 injuries between September, 1993, and December 29, 1999, the administrative judge did not ignore, as the employee contends, that he reported back pain to his primary care physician in February of 1998 or that the primary care physician made reference to a 1997 MRI and an orthopedic doctor's opinion regarding the employee's sciatic complaints. The primary care physician's note simply does not relate the low back pain complaints to his work injuries.
When the employee sought treatment for his back pain from 1999 and on, degenerative disc disease was the prevailing diagnosis, yet no physician testified that the mechanism of injury or the 1992 injuries caused degenerative disc disease. The causal connection was made based on the employee's reports that pain that started with the 1992 injuries and “never abated,” eventually became disabling. The administrative judge implicitly, if not explicitly, rejected the employee's claims that his back pain “never abated” after the 1992 injuries. That credibility determination was for the administrative judge to make and cannot be disturbed on appeal. Ingalls's Case, 63 Mass.App.Ct. 901, 901 (2005). The administrative judge was not bound by medical opinions that were formed on incomplete medical histories or events that the administrative judge found not to be credible. See Patterson v. Liberty Mut. Ins. Co., 48 Mass.App.Ct. 586, 597–598 (2000).
In addition, the judge relied on the medical opinions of at least two examining physicians who found no causal connection between the 1992 injuries and the employee's complaints as of December 31, 2009. “Where there are conflicts in medical opinions, the resolution of those conflicts is for the administrative judge.” Ingalls's Case, 63 Mass.App.Ct. at 902.
We have considered the employee's remaining arguments and find no reason to disturb the decision of the board. We agree with the board's first decision that the employer's acceptance of both 1992 injuries negates any need to rely on c. 152, §§ 7 & 8, and, to the extent the employee now argues that he is owed penalties from late payment dating back to the weeks following the 1992 injuries, those claims were waived.
Decision of the reviewing board affirmed.