Opinion
No. 12–P–1047.
2013-04-23
Robert BLANCHETTE'S CASE.
By the Court (KAFKER, VUONO & FECTEAU, JJ.).
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
The employee, Robert A. Blanchette (employee), appeals from a summary decision of the reviewing board of the Department of Industrial Accidents which affirmed an administrative judge's (AJ) decision that denied the employee's request for specific benefits for loss of function and medical reimbursement under G.L.c. 152, §§ 36(1)( j ), and 30, respectively. He contends generally that the AJ exceeded the scope of the recommmital order when she considered evidence for a purpose other than that for which the evidence was submitted, and that it was inadequate to overcome the opinion of an impartial medical examiner (IME). We affirm.
On appeal from a summary decision of the board, we review “the findings and reasoning of the administrative judge[,]” Dalbec's Case, 69 Mass.App.Ct. 306, 313 (2007), and consider “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 within the particular requirements governing a workers' compensation dispute.” Scheffler's Case, 419 Mass. 251, 258 (1994), quoting from G.L.c. 30A, § 14(7)( g ). The employee worked as a heavy equipment operator when, on April 10, 2007, he slipped and fell on cement, striking his head, back, and shoulder. Relevant to this appeal, in 2008, but while a prior proceeding was still pending (see note 1, supra ), the employee filed an additional claim for specific compensation benefits for loss of function of his neck and back arising from the same claimed 2007 accident pursuant to the provisions of G.L.c. 152, § 36, to which was joined a claim for reimbursement of $15,000 for pain medication, under G.L.c. 152, § 30. The AJ having opened the medical evidence due to complexity, both parties submitted additional materials. After a hearing, and based primarily on the employee's own testimony to the effect that his neck felt “better” and “okay” and corroborating medical evidence including reports from an IME common to both proceedings, the AJ found that the employee “suffers no permanent loss of function in his neck”; she denied the employee's claims arising from his neck complaints. The AJ also determined that the prior proceedings were res judicata as to causation of the employee's new back claims. In any case, the AJ held, the employee had failed to carry his burden to demonstrate any causal connection between his new back claims and the original industrial injury, relying primarily on the additional medical evidence provided by the employee's primary care physician, Dr. Yoon.
In a prior proceeding before another AJ, which included a medical examination and report from an IME, it was determined that the employee suffered from preexisting degenerative disc disease and lumbar spine arthritis and that the employee's work injury aggravated this condition. That AJ further concluded that the employee failed to prove that the compensable injury was a major cause of the disability. See G.L.c. 152, § 1(7A). Finding that the employee's soft tissue injuries had resolved by July 27, 2007, the AJ concluded that the employee was totally disabled through July 27, 2007, awarding temporary total benefits, but was partially disabled thereafter due to his shoulder injury. The board summarily affirmed, a decision that was affirmed by this court on appeal in Blanchette's Case, 77 Mass.App.Ct. 1111 (2010).
The employee appealed to the board, arguing, among other things, that res judicata did not bar his present claims because, in the prior proceedings, the issue was one of causation of disability, whereas the present claim was one of loss of function. The reviewing board agreed and remanded for loss of function findings. The employee also argued that Dr. Yoon's testimony was considered beyond the scope submitted, claiming it was limited to the issue of the medical payments claim, not on loss of function. On this issue, the board also remanded for clarification as to whether Dr. Yoon's evidence was admitted for a limited or more general purpose.
On remand, the AJ clarified that, in her earlier decision, she indicated that “the employee filed a motion to open the medical records and based upon the complexity of the case and multiple injuries, the motion was allowed; and the parties submitted additional medical evidence.” While the employee contends that no such motion was filed, there is no doubt that an AJ “may, on his own initiative ... authorize the submission of additional medical testimony....” G.L.c. 152, § 11A(2), as appearing in St.1991, c. 398, § 30. See Viveiro's Case, 53 Mass.App.Ct. 296, 298–300 (2001). In analyzing the employee's back-related claims, the AJ again determined that the employee had failed to carry his burden. She rejected the IME's opinion—to the effect that the employee had aggravated his underlying degenerative disk disease causing a loss of function in his back—and adopted instead Dr. Yoon's opinion. As noted, the board summarily affirmed.
The AJ noted further “that there were no limitations on the use of those records put forth by either party and, therefore, I used them then and use them now for all purposes. Moreover, as the Reviewing Board has correctly pointed out, the impartial report of [the IME] is inadequate due to his failure to address the § 36 loss of function claim.”
Dr. Yoon's opinion was, in effect, that the employee's back strain or sprain could normally be expected to resolve completely within a couple of weeks, that any remaining pain experienced by the employee was due to his preexisting degenerative disc disease, and that it would be impossible to state with any degree of certainty, particularly because of the employee's intervening automobile accident, that the employee's claimed pain and disability had any relationship with his original 2007 industrial injury.
The employee argues that Dr. Yoon's testimony was improperly considered by the AJ because it was admitted, according to the employee, solely for the limited purpose of his § 30 medical reimbursement claim for pain medication. However, the AJ stated in her first decision and reiterated in her second that it was her intention to consider the medical evidence submitted for all purposes; her consideration of Dr. Yoon's opinion was not restricted by the recommittal order.
The employee also contends that the AJ improperly relied on the opinions of Dr. Yoon, the employee's treating physician and a general practitioner, in the face of an contradictory orthopedic IME's opinion. However, “[f]indings 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). This function includes the authority and discretion to accept one expert medical opinion over another. Kelly's Case, 78 Mass.App.Ct. 907, 908 n. 4 (2011). While the opinion of the IME remains as evidence in the case, its prima facie status gives way in the face of contravening evidence the fact finder deems credible. See Cook v. Farm Serv. Stores, Inc., 301 Mass. 564, 566 (1938), and Ford Motor Co. v. Barrett, 403 Mass. 240, 243 (1988).
As the employee was unsuccessful on appeal, his request for appellate attorney's fees is, of course, denied.
Decision of reviewing board affirmed.