Opinion
No. 12–P–1188.
2013-09-17
John ERICKSON'S CASE.
By the Court (MEADE, MILKEY & HANLON, JJ.).
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
The former employee, John Erickson, appeals from a decision of the reviewing board of the Department of Industrial Accidents, affirming an administrative judge's denial of benefits under G.L. c. 152. We affirm.
Background. Erickson's underlying workplace injury was a back sprain that occurred on October 3, 2006; in a previous action, an administrative judge found that Erickson's back sprain had resolved by December 1, 2006; he was deemed capable of returning to full-time work as of that time.
After Erickson was released to return to work in March, 2007, he learned that his work situation had changed. Offered a chance to be laid off and claim unemployment benefits, he agreed to do that and thereafter collected six months of unemployment benefits.
That decision was affirmed by the reviewing board and by this court. Erickson's Case, 80 Mass.App.Ct. 1116 (2011).
Subsequently, alleging that he had suffered a psychological injury arising out of the original 2006 work injury, Erickson filed a new claim for § 34 benefits from the time of the underlying injury. He also alleged, in the alternative, that, rather than having been laid off voluntarily in March, 2007, he had been wrongfully terminated in violation of § 8(2)( d ), and therefore claimed § 34 benefits from March 8, 2007. After a hearing, both claims were denied. Erickson appealed.
At a de novo hearing, held over three days, the administrative judge heard testimony from Erickson, his employer, Charles Flanagan, and a vocational expert, Rhonda Jellenik.
On August 17, 2011, based primarily upon the opinion of Dr. Michael Rater, a psychiatrist chosen by the insurer, the judge affirmed the denial of § 34 benefits, finding that Erickson's psychological condition was not causally related to the original industrial accident; she also denied Erickson's wrongful termination claim based upon what she believed was Flanagan's credible testimony. The reviewing board affirmed.
The independent medical examiner's § 11A report, the expert's vocational report, numerous medical reports on behalf of both Erickson and the employer, and the deposition testimony of four physicians, Dr. Zamir Nestelbaum, the § 11A examiner, Dr. Jonathan Held, a dermatologist, Dr. Steven Hoffman, a psychiatrist, and Dr. Harvey Clermont, an orthopedic surgeon, were submitted at the hearing as exhibits.
Discussion. We review a board's decision regarding workers' compensation benefits under the usual standard for appeal from a final decision of an administrative agency set forth in G.L. c. 30A, § 14(7), except that we do not review whether the board's decision was supported by substantial evidence. Wadsworth's Case, 461 Mass. 675, 679 (2012). 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).
Section 8(2)(d) presumption. Erickson first argues that the administrative judge erred when she failed to apply the G.L. c. 152, § 8(2), presumption that any termination of an employee within one year of returning to work will be presumed to have occurred because he was physically or mentally incapable of performing the duties required by the job. This claim fails because the judge did not credit Erickson's claim that he was terminated. Specifically, the judge found that Erickson's testimony was in direct contradiction to his 2009, sworn testimony that ‘prior to his work place injury, the employee learned from the employer that [the employer] planned to combine the two supervisors' positions into one, and his position was being eliminated.’ She found that Flanagan's testimony was consistent with Erickson's own earlier testimony that ‘he just couldn't work for [the supervisor]’ and he asked to be ‘laid’ off so he could collect unemployment. This credibility judgment, that she did not believe [Erickson]'s testimony that he was fired but rather, that he chose not to return to work, was the judge's to make, and we cannot say that her finding was arbitrary or capricious.
Motion to redepose the impartial examiner. Erickson next argues that the judge abused her discretion in not allowing him to redepose the impartial psychiatric examiner, Dr. Zamir Nestelbaum, about what he describes as newly disclosed favorable medical evidence, a dermatological report obtained at the request of the insurer from Dr. Richard Brown. This claim also fails.
In the judge's thoughtful findings, she thoroughly explained her assessment of the medical evidence, including the independent medical examiner's (IME) report, and the credibility of the witnesses. Although she did not refer specifically to Dr. Brown's dermatological report, the report was admitted as an exhibit and, therefore, considered in the judge's decision along with the IME report of Dr. Nestelbaum. Given that the report was in evidence, it was within the judge's discretion to deny a request to redepose Dr. Nestelbaum, in light of it. Once properly admitted, the probative value of medical testimony is to be weighed by the fact finder, in this case, the administrative judge who is permitted to accept the medical testimony of one expert and to discount that of another. Coggin v. Massachusetts Parole Bd., 42 Mass.App.Ct. 584, 589 (1997), quoting from Fitzgibbon's Case, 374 Mass. 633, 636 (1978).
The judge adopted, in full, the opinion of Dr. Michael Rater and concluded that Erickson's [d]iffuse pain, MRSA (methicillin resistant staphylococcus aureus) and psoriasis are not related to his October 2006, injury and that his mental status of ‘irritability and low frustration’ was consistent with his ‘pre-existing history’ of ‘anger management issues' for which he was required to attend anger management training. There is no basis to disturb her determination.
Decision of reviewing board affirmed.