Opinion
No. 15–P–1012.
07-18-2016
Frederick OPANASETS'S CASE.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
Frederick Opanasets appeals from the Department of Industrial Accidents reviewing board's (board's) decision affirming an administrative judge's (first judge's) denial and dismissal of his workers' compensation claim. Opanasets alleged that his acute high blood pressure resulted from his stressful work environment overseeing the overnight shift of a detainee unit while in the employ of the Suffolk County sheriff's department. After the first judge determined that the self-insurer did not meet its burden of production for its G.L. c.152, § 1(7A), affirmative defense, and the parties submitted their evidence and presented the relevant lay and expert testimony, the first judge fell ill and passed away before she could render a decision. Rather than rehear the case from the beginning, a second judge rendered a decision based on a review of the record evidence and the relevant transcript. On appeal, Opanasets claims the second judge erred by applying the incorrect standard for causation, which the first judge rejected, in assessing and denying his claim. We affirm.
General Laws c.152, § 1(7A), as appearing in St.1991, c.398, § 14, provides, in relevant part:
“If a compensable injury or disease combines with a pre-existing condition, which resulted from an injury or disease not compensable under this chapter, to cause or prolong disability or need for treatment, the resultant condition shall be compensable only to the extent such compensable injury or disease remains a major but not necessarily predominant cause of disability or need for treatment.”
Opanasets claims the second judge erred in evaluating his claim pursuant to a major cause standard under G.L. c.152, § 1(7A), where, before the parties took expert depositions, the first judge initially determined that the self-insurer did not meet its burden of production. Instead, Opanasets claims the second judge should have evaluated his claim under an “as is” simple causation standard, where Opanasets's previous health condition would be irrelevant in determining the amount of relief to which he may be entitled. Zerofski's Case, 385 Mass. 590, 593 (1982) (“an employee may recover even when his injury is due in part to his own weakness or vulnerability; the employer must take his employee ‘as is.’ If a condition or incident of work aggravates a preexisting health problem, the employee has suffered a ‘personal injury,’ and may recover from the employer for his entire disability, without apportionment” [citations omitted] ). We disagree.
The Commonwealth argues Opanasets's claim is moot because he challenges only the standard the second judge applied, and not the outcome-determinative finding that there was no compensable injury. It is unclear, however, whether the second judge determined that Opanasets did not satisfy his burden under § 1(7A) or that he did not suffer a compensable injury at all. Specifically, the second judge found that Opanasets's “stressful incidents at work” were not a “major cause of any disability or need for treatment” (under § 1 [7A] ) but also found that Opanasets was neither disabled from his position, nor did he sustain “a personal injury arising out of and in the course of employment” altogether. Given this uncertainty, we nevertheless consider the merits of his claim.
In this instance, the board properly upheld the second judge's decision to apply § 1(7A) despite the first judge's ruling that the self-insurer had not met its burden under § 1(7A). “Though there is no duty to reconsider a case, an issue, or a question of fact or law, once decided, the power to do so remains in the court until final judgment or decree.” Salter v. Scott, 363 Mass. 396, 401–402 (1973), quoting from Peterson v. Hopson, 306 Mass. 597, 601 (1940). Despite the so-called “law of the case” doctrine which urges judges not to stray from the decisions of an initial judge's rulings, the second judge was well within his discretion, in view of the evidence from the experts' opinion on Opanasets's condition, to depart from the first judge's determination that § 1(7A) did not apply as an affirmative defense or the standard to evaluate Opanasets. See Serody v. Serody, 19 Mass.App.Ct. 411, 412 (1985) (“It does not matter that a different judge heard the question before. A judge should be reluctant to undo the work of another judge, but until final judgment there is no lack of power to do so”).
Nothing in the record suggests, nor does Opanasets explicitly claim, that the second judge's findings were not factually warranted or were either arbitrary or capricious. See Carpenter's Case, 456 Mass. 436, 439 (2010).
Specifically, the second judge found that “the needed showing was made as the expert opinion came in and I adopt the opinion of Dr. Vita in finding that the employee's episodic symptoms resulted from a combination of the preexisting condition of hypertension and the employee's response to the stressful incidents at work.”
Furthermore, and as explained fully by the board in its decision, the second judge properly tried the § 1(7A) issue by consent even where the self-insurer did not reassert the defense within the initial ten-day period the first judge had ordered. As the second judge was not bound by the order that § 1(7A) did not apply, he was similarly free to depart from the order that the self-insurer reassert any potential § 1(7A) defense within ten days. See ibid. Contrary to Opanasets's claim that § 1(7A) could not be tried by consent where the self-insurer did not timely reassert the issue, his actions during the proceedings consistently indicate that he had sufficient notice and knowledge that § 1(7A) remained at issue. Although Opanasets claims that, had he known § 1(7A) could still apply, he would have elicited further testimony on the major cause issue, we agree with the board's assessment that Opanasets demonstrated his implicit consent to the § 1(7A) issue.
After the first judge found that the self-insurer did not meet the burden of production under § 1(7A), both sides elicited testimony from the expert in his deposition regarding the major cause of Opanasets's injury, implicating considerations under § 1(7A). Opanasets did not object to this line of questioning. Furthermore, Opanasets also requested permission to take depositions, specifically in order to address the § 1(7A) major cause issue. Finally, in his closing argument, Opanasets argued that he had indeed satisfied § 1(7A).
Decision of reviewing board affirmed.