Opinion
10-P-2264
12-20-2011
GRADY'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 self-insurer employer, United Airlines, Inc., appeals from the reviewing board of the Department of Industrial Accidents' (reviewing board) summary disposition affirming the decision of an administrative judge concluding that the employee is permanently and totally disabled and awarding appropriate benefits.
On appeal, the employer contends that the impartial medical examiner (IME) did not, in fact, limit the employee's capacity to light, sedentary work; that the administrative judge and the board incorrectly relied on the employee's prescribed medications as a reason for his being totally and permanently disabled; that the administrative judge failed properly to perform a Scheffler analysis, Scheffler's Case, 419 Mass. 251, 258 (1994), or properly discredit the testimony of the vocational counselor who relied on medical evidence outside the record; and that the administrative judge did not address each issue in controversy. We find no merit to the claims and, accordingly, affirm.
Background. The employee, age forty-five at the time of the hearing, has a high school and some college education and has been employed since 1985 performing physically demanding labor duties with the employer. In 2006, he was employed as a baggage handler. At work, the employee was lifting a heavy bag when he experienced severe pain in his lower back. The employee immediately stopped working, reported the accident, and received treatment; the employee was later diagnosed with a ruptured disc in his lower back, generally causing severe pain. At the time of the trial the employee was taking several medications to moderate his pain, some of which caused him to be nauseous and /or sleepy. The employee underwent surgery and physical therapy on several occasions, none of which improved his condition.
At the hearing, the employee testified that he is unable to sleep through the night, is unable to lift his infant daughter, and is unable to bend over to put on his shoes, and that he generally experiences significant continuing pain and has very limited mobility.
The IME opined, generally, that the employee's back pain and ruptured disc was causally related to the work accident and that the employee presently is at an 'end point' medically. The IME also opined that the employee is not necessarily precluded from participating in light-duty work that does not involve heavy lifting, i.e., he is unable to lift more than fifteen to twenty pounds, providing that the employee stops taking entirely or reduces the dosage of his medication. Overall, the employee suffers from significant pain. The employee's vocation expert, relying primarily on the IME's report and occupational surveys, opined that the employee was permanently and totally disabled, being both physically unfit and untrained for alternative work of more than a 'trifling nature.' The employer's vocational expert disagreed, concluding that the employee was capable of performing such light duty work as a parking attendant or receptionist.
The administrative judge for the most part adopted the IME's report and rejected the employer's vocational expert's opinion, finding that the employee was permanently and totally disabled despite evidence to the contrary, and as a result, awarded the employee G. L. c. 152, § 34 benefits.
The IME viewed a videotape of the employee. Contrary to the claims of the employee that he was 'always exhausted and in pain' and unable to lift or change his twenty-three pound infant daughter, the employee was seen in the video carrying his child in a car seat, placing the child and seat in a car, and driving the car to various locations while his wife was shopping. Moreover, in a video taken on another day, he was seen taking out a plastic trash can and plastic garbage bag. Finally, the IME determined, as noted above, that the employee could lift fifteen to twenty pounds, could walk thirty to forty yards (the employee admitted that he could stand for an hour and walk a mile), and was capable of performing light, sedentary work that did not involve any lifting in excess of fifteen pounds, or any repetitive stooping, bending, or straining.
Discussion. This court's review of a reviewing board's decision is a limited one. In order to set aside or modify the decision of the reviewing board, an appellate court must determine that the board's decision 'was based on an error of law, made upon unlawful procedure, or arbitrary or capricious, an abuse of discretion, or otherwise not in accordance with the law.' Haslam's Case, 451 Mass. 101, 106 (2008) (quotations and citations omitted). With that standard in mind, we review the issues raised by the employer.
1. IME's findings. The employer is correct in noting that the IME did not specifically opine that the employee was limited to light, sedentary work. Rather he concluded that the employee was capable of such work. However we are not persuaded that the administrative judge improperly used the IME's finding. Throughout his testimony, the employee described his pain, his reaction to the medications prescribed to him, and his limitations. Therefore, the administrative judge's conclusion that the employee was limited to light sedentary work was supported.
2. Effects of medication. We disagree with the employer's argument that the IME, the employee's vocational expert, and the administrative judge improperly relied upon potential side effects caused by the employee's medication to conclude that the employee was unable to perform useful work. The administrative judge's findings, substantiated in the record, were that the employee was taking a combination of medicines prescribed by his doctor that palliated, but did not decrease substantially the pain experienced by the employee, and which caused him to endure debilitating side effects. Those side effects could create safety issues for both the employer and employee.
3. Completeness of administrative judge's decision. The insurer argues that the administrative judge did not perform properly a Scheffler analysis. Scheffler's Case, 419 Mass. at 258. We disagree. The administrative judge based his award on the medical evidence in the case together with the employee's age, education, work history, and limitations stemming from the injury. His findings and conclusions were not arbitrary or capricious since there is adequate evidentiary and factual support for them in the record.
Finally, we need not address the insurer's claim that the administrative judge considered, improperly, the testimony of the vocational expert because she relied upon medical records not admitted in evidence. Since the insurer did not object at the hearing to the testimony of the vocational expert, that issue has been waived. See Green v. Brookline, 53 Mass. App. Ct. 120, 128 (2001) (claims not raised below are waived on appeal).
Conclusion. The decision of the reviewing board summarily affirming the decision of the administrative judge is affirmed, and accordingly, the employee's request for reasonable attorney's fees and costs, pursuant to G. L. c. 152 § 12A, is allowed. So ordered.
By the Court (Graham, Rubin & Wolohojian, JJ.),