Opinion
No. 12–P–1508.
2013-06-7
John M. KARDAS'S Case.
“A plain reading of the statute indicates that the judge's actions are discretionary.” Viveiros's Case, 53 Mass.App.Ct. 296, 300 (2001). Here, the administrative judge explicitly found that the medical issues were not complex and that the independent medical examiner's report and opinions were adequate. She also noted that she had previously upheld the same independent medical examiner's opinions in the employee's prior case arising out of the same underlying facts. 1 Most importantly, the administrative judge concluded that the independent medical examiner did provide, in his report and deposition testimony, an opinion as to the extent of any loss of function caused by the employee's workplace injury. 2
By the Court (TRAINOR, GRAHAM & WOLOHOJIAN, JJ.).
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
An administrative judge denied the employee's claim for permanent loss of function and disfigurement under G.L. c. 152, § 36. The reviewing board summarily affirmed. On appeal, the employee argues that the administrative judge's denial of his motion to expand the record for additional medical documentation was arbitrary, capricious, and contrary to law because the independent medical examiner's report was inadequate and because the medical issues were complex. We affirm.
Standard of review. “In cases of summary affirmance of a decision of the administrative judge by the board, the reviewing court is examining the findings and reasoning of the administrative judge.” Whitman's Case, 80 Mass.App.Ct. 348, 352 (2011). “[W]e 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). Discussion.General laws c. 152, § 11A(2), as appearing in St.1991, c. 398, § 30, controls the expansion of the record for further medical testimony. It reads in pertinent part:
“[T]he administrative judge may, on his own initiative or upon a motion by a party, authorize the submission of additional medical testimony when such judge finds that said testimony is required due to the complexity of the medical issues involved or the inadequacy of the report submitted by the impartial medical examiner.”
“A plain reading of the statute indicates that the judge's actions are discretionary.” Viveiros's Case, 53 Mass.App.Ct. 296, 300 (2001). Here, the administrative judge explicitly found that the medical issues were not complex and that the independent medical examiner's report and opinions were adequate. She also noted that she had previously upheld the same independent medical examiner's opinions in the employee's prior case arising out of the same underlying facts.
Most importantly, the administrative judge concluded that the independent medical examiner did provide, in his report and deposition testimony, an opinion as to the extent of any loss of function caused by the employee's workplace injury.
We subsequently affirmed this decision. See Kardas's Case, 81 Mass.App.Ct. 1104 (2011).
In her decision, the administrative judge expounded on this, adopting the independent medical examiner's opinion that the employee's alleged loss of function and disfigurement had no causal connection to the workplace injury that he suffered.
Our review of the independent medical examiner's report and deposition confirms the administrative judge's findings in her written denial of the employee's motion. See Scheffler's Case, supra. We therefore cannot say that the administrative judge abused her discretion when she denied this motion, or that her decision was arbitrary or capricious.
We allow the employer's request for attorney's fees and costs in defending this appeal. The employer, Home Depot USA, Inc., shall file an application for fees and costs, with appropriate supporting documentation, with this court within fourteen days of the date of the rescript. See Fabre v. Walton, 441 Mass. 9, 10–11 (2004). The employee shall have fourteen days thereafter to respond.
Decision of reviewing board affirmed.