Opinion
No. 11–P–1654.
2012-10-4
Michael LYNCH'S CASE.
By the Court (MEADE, SIKORA & WOLOHOJIAN, JJ.).
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
Oak Roofing and Continental Casualty Insurance Company (insurer) appeal from a decision of the reviewing board of the Department of Industrial Accidents (board) granting Michael Lynch disability benefits under G.L. c. 152, §§ 34, 35, and double compensation under G.L. c. 152, § 28. On appeal, the insurer claims that the board's determination that evidence of superintendence was sufficient as a matter of law was arbitrary and capricious, and that the board's summary affirmation of the sufficiency of the medical evidence was arbitrary and capricious. We affirm.
1. Power of superintendence. The insurer claims that the board's decision, pursuant to G.L. c. 152, § 28, that Michael Macomber was someone “regularly entrusted with and exercising the powers of superintendence” was arbitrary and capricious. More specifically, the insurer claims that § 28 liability did not apply because Macomber was not officially designated by the employer with powers of superintendence. We disagree with both claims. The circumstances resulting in Lynch's injuries remain essentially undisputed. The insurer does not contest the fact that Macomber's misconduct caused Lynch's initial injuries, but rather challenges the finding that Macomber was supervising the job site on behalf of the employer. Contrary to the insurer's claim, G.L. c. 152, § 28, does not require that the person who caused the injury be officially designated a superintendent or foreman by the employer. The insurer's reliance on O'Leary's Case, 367 Mass. 108 (1975), for this proposition, is misplaced. In O'Leary's Case, the Supreme Judicial Court did not hold that § 28 required such an official designation because there was no issue that the employee in question had been designated a foreman under the governing employment contract. Id. at 114–115.
In contrast, as the administrative judge found, and the board affirmed, although Macomber's powers of superintendence at the jobsite were limited, and he had not been designated a foreman, his powers were sufficient to be deemed as “regularly entrusted” for § 28 purposes. The administrative judge's conclusion was warranted and based on his following findings of fact: (1) Macomber acted as the employer's contact person and responsible representative for this particular job site after the previous foreman was transferred; (2) his duties included ensuring that the job was done properly by other workers assigned to the job; (3) workers assigned to the project were to report to Macomber at the site; (4) Macomber exercised general supervisory duties over the other workers, including setting the daily schedule for breaks and lunches, determining when to end the work day, submitting the hours worked for all employees to the employer, and assigning other tasks at the job site to employees when the work was temporarily paused; (5) Macomber was issued a company cell phone, which he used to submit payroll hours; and (6) Macomber had the ability to request certain employees be either assigned or transferred from the job site, as he did with Lynch. As such, the board's decision was not arbitrary and capricious.
The insurer also claims that the board improperly applied factors from the Employer's Liability Act (act), G.L. c. 153, § 1. See Hourigan v. Boston Elev. Ry. Co., 193 Mass. 495, 497 (1907). The Supreme Judicial Court has stated that prior interpretations of the act are instructive on the questions of superintendence under G.L. c. 152, § 28. See Thayer's Case, 345 Mass. 36, 40–41 (1962).
2. Medical opinions. The insurer also claims that it was arbitrary and capricious for the board to summarily affirm the administrative judge's decision that Lynch's subsequent incident in March, 2008, represented not a new injury to his right knee, but, instead, the tearing of scar tissue created as a result of the January, 2008, surgery for the original injury in 2007. More specifically, the insurer claims that the board's decision was arbitrary and capricious because the medical evidence presented failed to show that the subsequent injury was causally related to the September, 2007, work injury. We disagree.
In cases of summary affirmance of a decision of the administrative judge by the board, the reviewing court has the authority to examine both the findings and the reasoning of the administrative judge. See Whitman's Case, 80 Mass.App.Ct. 348, 352 (2011). Here, the administrative judge noted that there was unanimity from all doctors regarding the fact that the 2007 work injury was a major cause of Lynch's knee and shoulder injuries. He further explicitly adopted the findings of Lynch's orthopedic surgeon, Dr. John Schena, regarding the injury reported by Lynch on March 24, 2008. Dr. Schena diagnosed Lynch with a postoperative fibrosis of scar tissue in his right knee stemming from the January, 2008, surgery to repair Lynch's torn meniscus. Dr. Schena further stated that if scar tissue had actually formed and subsequently torn in Lynch's knee, such a tear would be causally and directly related to Lynch's initial injury and resulting surgery. Dr. Schena also testified that he believed Lynch did not suffer a subluxation of his right knee on March 23, 2008, because up until that point, Lynch's knee had been improving and a postsurgery MRI in July, 2008, showed no new tears or other acute damage in the knee. The MRI did, however, show normal postoperative changes and scarring in the knee itself. Based upon these findings, the judge awarded Lynch § 35 benefits beginning on July 7, 2009, at a rate of $433.89 per week.
Even if Dr. Schena's testimony was insufficient by itself, the judge also considered the testimony of the impartial medical examiner, Dr. Olarewaju Oladipo, and two other doctors retained by the insurer. These doctors confirmed a diagnosis that Lynch's injuries were causally related to the September, 2007, work incident. Thus, the administrative judge's finding, and the board's affirmance, were supported by evidence, including all rational inferences which could be drawn therefrom. See Foley's Case, 358 Mass. 230, 232 (1970). The board's decision on this question was not arbitrary and capricious.
Decision of reviewing board affirmed.