Opinion
11-P-1029
04-20-2012
JAMES MALTACEA'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 insurer, Savers Property and Casualty Insurance Company (Savers), appeals from the reviewing board's summary affirmance of the administrative judge's determination that Savers remains liable for payment of the employee's workers' compensation benefits. Savers maintains that the successor insurer, Granite State Insurance Company (Granite State), is liable instead. We affirm.
The employee's eligibility for benefits is uncontested.
Facts. When the reviewing board has summarily affirmed the administrative judge, we look to the findings and reasoning of the administrative judge. Dalbec's Case, 69 Mass. App. Ct. 306, 313 (2007). The administrative judge found the following. The employee severely injured his knee in the course of his employment on May 3, 2004. Savers was the insurer at that time. He underwent the first of several knee surgeries on June 15, 2004, and was thereafter placed in a 'constant passive motion' (CPM) apparatus for three to four hours per day for three weeks. The use of the CPM caused the onset of backaches. The employee returned to work on a limited parttime basis in September, 2004, but his knee injury symptoms persisted and he discontinued working in December, 2004. He underwent additional knee surgeries in February and November, 2005. The employee again returned to work on a limited parttime basis in January, 2006. On February 6, 2006, the employee experienced pain in his back while trying to install a car seat; the employee used his back as leverage because he was unable to push on his right knee. While walking off the back pain, his knee gave out and he fell. By the time of this incident, Granite State had become the employer's workers' compensation insurer. The employee missed a few days of work and then returned. In November, 2006, he underwent his fourth knee surgery. After this surgery, the employee was again placed in the CPM apparatus for ten hours per day for six weeks. During this time the employee's back pain increased significantly. He has not worked since.
Discussion. Savers' appeal is predicated on the factual assertion that the employee reinjured himself in February, 2006, and that under the successive insurer rule, the employee must be compensated entirely by the insurer 'at the time of the most recent injury that bears causal relation to the disability,' to wit, Granite State. Pilon's Case, 69 Mass. App. Ct. 167, 169 (2007). 'The subsequent injury need not be a significant contributing cause to the incapacity. So long as it is to the 'slightest extent' a contributing cause, the insurer at the time of the recent injury will be held liable to cover the entire incapacity.' Ibid.
'The determination whether there was a subsequent injury and whether it had causal connection to the ensuing incapacity is essentially a question of fact, . . on which expert medical opinion is required.' Ibid. The administrative judge, on the employee's motion, deemed the medical issues complicated, and conducted a careful review of each of the medical opinions submitted, crediting various aspects of each of the opinions and rejecting others. He found that both the claimant's expert and the independent medical examiner reached the same conclusion on one aspect of the claim. That is, the increase in knee pain and swelling in 2004 was a result of a knee injury which did not heal and from which the employee never recovered. The administrative judge also specifically adopted the medical testimony that the incident of February, 2006, was 'simply a temporary aggravation injury to both the knee and the back,' which was short term in nature with no lasting causative effect.
'I adopt Dr. Donahue's opinion that 'if that were the only injury sustained, i.e. reaching into a car and twisting, in my estimation he would have recovered and the need for ongoing treatment is related to the initial injury in 2004.''
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In addition to the finding that the employee's ongoing knee injury was causally related to the May 3, 2004, industrial accident, the administrative judge found that the employee was totally disabled as a result of the knee injury alone. He further found that the employee's back condition was causally related to the original knee injury primarily because of the prolonged use of the CPM apparatus following the fourth knee surgery. He acknowledged that the back pain may have been related to the February, 2006, incident with the car seat, but further found that the back pain was not the cause of the incapacity. Finally, the administrative judge found that there was no medical opinion causally relating either (1) the employee's present knee symptoms to the February, 2006, incident involving the car seat, or (2) the February, 2006, incident and the employee's subsequent exertions at work to his subsequent total disability.
In short, the administrative judge did not find that the February, 2006, incident was a cause, in any respect, of the employee's ongoing disability. 'Findings of fact, assessments of credibility, and determinations of the weight to be given the evidence are the exclusive function of the administrative judge,' ibid, and 'are to be considered final by both the reviewing board and an appellate court.' Case of Carpenter, 456 Mass. 436, 441 (2010), citing Lettich's Case , 403 Mass. 389, 394 (1988). As in Pilon's Case, '[t]he evidence, including the medical notes and reports, did not compel the administrative judge, as matter of law, to find a new injury that was a contributing cause to [the employee's] ensuing incapacity.' 69 Mass. App. Ct. at 170. The administrative judge's findings are supported by the record and are conclusive.
Decision of the reviewing board affirmed.
By the Court (Kantrowitz, Wolohojian & Sullivan JJ.),