Opinion
18-P-768
03-11-2019
MELVIN MORALES'S CASE.
NOTICE: Summary decisions issued by the Appeals Court pursuant to its rule 1:28, as amended by 73 Mass. App. Ct. 1001 (2009), are primarily directed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, such 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. See Chace v. Curran, 71 Mass. App. Ct. 258, 260 n.4 (2008).
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
The employee, Melvin Morales, appeals from a decision by the reviewing board of the Department of Industrial Accidents, denying and dismissing his claim against the insurer, Travelers Casualty and Surety Co. of America, for wage replacement benefits, G. L. c. 152, §§ 34, 34A, 35. We conclude that the administrative judge properly found that the defendant is able to earn more than his average weekly wage before he sustained his injury and thus is ineligible for wage replacement benefits. Further concluding that the reviewing board properly affirmed the administrative judge's decision, we affirm.
1. Background. The employee suffered a work-related injury to his lower back on January 5, 2013. Following physical therapy, the employee attempted to return to work but was unsuccessful. The insurer initially paid the employee G. L. c. 152, § 34, benefits but later filed a request to discontinue or modify weekly benefits. The administrative judge issued an order terminating § 34 benefits on July 12, 2015. Ultimately, the administrative judge found "that the employee is partially disabled and able to return to at least three quarter time light duty work." Because three-quarter time work, even at minimum wage, exceeded the stipulated average weekly wage, the administrative judge denied wage replacement benefits under §§ 34, 34A, and 35. The administrative judge awarded the employee continuing G. L. c. 152, §§ 13 and 30, benefits.
The employee appealed, and the reviewing board "vacate[d] the [administrative] judge's decision and recommit[ted] the matter for further review" because the administrative judge had ruled without reviewing the parties' joint exhibit of medical documents (joint exhibit). After a status conference and the resubmission of the joint exhibit, the administrative judge again denied the employee's claim for §§ 34, 34A, and 35 benefits (second decision). The reviewing board summarily affirmed the second decision.
Presumably because the employee's Form 112 listed the date of the administrative judge's original decision as the one appealed from, the summary affirmance also lists the date of the original decision. The parties, however, agree that the appeal from the second decision is properly before us.
2. Standard of review. "The [reviewing] board's decision may be set aside only if it is arbitrary or capricious, an abuse of discretion, or erroneous as a matter of law." Bolduc's Case, 84 Mass. App. Ct. 583, 585 (2013), citing G. L. c. 152, § 12 (2); G. L. c. 30A, § 14 (7). "The [reviewing] board, as the agency charged with administering the workers' compensation law, is entitled to substantial deference in its reasonable interpretation of the statute." Sikorski's Case, 455 Mass. 477, 480 (2009).
3. Discussion. "Whether an employee has suffered a total disability is a question of fact, and a [reviewing] board's finding on that issue must stand unless unsupported by the evidence." MacDonald's Case, 73 Mass. App. Ct. 657, 662 (2009), quoting Trant's Case, 21 Mass. App. Ct. 983, 984 (1986). Here, the reviewing board properly affirmed the administrative judge's decision that the employee was capable of working enough to replicate his average weekly wage. The administrative judge's decision was supported by the medical opinions found credible by the administrative judge: those of Dr. Terence Doorly, Dr. Richard Warnock, and Dr. Eugenio Martinez. See Pilon's Case, 69 Mass. App. Ct. 167, 169 (2007), quoting Chapman's Case, 321 Mass. 705, 707 (1947) ("We will not disturb the judge's findings that are 'reasonably deduced from the evidence and the rational inferences of which it was susceptible'"). An administrative judge is not required to credit all medical evidence presented. See MacDonald's Case, supra at 658 (administrative judge did not credit medical evidence offered by insurer). Here, it was within the administrative judge's discretion to discredit Dr. Olarewaju Oladipo's determination that the employee was totally disabled. Doctor Doorly, Dr. Warnock, and Dr. Martinez all agreed that the employee is partially disabled, but able to work in some capacity. The doctors' opinions differed only as to the capacity at which the employee could return to work. Doctor Warnock released the employee to light sedentary work. Doctor Martinez released the employee to return to full-time work with a ten-pound lifting restriction. Doctor Doorly determined that the employee is not totally disabled but could not return to work in his former capacity. None of the three doctors that the administrative judge relied upon concluded that the employee was totally disabled. Accordingly, the administrative judge's finding that the employee was partially disabled and able to return to at least three-quarter time light duty work was supported by the evidence.
We disagree with the employee's contention that the administrative judge's decision is internally inconsistent. "Where there are conflicts in medical opinions, the resolution of those conflicts is for the administrative judge." Ingalls's Case, 63 Mass. App. Ct. 901, 902 (2005). Here, the medical opinions that the administrative judge ultimately factored into his decision did not conflict in relevant part. Although the opinions of the three doctors the administrative judge credited differed as to the employee's capacity to work, none of them found the employee to be totally disabled.
Moreover, the employee repeatedly reads the administrative judge's decision out of context to claim inconsistencies. Contrary to the employee's claim, the administrative judge did not find that the employee was able to work at precisely three-quarter time. Rather, once the administrative judge was satisfied that the employee was at least able to work three-quarter time, it was unnecessary for the administrative judge to determine the precise contours of the employee's capability or resolve the subtle differences between the three, credited medical opinions. As none of the doctors placed any temporal, as opposed to intensity, restriction on the employee's work, the administrative judge's conclusion was supported by the evidence. See MacDonald's Case, 73 Mass. App. Ct. at 662.
Also contrary to the employee's claim, the administrative judge did not state that the employee would automatically be entitled to § 34 benefits if he enrolled in pain management. Rather, the administrative judge stated that "[t]he employee may have some period or periods of total disability in the future if he receives an implantable pump or enrolls in a pain clinic as recommended by Dr. Doorly" (emphasis added). Nothing in the evidence required the administrative judge to find that the employee's existing involvement with the pain management clinic made him totally disabled. Similarly, the administrative judge's conclusion that § 34 benefits were not justified after July 12, 2015, was well supported by the opinions of Dr. Doorly, Dr. Warnock, and Dr. Martinez, regardless of whether the evidence also would have supported terminating them earlier.
We also conclude that the employee's claim of bias fails. "The administrative judge may assign countervailing value to the worker's age, education, background, and prior employment history." Dalbec's Case, 69 Mass. App. Ct. 306, 314 (2007). Here, the administrative judge merely acknowledged during the hearing that it is rare to find total disability in a young employee. Although it would have been proper for the administrative judge to consider the employee's age, there is no evidence that the employee's age factored into the administrative judge's decision. In any event, the employee failed to raise this issue at the hearing before the administrative judge and therefore it is waived. See Comeau's Case, 91 Mass. App. Ct. 449, 454 n.6 (2017). Accord Commonwealth v. Rivera, 473 Mass. 1003, 1006 (2015) (party seeking disqualification of judge must raise issue promptly).
Finally, the reviewing board properly issued a summary disposition. See Murphy's Case, 53 Mass. App. Ct. 708, 710-711 (2002). Because the administrative judge's second decision considered the joint exhibit as part of the record, the omission from the first decision was rectified. The reviewing board's summary disposition properly affirmed the administrative judge's second decision, not the decision that was vacated and recommitted.
Decision of reviewing board dated August 23, 2017, affirmed.
By the Court (Agnes, Sacks & Ditkoff, JJ.),
The panelists are listed in order of seniority.
/s/
Clerk Entered: March 11, 2019.