Opinion
12-P-189
12-20-2012
GARY NICHOLSON'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 employee, Gary Nicholson, appeals from a decision of the reviewing board of the Department of Industrial Accidents (the board) affirming an administrative judge's denial of benefits. We affirm.
Nicholson suffered a work-related injury in 1999. The insurer accepted responsibility for the injury and paid benefits until 2001, at which time Nicholson recovered fully. Thereafter, Nicholson was convicted on various larceny/receiving stolen property charges. Upon his release from prison, he resumed employment.
In 2007, Nicholson left work and filed a new claim for benefits, generally alleging that he had suffered a new industrial injury and/or was suffering from psychological trauma (primarily depression) as a result of either the original or subsequent (or both) injuries. An administrative judge heard the matter, generally concluding that the employee had fully recovered from his 1999 industrial injury in 2001, and that his claimed disability was not related or caused by his original 1999 industrial injury. Specifically, the administrative judge found that 'the [e]mployee, while [employed following his release from prison] did not sustain a new industrial injury, or an aggravation or recurrence of his original industrial injury,' and denied the employee's claims. The board summarily affirmed. This court dismissed the employee's subsequent appeal for failure to prosecute. Almost immediately after the appeal was dismissed, Nicholson filed a new claim for benefits for the period after July 1, 2007, and to date, generally claiming 'continuing psychiatric disability' (depression and drug usage). He was examined by an independent medical examiner (IME) who opined that while Nicholson was suffering from a 'major depressive disorder,' the original 1999 industrial injury was not the predominant or major cause of that condition. Rather, the IME opined that Nicholson's 'life situation,' and in particular his regular use of opioids and personal relationship problems, were the 'major' causes of his depression.
The administrative judge accepted and adopted the IME's opinion and went on to deny the employee's claims, observing that his prior decision on the employee's 2007 claim was res judicata as to the following facts: (i) the employee had fully recovered from his 1999 industrial injury by no later than 2001; and (ii) the employee suffered no new industrial injury before he left work in 2007. As the administrative judge put it:
'Any claim for psychological injury must, then, assert that the [e]mployee has a psychological injury or illness as a result of his 1999 industrial injury. . . . This [e]mployee had recovered from the effects of his physical injury by 2001. He was incarcerated in 2000, and remained incarcerated for about one year, followed by a period of probation that ended in approximately February[,] 2002. He did not have access to opioid medications while incarcerated or while on probation.As noted, the board summarily affirmed.
'He did not receive any care from a mental health professional until 2009, when he consulted with a Dr. Hoffman, on referral from his attorney.
'Dr. Weiner's conclusion that the work injury of July 19, 1999[,] is not the predominant or major cause of the [e]mployee's psychiatric condition conclusively establishes that the [e]mployee did not sustain a compensable personal injury.'
Nicholson argues that the administrative judge employed an incorrect causation standard by using the 'major contributing cause' standard rather than the so-called 'as is' standard. We need not address this argument, however, because the administrative judge found no causal relationship whatsoever between Nicholson's 1999 industrial injury and his present claims.
Next, Nicholson argues that the IME's opinion was inadequate and that, therefore, the administrative judge erred by refusing to open the medical evidence. This claim is unavailing. The IME clearly expressed his opinion that the 'work injury of July 19, 1999, is not the predominant or major cause of Mr. Nicholson's current psychiatric condition.' Section 11A of chapter 152 requires only that the IME state 'whether or not within a reasonable degree of medical certainty any such disability has as its major or predominant contributing cause a personal injury arising out of and in the course of the employee's employment.' G. L. c. 152, § 11A, as appearing in St. 1991, c. 398, § 30.
We also reject Nicholson's argument that the board improperly accepted the insurer's argument that the employee is collaterally estopped from asserting, in Nicholson's words, 'that his opiate dependency has its roots in the 1999 industrial accident for which it is on the risk.' Even if we were to assume that collateral estoppel does not apply (which we do not), the employee is still required to demonstrate a causal relationship between his present complaint and his original 1999 industrial injury. The administrative judge found, as a factual matter, no such relationship.
The employee's request for appellate costs and attorney's fees is denied.
Decision of reviewing board affirmed.
By the Court (Graham, Vuono & Hanlon, JJ.),