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In re Otero

Appeals Court of Massachusetts.
Jun 26, 2012
82 Mass. App. Ct. 1103 (Mass. App. Ct. 2012)

Opinion

No. 11–P–1917.

2012-06-26

Nereida OTERO'S CASE.


By the Court (WOLOHOJIAN, SMITH & AGNES, JJ.).

MEMORANDUM AND ORDER PURSUANT TO RULE 1:28

Plaintiff Nereida Otero claims that the reviewing board of the Department of Industrial Accidents (DIA) committed two reversible errors in summarily affirming the decision of the administrative judge (AJ), which denied her claim for workers' compensation benefits. Pursuant to G.L. c. 152, § 12(2), we review the decisions of the reviewing board under the standards laid out in G.L. c. 30A, § 14(7)( a )-( d ), ( f )-( g ). Dalbec's Case, 69 Mass.App.Ct. 306, 312 (2007). These standards allow for reversal where the record shows the administrative adjudication to be, inter alia, “Based upon an error of law; or ... Arbitrary or capricious, an abuse of discretion, or otherwise not in accordance with law.” Id. at 312 n. 8, quoting from G.L. c. 30A, § 14(7), as amended by St.1973, c. 1114, § 3. Where the reviewing board summarily affirms the decision of the AJ, we “look to that decision to determine whether the action of the board [was] correct.” Coggin v. Massachusetts Parole Bd., 42 Mass.App.Ct. 584, 587 (1997), quoting from Nowak's Case, 2 Mass.App.Ct. 498, 499 (1974). First, Otero argues that the AJ erred in denying her the right to cross-examine a therapist who prepared an “Outpatient Initial Evaluation” for the New England Rehabilitation Hospital that was admitted into evidence. See Haley's Case, 356 Mass. 678, 681 (1970) (parties in workers' compensation proceedings entitled to cross-examine witnesses of other parties, to know what evidence is presented against them, and to have an opportunity to rebut it). Under DIA regulations, parties have the right to depose physicians who prepare medical reports admitted in evidence, in order to cross-examine them. 452 Code Mass. Regs. §§ 1.11(6)(c), 1.12(5) (2008). In the present case, the appellate record is devoid of any indication that Otero ever actually requested that the AJ allow her to depose the therapist. Since it was Otero's duty to provide a record appendix sufficient to support her claims on appeal, this alone disposes of Otero's claim of error. See Mass.R.A.P. 18(a), (b), as amended, 425 Mass. 1602 (1997).

In addition, it is unclear that the DIA regulations, which allow for the deposition of “physician[s]” who prepare “medical report [s]”, see 452 Code Mass. Regs. § 1.11(6)(c), apply to the therapist who prepares what appears to be a simple recitation of information provided to the therapist by the patient.

Otero included a footnote in her opening appellate brief indicating that, if the Appeals Court allowed her to do so, she would supplement the record appendix with her written closing argument in which, she claims, she requested the opportunity to cross-examine the therapist. However, Otero does not explain why she did not include this document in the initial record appendix and never made an actual motion to supplement the record.

Second, Otero argues that the AJ's decision must be reversed because the AJ's findings of fact were “lacking and imprecise,” “internally inconsistent,” and fail to mention some documentary evidence. These arguments boil down to objections to the AJ's credibility determinations and the form of some of the AJ's subsidiary findings of fact, which are an insubstantial basis for an appeal. See Pilon's Case, 69 Mass.App.Ct. 167, 169 (2007) (“Findings of fact, assessments of credibility, and determinations of the weight to be given the evidence are the exclusive function of the administrative judge”). Needless to say, these arguments do not establish that the judge's findings of fact were arbitrary and capricious, an abuse of discretion, or otherwise not in accordance with law. See G.L. c. 30A, § 14(7)( g ).

Otero's request for appellate attorney's fees and costs is denied.

Decision of reviewing board affirmed.


Summaries of

In re Otero

Appeals Court of Massachusetts.
Jun 26, 2012
82 Mass. App. Ct. 1103 (Mass. App. Ct. 2012)
Case details for

In re Otero

Case Details

Full title:Nereida OTERO'S CASE.

Court:Appeals Court of Massachusetts.

Date published: Jun 26, 2012

Citations

82 Mass. App. Ct. 1103 (Mass. App. Ct. 2012)
969 N.E.2d 749