Opinion
No. 15–P–147.
07-05-2016
Rita DIXON's Case.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
Rita Dixon appeals from a decision of the reviewing board (board) of the Department of Industrial Accidents (DIA), affirming an administrative judge's allowance of the insurer's complaint to discontinue temporary total incapacity benefits under G.L. c. 152, § 34. We affirm, essentially for the reasons well explained by the board.
Background. On June 24, 2010, during her employment with the Urban League of Eastern Massachusetts (employer), Dixon suffered a workplace injury when she fell to the floor after slipping on a “throw rug” while performing employment duties. The employer admitted the industrial accident and accepted liability for the employee's right ankle sprain, left hip contusion, and back strain. On July 19, 2010, Dixon began receiving § 34 temporary incapacity benefits. In 2011, the employer filed a complaint seeking to discontinue § 34 benefits as of July 15, 2011. After an administrative judge denied the request, the employer appealed and the matter was set for hearing.
An impartial medical examiner (IME), Dr. Shea, was appointed and Shea examined Dixon in December, 2012. Shea essentially opined that Dixon had fully recovered from the injuries related to the 2010 industrial accident, and that her continuing physical difficulties were unrelated to the accident. The administrative judge found that Shea's opinion inadequately addressed Dixon's left hip injury, and that the back injury was medically complex; she therefore allowed the parties to submit additional medical evidence. Ultimately, after considering the parties' submissions and the testimony at the de novo hearing, the administrative judge concluded that “any medical difficulties the employee continued to experience after [July 15, 2011, were] not causally related to the June 24, [2010,] work accident.” Dixon appealed the decision to the board pursuant to G.L. c. 152, § 11C.
On appeal to the board, Dixon first argued that the administrative judge erroneously failed to consider “all the issues” presented, insofar as she did not specifically or explicitly address the employee's left hip injury. The board disagreed, noting that, “[w]hile the cited excerpt [in Dixon's brief] lends surface appeal to the employee's argument, the argument lacks merit when considered in context of the decision as a whole. The record, and the facts found by the judge, show she did not fail to address all of the issues in controversy.”
Dixon next argued that the administrative judge erroneously failed to consider all the evidence submitted; specifically, the judge did not list or comment on Dixon's additional medical information admitted in evidence. Again, the board disagreed, stating, “[f]ailure to list an item as an exhibit does not automatically mean the item was not reviewed by the judge.” The board found there was ample evidentiary support for the judge's findings, responding that administrative judges have never been required “to list separately, exhibits that are attached to a deposition” nor does the judge “need [to] comment on every single piece of evidence to ensure it was reviewed, but merely must identify and address those items of evidence that she finds persuasive or that she adopts.”
Specifically, the board found that “[t]he reports of Dr. Fraser and Dr. Miley, referred to by the employee, were introduced as exhibits during Dr. Fraser's deposition. Dr. Fraser was examined regarding the contents of those reports. Dr. Yablon also was questioned about Dr. Miley's report of June 10, 2013. In the body of her decision, the judge ruled on the objections presented at both depositions. As such, we are confident she reviewed both depositions and their exhibits.... In addition, the employee's closing argument referred to each of these reports and used the opinions expressed therein to support her claim. The judge specifically stated that she considered the testimony, the exhibits, and the closing arguments of counsel.”
Finally, Dixon argued that the administrative judge erroneously denied her request to supplement the medical evidence with respect to the employee's right ankle sprain. The board found no error on this point, because “[h]aving found Dr. Shea's report to be adequate regarding the right ankle injury, the judge properly adopted his medical opinion pertaining to that injury.”
Discussion. Dixon argues on appeal much as she did below, essentially raising the same three arguments. “We review a board's decision regarding workers' compensation benefits under the usual standard for appeal from a final decision of an administrative agency set forth in G.L. c. 30A, § 14(7).” Wadsworth's Case, 461 Mass. 675, 679 (2012). In a case, as here, where the board affirms the appealed decision, “we review the findings and conclusions of the administrative judge.” Eady's Case, 72 Mass.App.Ct. 724, 726 (2008). “Findings of fact, assessments of credibility, and determinations of the weight to be given the evidence are the exclusive function of the administrative judge.” Pilon's Case, 69 Mass.App.Ct. 167, 169 (2007).
Dixon's first argument, relating specifically to her hip injury is without merit. As stated in the administrative judge's detailed decision, the record was opened for the submission of additional medical evidence because the administrative judge found that the IME's report on the hip injury was inadequate. After a hearing, the administrative judge adopted the opinion of Dr. Yablon, an orthopedic surgeon, who examined Dixon on behalf of the insurer, stating that Dixon could return to work with a lifting restriction, and that “any difficulty [Dixon] was experiencing was ‘due to arthritis ’ and not causally connected to her 2010 work injury”; there was no evidence offered indicating otherwise. The administrative judge is entitled to adopt the opinion of one expert over another and, in so doing, provide a sufficient showing as to medical evidence relied upon. See Carpenter's Case, 456 Mass. 436, 444 (2010) ; Ingalls's Case, 63 Mass.App.Ct. 901, 902 (2005).
Dixon's second argument, that the administrative judge failed to consider all the evidence, also fails. The administrative judge issued detailed findings of fact, noting the hearing testimony, exhibits, and closing arguments of the parties in rendering her findings and decision. Within the exhibits admitted, was a transcript of Dr. Yablon's deposition, in which he refutes Dr. Miley's June 10, 2013, report; a transcript of Dr. Fraser's deposition, as well as Dr. Fraser's February 13, 2013, and July 22, 2013, reports; and Dr. Miley's June 10, 2013, report, each marked as an exhibit to Fraser's deposition. Dixon's closing argument references these same reports. An administrative judge is not required to discuss specifically every consulted exhibit in explaining her decision. See Sylva's Case, 46 Mass.App.Ct. 679, 681 (1999).
Finally, as to Dixon's third argument, the administrative judge appropriately opened the record for additional evidence regarding Dixon's hip and back injuries; as she found Dr. Shea's report sufficient with regard to the ankle injury, the administrative judge was entitled to decline to open the record for further medical reports on that injury. See G.L. c. 152, § 11A(2) ; Higgins's Case, 460 Mass. 50, 60 (2011).
The question for the administrative judge in determining whether to discontinue § 34 benefits is whether Dixon was so incapacitated by the injuries caused by the industrial accident that she is unable to return to work. See Scheffler's Case, 419 Mass. 251, 256 (1994). Here, the administrative judge's findings, supplemented with evidence from the record, amply support her conclusion that Dixon's injuries suffered as a result of the industrial accident “had resolved prior to the claimed date of July 15, 2011, and that any medical difficulties the employee continued to experience after that date are not causally related to the June 24, 2010, work accident.” Therefore, as the board found, the administrative judge did not exceed the scope of her authority in discontinuing Dixon's § 34 benefits, nor was her decision to do so “arbitrary or capricious, or contrary to law.” G.L. c. 152, § 11C. See Wadsworth's Case, 461 Mass. at 679.
Decision of reviewing board affirmed.
Because Dixon does not prevail on her claim, we decline to award attorney's fees and costs pursuant to G.L. c. 152, § 12A.