Opinion
11-P-976
04-30-2012
EDWARD SANCHEZ'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 applied for G. L. c. 152, § 34, benefits arising out of two work-related accidents. He sought the maximum allowable time period of 156 weeks. The administrative judge, after a hearing, ordered benefits for significantly less time than requested by the employee. Both the employee and the insurer appealed to the reviewing board (board), which affirmed the decision of the administrative judge. The employee appeals, arguing that (1) there was insufficient evidence to allow the administrative judge to disregard the independent medical examiner's opinion as to the extent of disability, (2) the administrative judge improperly 'deleted' one of the employee's proferred medical reports, and (3) the administrative judge exhibited bias.
The employee developed a nonwork-related foot injury that required surgery in January of 2008. Following surgery, the employee favored his right leg and this caused unusual stresses on his back. After a three-month absence, he returned to work. After his return, he continued to see a foot doctor, who in April of 2008 referred him to an orthopedic surgeon regarding his ongoing complaints of back pain and sciatica. The employee took vacation time in order to be out of work for ten consecutive calendar days in early May, 2008.
The employee reported an industrial injury on May 28, 2008, but he missed no work following it. When he saw the orthopedic surgeon on June 4, he did not mention any industrial injury occurring in late May. The employee reported another similar industrial injury in July, 2008. He applied for temporary total disability benefits and was examined by an independent medical examiner (IME), who generally concluded that the employee's work-related injuries constituted a 'major' cause of his disability. The administrative judge agreed in part, but also declared the IME's report partially inadequate because it did not cover the full period of the employee's claimed disability. Accordingly, the administrative judge allowed additional medical evidence, which both parties submitted.
In his assessment of the weight and credibility of the IME's evaluation, the administrative judge was well within his discretion to conclude that the additional evidence was more persuasive than the IME's opinion. See Coggin v. Massachusetts Parole Bd., 42 Mass. App. Ct. 584, 589 (1997). In addition, as the board noted, the employee failed to show that he was prejudiced by the administrative judge's 'delet[ion]' of another doctor's report. The administrative judge was also within his discretion in finding that the employee was less than completely credible as a witness; that he had 'attempted to ignore, minimize or deny the existence of his long history of back problems and his multi-year use of narcotic medications, to which he became addicted'; 'that the employee bore ill will to the employer[;] and that this ill will has been a significant motivational force in his pursuit of a worker's compensation claim long after proper medical treatment has been rendered.' As the board noted, '[t]he case law is clear that a negative impression of a party formed by a judge as an adjudicator [is] 'not a ground for the assertion of a disqualifying bias." Robinson v. General Motors Corp., 13 Mass. Workers' Comp. Rep. 207, 215 (1999), quoting from Perez v. Boston Hous. Authy., 379 Mass. 703, 740 (1980). The administrative judge relied on a medical opinion that the employee could return to work -- an opinion unaffected by the employee's attitude toward his employer. The board's decision is affirmed.
So ordered.
By the Court (Grasso, Mills & Trainor, JJ.),