Opinion
10-P-2005
11-23-2011
STEVEN VALLEE'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
Steven Vallee appeals from a decision of the reviewing board of the Department of Industrial Accidents (board) granting him full disability benefits under G. L. c. 152, § 34, from September 23, 2003, through December 12, 2003. Vallee claims that the 'healing period' determined by the administrative judge, and affirmed by the board, was arbitrary and capricious. Vallee also requests reexamination of an issue this court previously held was without merit. We affirm.
In Vallee's Case, 72 Mass. App. Ct. 1117 (2008), this court held Vallee had not met his burden in demonstrating a reduction in earning capacity.
1. Healing period. In 2008, this court remanded Vallee's case to the Department of Industrial Accidents to determine an end date for his temporary permanent disability for purposes of G. L. c. 152, § 32. We review to determine 'whether the decision is factually warranted and not arbitrary and capricious, in the sense of having adequate evidentiary and factual support and disclosing reasoned decision making.' Moss's Case, 451 Mass. 704, 712 (2008), quoting from Scheffler's Case, 419 Mass. 251, 258 (1994). We give 'due weight to the experience, technical competence, and specialized knowledge of the agency, as well as to the discretionary authority conferred upon it.' G. L. c. 30A, § 14. The administrative judge chose the end date of December 12, 2003, based on the medical records presented to him and testimony of several witnesses, including Vallee. The judge determined that on that December date, Vallee's doctor had noted Vallee's concerns about labor issues, rather than the fact that his injuries had prevented him from going back to work. Specifically, Vallee did not think he could return to work until he could settle issues with his foreman and issues of confidentiality. The judge agreed that Vallee was not able to return to his job at the Brockton housing authority, but he did not find enough evidence that Vallee could not return to work at all.
We noted in our earlier decision, pursuant to Appeals Court rule 1:28, that the end date of the 'healing period' was 'a question of fact' to be determined by the administrative judge on remand. Vallee's Case, 72 Mass. App. Ct. 1117 (2008). The judge's finding will 'be accepted as final if [it is] supported by the evidence, including all rational inferences which could be drawn therefrom.' Foley's Case, 358 Mass. 230, 232 (1970). We cannot conclude that the judge's determination that December 12, 2003, was the end of the 'healing period' was arbitrary and capricious and not based on the evidence. The healing period was meant to give Vallee time to heal and to find a job when he was able to return to work. The judge found, and the board affirmed, that as of December 12, 2003, Vallee did not think he could return to work until labor issues, not his physical symptoms, had been addressed. In his testimony, Vallee also indicated that he could return to work if given more 'limited autonomy.' He also stated that it was possible he could have been less anxious at another job, but never applied or tried to get another job. The judge was entitled to make a rational inference from the notation of December 12, 2003, and from Vallee's testimony that his 'healing period' ended on that date.
2. Vocational assessment. Vallee next requests that we re-examine an issue that this court previously held was without merit. We decline to do so. 'When an issue of fact or law is actually litigated and determined by a valid and final judgment, and the determination is essential to the judgment, the determination is conclusive in a subsequent action between the parties, whether on the same or a different claim.' Fay v. Federal Natl. Mort. Assn., 419 Mass. 782, 789 (1995), quoting from Fireside Motors, Inc. v. Nissan Motor Corp. in U.S.A., 395 Mass. 366, 372 (1985). This court previously held there was no error in the determination that Vallee's earning capacity was not reduced. Vallee's Case, 72 Mass. App. Ct. 1117. Despite this holding, Vallee urges us to reconsider the issue, which was previously litigated among the same parties. This court remanded Vallee's case for the determination of one factual issue, an end date for the 'healing period.' Both parties had the opportunity to litigate, and appeal, the judge's previous decision on earning capacity.
Decision of reviewing board affirmed.
By the Court (Kafker, Trainor & Meade, JJ.),