Opinion
11-P-355
04-02-2012
DOUGLAS WENTWORTH'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 appeals the affirmance by a Department of Industrial Accidents reviewing board (board) of an administrative judge's (AJ) denial of claims for workers' compensation benefits under G. L. c. 152, § 34A (permanent and total incapacity), and G. L. c. 152, § 35 (partial incapacity). On appeal, the employee alleges that the AJ's decision to deny benefits was based on a false characterization of the impartial psychiatric examiner's testimony, and, thus, was arbitrary, capricious, and contrary to the law. We affirm.
1. Background. The employee worked delivering eggs for a distributor. One day, he attempted to catch a case of eggs that was falling while he carried it to his two-wheeler, and felt a sharp pain in his right arm and neck. The employee has not worked since that day and claims that as a result of this injury, he is always in pain and has been forced to change his once active life-style to a sedentary one. He also claims that the injury has rendered him depressed and anxious, which has required prescription medication and the services of mental health practitioners.
Since the injury, the employee's treatment for his injuries has been sparse. The precise nature of the employee's physical injury, however, remains unknown because he has failed to obtain a magnetic resonance image (MRI), which his health care providers consistently have determined to be the necessary diagnostic test. Though the employee admitted at a hearing before the AJ that his insurer had approved coverage of an MRI, at various times, the employee told his physicians that his insurer would not cover the cost. To explain why he never obtained an MRI, the employee testified that 'something happened, and it didn't happen, and that was the end of that.'
In 2007, the employee was examined by multiple doctors, including a neurologist and an orthopedic surgeon. These doctors agreed that the employee required an MRI to identify the cause of his subjective symptoms. One doctor noted that the employee was 'incapacitated by depression' because '[n]o diagnosis has been made.' Another suggested that further diagnostic testing 'would help determine whether [the employee's] subjective symptoms are matched by any objective findings.' The employee was evaluated by two additional doctors in 2008, one of whom found that there were no objective signs of neurological impairment.
The employee repeatedly has filed claims for benefits that either have been paid by order or by agreement of the parties. The claims that are the subject of this appeal were for benefits under G. L. c. 152, § 34A, commencing March 28, 2008, or, alternatively, benefits under G. L. c. 152, § 35, commencing March 9, 2008. These claims were the subject of a conference before the AJ on August 18, 2009. In the resulting written decision, the AJ found, in relevant part, as follows:
'The employee has failed to adequately pursue the so-called Cadillac of diagnostic tools, Magnetic Resonance Imaging, to define his medical condition. I infer from this that either he is not in significant pain, or he has not been sufficiently interested in getting at the truth. The dearth of MRI findings has hindered physicians' abilities to make meaningful recommendations for improving his lot. He has become mired in a scenario in which (a) he does not undergo available diagnostic tests, (b) this lack of MRI results blocks his physicians from being able to even suggest preferred ameliorative measures, (c) he may actually feel pain because he believes that he is in pain, and (d) he feels depressed because he is not getting better. This is a vicious circle.'
The AJ, therefore, concluded that the employee failed to prove his entitlement to either § 34A or § 35 benefits. The employee appealed this decision to the board, which summarily affirmed the AJ's decision.
2. Discussion. We review to consider whether the board correctly decided that the AJ's decision was factually warranted and not arbitrary, capricious, or contrary to law. See G. L.
c. 30A, § 14(7)(a)-(d), (f), and (g); G. L. c. 152, § 12(2). See also Scheffler's Case, 419 Mass. 251, 257-258 (1994).
The employee alleges that the AJ falsely characterized the opinion of Dr. Mark Cutler, the impartial psychiatric examiner who examined the employee. G. L. c. 152, § 11A. That is not supported by the record. In his written decision, the AJ accurately summarized Dr. Cutler's opinion.
At the hearing, the AJ determined that Dr. Cutler's report was inadequate, and authorized the submission of additional medical testimony. G. L. c. 152, § 11A(2). Dr. Cutler also was deposed by the employee and the deposition transcript was admitted in evidence.
The employee argues that the AJ improperly minimized the significance of the temporal relationship that Dr. Cutler believed to exist between the employee's current psychiatric condition and his workplace injury. This argument, however, misses the point. While the AJ acknowledged Dr. Cutler's belief that the employee's psychiatric symptoms initially were related to his workplace injury, the AJ astutely chose to focus on Dr. Cutler's belief that the employee's current subjective symptoms stem from his inability to work and the unresolved status of his legal case. Therefore, the AJ appropriately reasoned that to continue awarding the employee workers' compensation benefits would only perpetuate the employee's subjective symptoms. Indeed, this conclusion was supported by the additional evidence considered by the AJ, which included a plethora of medical records and reports, a lengthy procedural history, no objective signs of physical injury, and the employee's seeming disinterest in improving his condition, evidenced by his unwillingness to submit to an MRI.
In sum, the AJ's decision was amply supported by the evidence. Accordingly, we can not find that it was arbitrary, capricious, or contrary to law.
We decline the employee's request for appellate attorney's fees.
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Decision of reviewing board affirmed.
By the Court (Berry, Brown & Grainger, JJ.),