Opinion
No. 11–P–1944.
2013-02-20
June L. WERNER's Case.
By the Court (KANTROWITZ, SIKORA & RUBIN, JJ.).
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
There was sufficient medical evidentiary support for the administrative judge's denial of the complaint for modification or discontinuance, even aside from the medical records from the prior hearings. The diagnosis of fibromyalgia in the February, 2010, letter of Dr. Goldenburg is adequately supported by his physical examination of the employee, which revealed tender points consistent with fibromyalgia. Likewise Dr. Schur's 2009 opinion, which also contained a diagnosis of fibromyalgia, was supported by findings regarding poor muscle tone, frozen shoulders, and tender points all over the employee's back. This evidence was sufficient to support the medical opinions that the administrative judge adopted. Those opinions buttress the administrative judge's conclusion. His determination was neither arbitrary nor capricious. See Scheffler's Case, 419 Mass. 251, 258 (1994). This also disposes of the appellant insurance company's contention concerning the administrative judge's reliance on the vocational expert's opinion, a contention that is premised on the insufficiency of the medical evidence. The employee requested attorney's fees in her brief under G.L. c. 152, § 12A. As the prevailing party, she is entitled to reasonable attorney's fees and expenses. In accordance with the procedure described in Fabre v. Walton, 441 Mass. 9, 10–11 (2004), the employee shall, within fourteen days, file with this court and serve on the insurer a motion for determination of her appellate attorney's fees and costs, supported by an affidavit detailing such fees and costs. The insurer may, within fourteen days thereafter, file with this court and serve on the employee any opposition.
Decision of reviewing board affirmed.