Decision  Andrea O'Rourke v. New York Life Ins. Co.

Date:	08/20/2021
Organization:	Department of Industrial Accidents
Docket Number:	DIA Board No. 012706-11
Location:	Boston, MA
Referenced Sources:	Andrea O'Rourke v. New York Life Insurance Andrea O'Rourke v. New York Life Insurance Company

• Employee: Andrea O'Rourke
• Employer: New York Life Ins. Co.
• Insurer: Pacific Indemnity Company

LONG, J. This is the third appeal of this matter to the reviewing board. Following the first appeal by the insurer, we vacated the initial hearing decision issued by a prior administrative judge, who ordered ongoing § 34 temporary total incapacity benefits, §§ 13 and 30 medical benefits for physical and emotional injuries, and a § 13A(5) attorneys’ fee. O’Rourke v. New York Life Ins. Co., 30 Mass. Workers’ Comp. Rep., 303 (2016). After a hearing de novo before the current judge, the employee’s claims for both her physical and emotional injuries were denied and dismissed. The employee successfully appealed the second decision to the reviewing board, where we found the judge mischaracterized medical evidence relied upon in the hearing.¹ “Specifically, the judge’s findings of fact regarding the medical opinions of Dr. James Lehrich are internally inconsistent, resulting in a mischaracterization of his opinion. The error is not harmless because the judge adopted the mischaracterized opinion and expressly relied upon it to deny and dismiss the employee’s claim. As a result, we vacate the decision in part, and recommit the matter for further findings of fact.” O’Rourke v. New York Life Ins. Co., 33 Mass. Workers’ Comp. Rep. ____ (2019). The matter was recommitted to the judge who issued the present decision² without taking any further evidence; however, telephonic status conferences were held with the parties prior to its issuance. (Dec. III, 3.) The current cross appeals allege multiple errors within Dec. III. Finding merit in several of the issues raised by the insurer, we again vacate some of the judge’s findings, uphold portions of others and summarily deny the employee’s appeal.

¹ At both § 11 hearings held on this matter, attorney Michael J. Powell represented the employee, while attorney Thomas Doherty, III, has represented the employee for her appeals to the reviewing board.

² For ease of reference, we will refer to the initial vacated hearing decision, issued by Administrative Judge Douglas McDonald, as “Dec. I”; the second vacated decision, issued by Administrative Judge Sabina Herlihy, will be “Dec. II;” and, the current recommittal decision under appeal will be “Dec. III.” We also note that both Judge McDonald and Judge Herlihy no longer serve as Administrative Judges at the DIA.