Decision  Anthony Orlofski v. Town of Wales

Date:	05/06/2009
Organization:	Department of Industrial Accidents
Docket Number:	DIA Board No. 029591-04
Location:	Boston
Referenced Sources:	Anthony Orlofski v. Town of Wales Anthony Orlofski v. Town of Wales

• Employee: Anthony Orlofski
• Employer: Town of Wales
• Insurer: MIIA Workers' Compensation SIG

COSTIGAN, J. The parties cross-appeal from a decision in which the administrative judge awarded the employee § 35 partial incapacity benefits for an accepted 2004 low back injury, but denied his emotional distress claim.¹ The employee argues the judge erred in denying his claim based on the "bona fide personnel action" exception in § 1(7A). He also contends the judge acted arbitrarily, capriciously and in violation of his due process rights by excluding, as irrelevant, certain testimony about his encounter with the insurer's evaluating psychiatrist. The insurer argues the award of ongoing § 35 benefits is wholly unsupported by the only expert medical opinion in evidence addressing the employee's physical complaints -- that of the § 11A impartial medical examiner.² For the reasons that follow, we affirm the judge's decision in part, reverse it in part, and vacate his award of benefits.

¹  The judge characterized that aspect of the employee's claim as involving "a discrete set of events leading to an emotional disability, including both initial liability and continuing disability." (Dec. 2.)

²  Based on the emotional distress claim, which had been joined and denied at the § 10A conference, (Dec. 1), upon motion of the employee, the judge deemed the medical issues complex and allowed the parties to submit their respective expert psychiatric testimony. (Tr. I, 4, 79.) The employee offered the December 29, 2004 and January 24, 2006 reports of Dr. Zamir Nestelbaum. (Employee Ex. 2.) The insurer offered the March 1, 2005, May 18, 2005 and May 30, 2005 reports of Dr. Walter A. Borden. (Ins. Ex. 2.) The employee deposed Dr. Borden on May 24, 2006 and Dr. Nestelbaum on June 21, 2006.