Decision  John P. Casey v. Town of Brookline

Date:	06/20/2003
Organization:	Department of Industrial Accidents
Docket Number:	DIA Board No. 011599-99
Location:	Boston
Referenced Sources:	John Saccone v. Dept. of Public Health Michael Medley v. E. F. Hauserman Richard Blais v. BJ's Wholesale

COSTIGAN, J. The self-insurer appeals from a decision awarding the employee total incapacity benefits under G. L. c. 152, § 34, to exhaustion, and then under § 34A, on the basis that entitlement to § 34A permanent and total incapacity benefits was not claimed by the employee nor litigated by the parties. The administrative judge did not file his decision until seventeen months after the December 2000 close of the record, which hiatus resulted in the exhaustion, prior to such filing, of the § 34 benefits he ultimately awarded.¹ The judge’s solution to that dilemma was to sua sponte award the employee § 34A permanent and total incapacity benefits from and after March 30, 2002.² The self-insurer also challenges the judge’s finding of causal relationship between the alleged industrial accident and the employee’s low back disability, and the award of a § 7 penalty. While we affirm the causal relationship finding, we reverse the awards of § 34A benefits and the § 7 penalty.

 

¹ The only expert medical opinion in evidence was that of the § 11A impartial physician, who examined the employee on January 12, 2000. In his report of that same date, the doctor opined that the employee’s "current status makes him disabled for work at this time. However, as he improves, he can likely get back to work, initially on a limited basis . . . However, it is clear that he does have a herniated disc, that he will incur some disability associated with that and that even though he is improving with conservative treatment, he might require surgery in the future." (Stat. Ex. 1, 3; emphasis added.) When deposed on December 1, 2000, almost eleven months after his examination of the employee, the doctor was questioned at length by both parties about his causal relationship opinion, but was not asked a single question relative to the extent of the employee’s medical disability during that interval.

Within a week of that deposition, the employee filed a motion to have the § 11A report stricken or declared inadequate, or the medical issues declared complex, and to allow the parties to present additional medical evidence. (The judge’s decision incorrectly states that the motion to strike was based on inadequacy only. See Dec. 2.) Because the judge’s decision reveals nothing more about the motion, as we are permitted to do, we have reviewed the Board file and have taken judicial notice of the motion, the self-insurer’s opposition to the motion, and the

judge’s denial of the motion after oral arguments. Rizzo v. M.B.T.A., 16 Mass. Workers’ Comp. Rep. 160, 161 n. 3 (2002). Several grounds were asserted in the employee’s motion, but none referred to the absence in the record of a medical opinion addressing the extent of the employee’s medical disability after January 12, 2000. After the motion was denied, neither party took any further action to introduce such evidence.

On May 31, 2002, some two years and four months after the § 11A examination, the administrative judge cited to that sole opinion to find that the employee had been and remained totally disabled: "In light of the restrictions defined by Dr. Johnson relative to Mr. Casey’s lower back injury, he is totally disabled." (Dec. 5; emphasis added). The self-insurer, however, has not challenged that finding or the award of § 34 benefits through March 29, 2002, as unsupported by the requisite medical opinion. See Holt v. City of Boston School Dep’t, 16 Mass. Workers’ Comp. Rep. 387, 394 (2002), citing Galloway’s Case, 354 Mass. 427, 431 (1968). The self-insurer does not argue that the § 34 award was erroneous as to the extent and duration of disability, only that the disability was not causally related to the claimed injury at work. Therefore, we do not disturb that award.

² Shortly after the administrative judge filed his decision, the Appeals Court held that exhaustion of § 34 temporary total incapacity benefits is not a prerequisite to a § 34A claim. Slater’s Case, 55 Mass. App. Ct. 326 (2002). The critical error here, however, is that there was neither a claim for § 34A benefits, nor an expert medical opinion as to permanent and total disability, before the judge.