Decision  William McNamee v. University of Massachusetts Medical School

Date:	06/15/2022
Organization:	Department of Industrial Accidents
Docket Number:	DIA Board No. 047780-03
Location:	Boston, MA

• Employee: William McNamee
• Employer: University of Massachusetts Medical School
• Self Insurer: Commonwealth of Massachusetts

LONG, J. The employee appeals from a hearing decision dated March 17, 2021, (Decision V),¹ denying his “purely emotional injury” claim for § 34A permanent and total incapacity benefits from November 30, 2017, to date and continuing.  The employee raises several issues in his appeal.  We find merit in his primary argument, with which the self-insurer agrees, that the administrative judge utilized the incorrect “a major cause” standard for adjudicating this dispute.  We hold that the correct standard for determining ongoing causal relationship in this purely emotional injury claim is simple, “but for” causation.  We also agree with the employee that the judge impermissibly adopted Dr. Mufson’s expert opinion but disagree that the judge erred in finding the § 11A examiner, Dr. Nestlebaum, exhibited either bias or the appearance of bias.  We vacate the decision and, because the judge who heard the case has retired, refer the matter to the Senior Judge for assignment to a different judge for adjudication consistent with our instructions contained herein.

¹  This claim has a total of five hearing decisions, which will be referred to as follows:

            Decision I (William Constantino, Jr., Administrative Judge - dated June 12, 2007)
            Decision II (Paul Benoit, Administrative Judge – dated July 8, 2010)
            Decision III (Paul Benoit, Administrative Judge – dated May 21, 2014)
            Decision IV (Paul Benoit, Administrative Judge – dated November 30, 2017)
            Decision V (Paul Benoit, Administrative Judge – dated March 17, 2021)