Opinion
14-P-655
01-23-2015
THOMAS HOLLOW'S CASE.
NOTICE: Summary decisions issued by the Appeals Court pursuant to its rule 1:28, as amended by 73 Mass. App. Ct. 1001 (2009), are primarily directed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, such decisions are not circulated to the entire court and, therefore, represent only the views of the panel that decided the case. A summary decision pursuant to rule 1:28 issued after February 25, 2008, may be cited for its persuasive value but, because of the limitations noted above, not as binding precedent. See Chace v. Curran, 71 Mass. App. Ct. 258, 260 n.4 (2008).
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
The employee, Thomas Hollow, appeals from a decision of the reviewing board of the Department of Industrial Accidents (board) summarily affirming the administrative judge's decision to discontinue his temporary total incapacity compensation that was paid pursuant to G. L. c. 152 § 34. He asserts that the board erred in affirming the administrative judge's decision. We affirm.
Background. While working at a Market Basket grocery store on June 8, 2010, Hollow was struck in the head by a thirty pound box when it fell from a shelf approximately fifteen feet high. The insurer, Zurich American Insurance Company, accepted liability for Hollow's head injury, and he began receiving § 34 temporary total incapacity benefits on June 15, 2010. In August, 2011, Hollow filed a medical services claim under G. L. c. 152 §§ 13 and 30 for Botox injections to treat his headaches which he claimed resulted from the accident. At a conference on October 25, 2011, an administrative judge granted Hollow's medical services claim. The insurer appealed the decision to grant Hollow's medical services claim and also moved to discontinue its payment of § 34 benefits. A different administrative judge held a hearing on the motion to discontinue benefits and on the allowance of the medical services benefit on August 28, 2012. Hollow testified at the hearing. On May 23, 2013, the administrative judge allowed the insurer's motion to discontinue Hollow's § 34 benefits, ordering that payment could be discontinued as of February 7, 2013. The administrative judge also required the insurer to pay for the second set of Botox injections. Hollow appealed to the board, which summarily affirmed the order of the administrative judge on February 3, 2014. He now appeals.
The insurer does not appeal from the decision that it was required to pay §§ 13 & 30 benefits, and § 34 benefits until February 7, 2013.
Discussion. Hollow asserts numerous errors on appeal, which we address in turn. We review a decision of the board under the standards of the Administrative Procedure Act, G. L. c. 30A § 14(7)(a)-(d) and (f)-(g). Dalbec's Case, 69 Mass. App. Ct. 306, 312 (2007).
Where the board summarily affirms the decision of the administrative judge, we review the findings and decision of the administrative judge. Dalbec's Case, supra at 313, citing Coggin v. Massachusetts Parole Bd., 42 Mass. App. Ct. 584, 587 (1997).
In addition, the parties offered the report of an independent medical examiner. The administrative judge also accepted additional medical evidence under G. L. c. 152 § 11A(2) in the form of medical records from three different doctors and the deposition testimony of Dr. Milosavljevic, Hollow's treating neurologist.
Hollow asserts that the administrative judge's decision was internally inconsistent in discontinuing Hollow's § 34 benefits while allowing his claim for medical services treatment, specifically the Botox injections. There was no error. The inquiry for the administrative judge in determining whether to discontinue § 34 benefits is whether Hollow was so incapacitated that he was unable to return to work. Scheffler's Case, 419 Mass. 251, 256 (1994). Allowing a claim for medical services, thereby acknowledging a medical condition, is not equivalent to determining whether the medical condition so impairs the person that he is unable to return to work. The administrative judge was entitled to accept that Hollow did have headaches which could be potentially relieved by Botox injections and to discredit his testimony that he was unable to return to work. There was no abuse of discretion.
For the same reasons Hollow's related assertion that the administrative judge's decision not to credit Hollow's testimony regarding the extent of his pain conflicts with his decision to allow the medical services claim is unavailing. It is not determinative that the Botox injections are only approved for patients who experience headaches which last for four hours or more on fifteen or more days per month.
Hollow asserts that the administrative judge made an error of law when he failed to accord prima facie effect to the impartial medical examiner's (IME) report. There was no error. An IME report under § 11A is prima facie evidence of the matters contained therein, including the opinion regarding the employee's ability to return to work, if based on medical evidence. Coggin v. Massachusetts Parole Bd., 42 Mass. App. Ct. 584, 589 (1997). The report can only be regarded as prima facie evidence on the issue of the employee's ability to return to work, however, "[i]f that opinion is based on facts which the administrative judge (and ultimately the board) finds are complete and accurate." Scheffler's Case, supra at 257. Facts in an IME report not based on medical knowledge are not prima facie evidence, Young's Case, 64 Mass. App. Ct. 903, 904-905 (2005), and an IME's report based on those facts "is not entitled to any weight unless the fact finder believes the facts on which the report is based." Brommage's Case, 75 Mass. App. Ct. 825, 828 (2009). "Findings of fact, assessments of credibility, and determinations of the weight to be given the evidence are the exclusive function of the administrative judge." Pilon's Case, 69 Mass. App. Ct. 167, 169 (2007). The facts supporting the IME's medical opinion concerning Hollow's ability to return to work rested solely on Hollow's statements to his doctors, which the administrative judge did not find credible after observing Hollow and hearing his testimony at the hearing. The administrative judge was not required to give prima facie effect to the IME report's conclusion about Hollow's ability to return to work because he determined it was not based on credible evidence.
The medical evidence presented to the IME for review contained reports of multiple tests conducted to reveal neurological problems, that showed no signs of any abnormalities.
All of the medical evidence presented to the judge for review, including the deposition testimony of Hollow's treating neurologist, was based on Hollow's reported pain. However, the administrative judge did not find "dispositive evidence between the claimed workplace accident headaches and the Employee's incapacity for work after the February 7, 2013 date."
Hollow claims that the administrative judge abused his discretion because his decision did not discuss the IME report or any of the other medical evidence presented as an exhibit and, instead, only discussed the deposition testimony of Hollow's treating neurologist. We do not agree. The administrative judge stated at the beginning of his decision that he considered all of the testimony and exhibits in the case. The administrative judge is not required to discuss every exhibit in his decision. See Sylva's Case, 46 Mass. App. Ct. 679, 681 (1999). Indeed, all of those exhibits rested on the same facts that the administrative judge chose not to credit, and that he discussed at length in his decision.
Finally, Hollow asserts that it was an error of law for the administrative judge to discontinue the § 34 benefits on a date that was not anchored in the credited testimony or adopted evidence. While error, it was harmless, indeed beneficial, as to Hollow. The administrative judge indicated that he discontinued the benefits on February 7, 2013, so as not to disturb the benefits Hollow already had received. Indeed, because the administrative judge did not credit Hollow's testimony at the August 28, 2012, hearing, it would not have been an abuse of his discretion to discontinue his benefits as of August, 2012, after reading the deposition testimony and the other medical exhibits.
Decision of reviewing board affirmed.
By the Court (Kafker, Grainger & Agnes, JJ.),
The panelists are listed in order of seniority.
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Clerk Entered: January 23, 2015.