ARMSTRON v. CARLYLE CONSTRUCTION, No. 000570-87 (Dec. 18, 2002)

No. 000570-87Commonwealth of Massachusetts Department of Industrial Accidents
December 18, 2002

REVIEWING BOARD DECISION
(Judges Maze-Rothstein, Wilson and Costigan)

APPEARANCES
Ronald St. Pierre, Esq., for the employee Timothy F. Nevils, Esq., for the insurer
MAZE-ROTHSTEIN, J.

The employee appeals from a decision ordering the insurer to pay “the cost of converting a van to make it accessible to the employee in his motorized wheelchair, or the difference between a converted van and a mid-priced automobile of the same year.” (Dec. 7-8.) The employee argues that G.L.c. 152, § 30, paragraph 4, that allows payment for a “mechanical appliance, ” which “will promote [an employee’s] restoration to or continue him in industry, ” should be read to require reimbursement for the entire cost of the van, rather than just the conversion cost or cost differential. [1] The insurer does not challenge the award. We affirm the decision.

Mr. Armstrong, currently sixty-two years of age, suffered a catastrophic injury on March 10, 1971 in a construction site accident when a piece of lumber fell twenty-eight stories, striking him on the head. (Dec. 2-3). His brain was irreparably damaged after the injury, a year long coma and multiple surgeries. (Employee Br. 2.) The insurer accepted the claim and has voluntarily paid § 34 weekly temporary total incapacity benefits, and § 34A weekly permanent and total incapacity benefits. The insurer also pays benefits pursuant to § 28, for serious and wilful employer misconduct. The employee suffers from depression and is wheelchair-bound. He is totally and permanently incapacitated. (Dec. 2-3.)

On September 23, 1999, the employee filed a claim, later supplemented by a motion to join that included a claim for an electronic wheelchair, an air mattress prescription, past physical therapy treatments, the cost of making his home handicapped accessible, and the cost of a handicapped accessible van. The insurer agreed to pay for the wheelchair, the physical therapy and the air mattress. The employee withdrew, without prejudice, his claim for the architectural renovations. The sole remaining claim at hearing was that for the handicapped accessible van. (Dec. 2-3.)

The case was decided based on stipulated facts and exhibits. (Dec. 2.) The judge declared the § 11A report inadequate[2] because it did not address the issue of whether a handicapped accessible van was reasonable or medically necessary for the employee. (Dec. 4.) The parties were allowed to submit their own medical evidence. The employee submitted three physicians’ reports.[3] See Mendez v. Foxboro Co., 9 Mass. Workers’ Comp. Rep. 641, 646-648 (1995) (where § 11 A(2) refers to “testimony” reviewing board interpreted it as consistent with the requirements of G.L.c. 233, § 79G). The judge adopted the opinions of two experts. One doctor opined that a handicapped accessible van was medically necessary for Mr. Armstrong to help him get to his physical therapy appointments as well as to allow him to pursue recreational activities, which, in turn, would ameliorate his depression and improve his sense of well-being. That physician also thought that having a handicapped accessible van might increase his motivation to have physical therapy. (Dec. 4.) Another doctor, who had been overseeing the employee’s rehabilitation efforts since October 1, 1998, noted a decline in the employee’s level of functioning and a decrease in his motivation to continue physical therapy in June of 2000. He subsequently recommended a home-based program of physical therapy done by a health aide. However, his recommendation would still require the employee to leave home to see a physical therapist once every week or two, and to visit a specially equipped gym two or three times a week. (Dec. 5.)

In his decision, the judge drew on the reviewing board’s holding inStevens v. Northeastern University, 11 Mass. Workers’ Comp. Rep. 167 (1997), “that the cost of a specially equipped van was compensable under the fourth paragraph of Section 30, which permits the judge to order payment for a “mechanical appliance’ if he finds that it will promote the employee’s restoration to industry.” (Dec. 5-6, citing Stevens, supra at 170, 173.) The judge reasoned that since the employee was permanently and totally incapacitated from gainful employment and would not be returning to the workforce, a handicapped accessible van would not promote his restoration to or continue him in industry. Thus, the judge found that employee’s claim did not fall under § 30, paragraph 4. (Dec. 6.)

However, based on the adopted medical opinions of the two aforementioned doctors, the judge found that “the provision of a handicapped accessible van is essential to the employee’s well being, in that he needs to be able to attend physical therapy sessions and other treatments outside the home, which is becoming more difficult and impractical as his condition deteriorates.” (Dec. 6-7.) He concluded that “a handicapped accessible van is necessarily incidental to the provision of adequate and reasonable health care services to the claimant.”[4]
(Dec. 7.) Since the reviewing board had indicated that “cost differences ought to be taken into account, ” Stevens, supra at 172, the judge concluded that the insurer should only be “responsible for paying the cost of converting a van or the difference between the cost of a mid-priced automobile of the same year and a converted van.” (Dec. 7.)

While the employee concedes that he has “no reasonable chance of returning to the work force, ” he nevertheless argues on appeal, that paragraph 4 of § 30 does apply to his situation. (Employee Br. 10.) He submits that provision of the van would promote his restoration to “industry” not just in the sense of restoration to work, but in the sense of restoration to his community despite his physical limitations. He assumes that if paragraph 4 is applicable, the insurer is necessarily responsible for the entire cost of the van. We find no merit to the employee’s arguments.

In Stevens, we clearly linked an order of payment for an accessible van under § 30, paragraph 4, to the employee’s pursuit of vocational services:[5]

This particular aspect of § 30, by virtue of the plain meaning of the language used, includes consideration of practical vocational questions such as the employee’s access to reliable transportation, where she lives and where her retraining and employment prospects are located, in order to reach whether the contested transportation will have a positive effect on “an injured employee’s ability to hold a job or obtain a new position.’ Scheffler’s Case, 419 Mass. 251, 256 (1994). The quoted language from [the fourth paragraph of] § 30, supra, explicitly directs this assessment.

Stevens, supra at 170. See also L. Locke, Workmen’s Compensation § 9.4, at 237-238 n. 1 (Koziol supp. 2000). We noted that the Massachusetts statute was unique in that “§ 30 specifically directs attention beyond the strictly medical realm to the vocational realm by allowing compensability to be determined by “an administrative judge, the reviewing board, the office of education and vocational rehabilitation or the health care services board….'” Id. at 172, quoting G.L.c. 152, § 30. Though we found no uniformity of statutory language or interpretation in other states, we found most similar a North Dakota statute which was interpreted to authorize payment for retrofitting a van where it was “part of [the employee’s] rehabilitation and return to employment.” Meyer v. North Dakota Workers’ Compensation Bureau, 512 N.W.2d 680, 684 (N.D. 1994) (emphasis added). We concluded that:

Because we find our statute like those of some sister states will allow for transportation assistance up to and including a van, if continuing causation is established and under the fourth paragraph of § 30 the judge finds that a specially equipped van will promote the employee’s restoration to or continue her in industry, he must order the insurer to provide it or some reasonable equivalent, for so long as such appliance is made necessary by the continuing effects of the work injury.

Stevens, supra at 173. Thus, the employee’s argument that the word “industry” in § 30 can be stretched to mean return to the community, and not necessarily return to gainful employment, is not supported by either the statute or by our interpretation of it in Stevens.

Even if the employee’s claim did properly fall under paragraph 4 of § 30, there would be no error in the judge’s award of conversion or differential costs rather than the entire cost of an accessible van. InStevens, as the judge here noted, we stated that “cost differences ought to be taken into account, ” and cited approvingly jurisdictions which allowed only the cost of retrofitting a van, or the difference between a car and an accessible van. Id. at 172, citing Meyer, supra, and Crouch
v. West Virginia Workers’ Compensation Com’r., 184 W. Va. 730 (1991). While leaving the “particulars” for the parties to work out on recommittal, we held only that § 30, paragraph 4 allowed “transportation assistance up to and including a van… .” Id. at 173. Such a holding does not necessarily require that the insurer cover the entire cost of the accessible van.

The insurer has not appealed and does not, in its brief, challenge the judge’s award under § 30, paragraph 1, of the additional cost of making a van wheelchair accessible. Therefore, we do not address the applicability of § 30, paragraph 1 to this situation.[6] We do note in passing, however, that Massachusetts courts have approved expenses necessarily incidental to medical services, including taxi rides to and from medical appointments, Snider’s Case, 334 Mass. 65 (1956), and air and ground expenses incurred in travelling out of state on the advice of employee’s physician. Levenson’s Case, 346 Mass. 508 (1963).

The decision of the administrative judge is affirmed.

So ordered.

________________________ Susan Maze-Rothstein Administrative Law Judge
________________________ Patricia A. Costigan Administrative Law Judge

________________________ Sara Holmes Wilson Administrative Law Judge Filed: SMR/1k