BOTELHO v. AMES SAFETY ENVELOPE CO., No. 022900-00 (Dec. 23, 2009)

No. 022900-00.Commonwealth of Massachusetts Department of Industrial Accidents
December 23, 2009.

REVIEWING BOARD DECISION

(Judges McCarthy, Horan and Koziol)

The case was heard by Administrative Judge Bean

APPEARANCES

Alan S. Pierce, Esq., for the employee

Pamela G. Smith, Esq., for the insurer at hearing and on appeal

Peter M. LoVerme, Esq., for the insurer on appeal

McCARTHY, J.

The insurer appeals from a decision awarding the employee permanent and total incapacity benefits for impairments to his knee and lower back, causally related to his work injury of June 6, 2000. The insurer argues the judge erred by finding and concluding that the medical evidence satisfied the employee’s burden of proving that his work injuries remained “a major but not necessarily predominant cause” of his disability under the provisions of § 1(7A).[1] For the reasons that follow, we affirm the decision.

The employee suffered from significant pre-existing degenerative conditions in his left knee (osteoarthritis), and lower back (osteoarthritis, spondylosis, and spinal stenosis). (Dec. I, 363.)[2]
The judge addressed the interplay between the causally related injuries and those pre-existing conditions in his medical findings. (Dec. II, 495.) The judge relied on both the impartial physician, Dr. Ellen Lathi, and the employee’s physician, Dr. Joel Saperstein, in reaching his conclusion. (Dec. II, 495, 497.) The judge adopted Dr. Lathi’s opinion that, “[a]lthough there is a pre-existing history of . . . lumbar strain related to the degenerative spondylylosis and spinal stenosis noted above, there is no history of disability in the workplace until [the injury of] 06/06/00.” Id. The judge made the following findings as to Dr. Saperstein’s opinion:

He causally related the employee’s traumatic arthritis of the left knee and traumatic arthritis of the lumbosacral spine to the industrial injury of June 6, 2000 writing that his opinion is based on the employee’s `history, physical (examination), opinions from other physicians and using the guidelines as reference point that (the employee’s) major but not necessarily predominant causation is as a result of the injury at work causing the traumatic arthritis of his knee and lower back.’

(Dec. II, 496; emphasis added.)

The judge concluded, based on the “persuasive medical opinions of Doctors Lathi and Saperstein,” that “[t]he twisting injury to the employee’s knee and the resulting altered gait [causing injury to his lower back] are major causes of the employee’s continuing total and permanent disability within the meaning of § 1(7A).” (Dec. II, 497.)

The insurer contends the judge’s decision is contrary to law, because he found “a major” causation without support in the medical evidence. We disagree. The judge’s findings accurately reflect the medical opinions of both Drs. Lathi and Saperstein. Dr. Saperstein’s opinion, in particular, satisfies the employee’s burden of proving that the work injuries to his knee and back remained “major” causes of his permanent and total disability. The insurer’s argument actually ignores Dr. Saperstein’s opinion entirely, by focusing laser-like upon the judge’s specific adoption of a paragraph from Dr. Lathi’s report. (Dec. II, 495.) The insurer’s argument notwithstanding, the judge’s statement, “I adopt the above paragraph [of Dr. Lathi’s report] as my findings in this case,” does not exclude his stated reliance on Dr. Saperstein’s opinion as another sound basis for his conclusion. The decision is affirmed and the insurer is ordered to pay employee’s counsel a fee of $1,497.28 pursuant to § 13A(6).

So ordered.

________________________________ William A. McCarthy Administrative Law Judge
_________________________________ Mark D. Horan Administrative Law Judge
_________________________________ Catherine Watson Koziol Administrative Law Judge

Filed: December 23, 2009