BOARD No. 03658890Commonwealth of Massachusetts Department of Industrial Accidents
Filed: October 27, 1998
REVIEWING BOARD DECISION
(Judges McCarthy, Wilson and Smith)
APPEARANCES
Stuart A. Romm, Esq., for the employee.
Andrew P. Saltis, Esq., for the insurer.
McCARTHY, J.
A second appeal by the employee, Katherine Furtado, brings this case back to the reviewing board. We summarize the pertinent procedural history of this claim.
On May 27, 1993, an administrative judge filed a hearing decision in which he awarded several closed periods of temporary total incapacity benefits to Ms. Furtado. The last awarded period ran from February 26, 1991 through December 28, 1992. He also determined that the employee was entitled to weekly partial incapacity benefits under § 35 and made the following finding:
Giving the employee the benefit of any doubt, I find that that the employee was partially disabled from December 28, 1992 to the filing date of this decision.[1] This is a sufficient period during which the acute stage of the employee’s aggravation of her previous condition should have subsided and therefore, partial disability is awarded from December 28, 1992 with a weekly earning capacity of $350.00. (footnote not in original).
(Dec. 16.)
The employee appealed and on December 16, 1994, a reviewing board panel summarily affirmed the hearing judge’s decision. Ms. Furtado then appealed to the Massachusetts Appeals Court and the case came before a single justice of that court. In a Memorandum and Order recommitting the case to the Department of Industrial Accidents, the single justice held that there was no evidence to support the administrative judge’s determination that Ms. Furtado’s work related incapacity ended on May 27, 1993. The single justice directed that further findings be made on Furtado’s “disability termination date” and ordered reconsideration of the decision to dismiss Furtado’s request for a § 11A independent medical examination.[2] Lacking authority to make findings of fact, the reviewing board recommitted the case to the hearing judge for the requisite further findings.
In a decision filed July 31, 1997, the administrative judge determined that a § 11A examination was neither required nor had it been requested at the original hearing. After reconsideration he declined to order such an examination. (Dec 3, 6.) Turning to the ending date of the employee’s incapacity term, the judge vacated his earlier order awarding partial incapacity benefits from December 28, 1992 until May 27, 1993 and terminated all incapacity benefits as of December 28, 1992. We have the case on the employee’s appeal from this decision.
Our authority to review a hearing judge’s decision is found in G.L.c. 152 § 11C. That authority is limited. “The reviewing board shall reverse the decision of an administrative judge only if it determines that such administrative judge’s decision is beyond the scope of his authority, arbitrary or capricious, or contrary to law. The reviewing board may, when appropriate, recommit a case before it to an administrative judge for further findings of fact.”
The employee argues that there were two conferences held in this case. One conference was held prior to the July 1, 1992 effective date of § 11A and the second, so called “reaffirmation conference” was held after the effective date. The reviewing board recently dealt with this precise issue in the case of Martin v. Town ofSwansea School Dept., 12 Mass. Workers’ Comp. Rep. ___ (Slip op. Oct. 27, 1998). There, as here, the two conferences straddled the July 1, 1992 effective date of § 11A. We need not repeat in detail here what was said in that case. The Martin reviewing board panel pointed out that the second conference was purely ministerial and did not affect the rights and obligations of the parties in the manner of a § 10A conference order. The panel also pointed out that the medical evidence in the case was handled exactly as prescribed by regulation (See 452 CMR 1.11(6); 1.12(5)(a)). The parties introduced their own medical evidence under the regulation because the conference order in question was filed well before July 1, 1992, the effective date for implementation of the § 11A impartial medical examination procedure. Following the reasoning of Martin, we cannot say that the hearing judge erred when he declined to order a § 11A medical examination.
The employee next argues that it was arbitrary and capricious and contrary to law to reduce the period of awarded incapacity by six months without receiving additional medical evidence, most appropriately in the form of a § 11A impartial examination. We disagree. In his decision on recommittal the hearing judge, who had the burden of finding the facts and judging the credibility of the witnesses, wrote as follows:
The second issue addressed by the Appeals Court concerns the absence of any evidence tending to support my finding that the employee’s disability ended or should have ended on May 27, 1993, the date the decision was filed. It is clear that my choice of that date was arbitrary . . . . However, my choice of the date of the filing of the decision was an attempt to reach an equitable resolution of the matter without placing the employee in a position where recoupment of an over-payment would result. In cases of this nature where the cessation of benefits is retroactive to a date prior to the filing of a decision, the insurer may, and frequently will, request an order of recoupment. Accordingly, having adopted the opinion of Dr. Brian Mercer contained in his report of December 28, 1992 and expanded upon in his deposition of January 8, 1993, and having noted my own opinions as to the credibility of the employee, my selection of the date of the filing of the decision was an attempt to preclude any liability on the part of the employee for the pay-back of the overpayment of weekly benefits paid subsequent to the date of Dr. Mercer’s examination.
Dr. Mercer, in his deposition of January 18, 1993, states in response to question from Counsel for the insurer (depo. p. 25):
`yes, it’s my opinion to a reasonable degree of medical certainty that she did sustain a cervical sprain/strain, lumbar sprain/strain and multiple contusions causally related to the July 6, 1990 fall. These had, within a reasonable degree of medical certainty, resolved by November of 1990. Her ongoing symptoms appear to be partially related to her cervical spondylosis, and the non-organic, psychosomatic findings on examination suggest other factors may responsible [sic] for her ongoing pain syndrome.’ This opinion is further strengthened by similar remarks in the same deposition (pg. 26) which are designed to further explain his closing statement in his report of December 28, 1992.
In my decision of May 27, 1993, I find, inter alia, . . . `that the employee is subject to exaggeration and magnification of her symptoms . . .’ This was a subtle attempt on my part to bring the employee’s credibility into question. Since the written record cannot discern subtleties let me state unequivocally at this time that I do not believe the employee’s testimony relative to her alleged ongoing pain.
(Dec. 4-6.)
The foregoing adequately explains the hearing judge’s reasoning.[3]
We may not substitute our judgment for his. We find no legal error and, therefore, we affirm the July 31, 1997 decision of the hearing judge.
So ordered.
________________________ William A. McCarthy Administrative Law Judge
________________________ Sara Holmes Wilson Administrative Law Judge
________________________ Suzanne E.K. Smith Administrative Law Judge
FILED: October 27, 1998
(1993).