RODRIGUEZ v. PALM MANOR NURSING HOME, No. 02380504 (Apr. 22, 2009)

David Rodriguez, Employee v. Palm Manor Nursing Home, Employer, Liberty Mutual Insurance Co., Insurer.

No. 02380504.Commonwealth of Massachusetts Department of Industrial Accidents
April 22, 2009.

REVIEWING BOARD DECISION

(Judges Horan, Costigan and Fabricant)

The case was heard by Administrative Judge Hernandez.

APPEARANCES

Charles E. Berg, Esq., for the employee at hearing

James N. Ellis, Esq., for the employee on appeal

Joseph J. Durant, Esq., for the insurer at hearing

Jean Shea Budrow, Esq., for the insurer on appeal

HORAN, J.

The employee appeals from a decision awarding him § 34 total incapacity benefits from August 11, 2004 through August 20, 2004, and § 35 partial incapacity benefits from August 21, 2004 through August 24, 2004. We recommit the case.

The facts pertinent to the issue we address are few.[1] After the hearing and the deposition of the § 11A impartial medical examiner, the judge allowed the parties to introduce additional medical evidence concerning the “gap” period between the employee’s accepted work-related injury of August 11, 2004, and the impartial medical examination of September 9, 2005. (Dec. 3.) Our review of the board file[2] indicates the employee submitted voluminous medical records addressing his medical condition during the gap period.[3] The hearing decision does not list or discuss this evidence. Accordingly, we recommit the case for consideration of the employee’s medical evidence. Pelchat v.Demoulas Supermarkets, 23 Mass. Workers’ Comp. Rep. ___ (February 3, 2009), and cases cited.

So ordered.

_________________________ Mark D. Horan Administrative Law Judge

_________________________ Patricia A. Costigan Administrative Law Judge

_________________________ Bernard W. Fabricant Administrative Law Judge

[1] In light of our decision to recommit the case, we do not reach the employee’s remaining appellate issues.

[2] We take judicial notice of the documents in the board file.Rizzo v. M.B.T.A., 16 Mass. Workers’ Comp. Rep. 160, 161 n. 3 (2002).

[3] The employee’s medical evidence, received by the board on May 23, 2006, included the report of Dr. Roger L. Kinnard, and records from the Saints Memorial Medical Center, Dr. Lawrence Johnson, and Dr. Nidhi K. Lal. The insurer submitted the June 21, 2005 report of Dr. John Chaglassian. Only Dr. Chaglassian’s report is listed as an exhibit. (Dec. 1.)