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15-P-112 Appeals Court
DANIEL WILSON'S CASE.
No. 15-P-112.
Suffolk. March 22, 2016. - May 16, 2016.
Present: Cypher, Wolohojian, & Carhart, JJ.
Workers' Compensation Act, Injuries to which act applies,
Decision of Industrial Accident Reviewing Board, Findings
by administrative judge, Expert opinion.
Appeal from a decision of the Industrial Accident Reviewing
Board.
Sean M. Beagan for the employee.
John J. Canniff, III, for the insurer.
CYPHER, J. Daniel Wilson appeals from a decision of the
reviewing board (board) of the Department of Industrial
Accidents (DIA), which reversed a decision of the administrative
judge in favor of Wilson, and dismissed his claim. We reverse
the dismissal of the claim and reinstate the decision of the
administrative judge in favor of Wilson.
2
Wilson worked as a heavy equipment mechanic for Southworth
Milton in 2006 when he was injured while repairing a hydraulic
pump in a truck. Wilson was on his stomach, lying across the
transmission of the truck with both arms fully extended in front
of him. While using a pry bar in an attempt to skirt the weight
on the back of the ninety-pound pump, he felt a stabbing pain in
his neck, upper back, and both shoulders. Approximately nine
days later Wilson was treated with a cortisone shot. Wilson
testified that at that time his left shoulder felt tender,
although his right shoulder was much worse.
In September, 2007, surgery was performed on Wilson's right
shoulder. Wilson returned to work five and one-half weeks after
his surgery and, as advised by his surgeon, Dr. Peter Noordsij,
relied more on his left arm to compensate for lack of use of his
right arm. Wilson's left shoulder pain increased.
Wilson filed a claim for worker's compensation. Sentry
Insurance Company (Sentry) settled the claim in 2008 with an
approved lump sum payment of $2,500 to Wilson and an award of
$5,000 for attorney's fees to Wilson's attorney.1 See G. L.
1
Before entering into the lump sum agreement, Sentry
required that Wilson sign an earnings report. Sentry's attorney
did not disclose to Wilson that Sentry had information that
Wilson had been working and earning wages while receiving
worker's compensation benefits. Once Wilson signed the earnings
report, Sentry immediately threatened to charge Wilson with
insurance fraud if he did not settle his case for $2,500. His
employer reported him for insurance fraud, and he was prosecuted
3
c. 152, §§ 19, 23. The 2008 settlement agreement specified that
it covered injuries to Wilson's right shoulder, neck, and upper
back.
Wilson continued to suffer bilateral shoulder pain after
the lump sum award but was unable to obtain medical benefits.
In 2011, Wilson filed a claim for payment of medical benefits
for treatment of his left shoulder, as well as his right
shoulder, from the 2006 industrial accident. Sentry disputed
Wilson's claim, and Dr. Ralph Wolf, an impartial medical
examiner2 (IME), was appointed to examine Wilson. Dr. Wolf
provided a written report indicating that Wilson's left shoulder
injury "was secondary" to the industrial accident and noting
that "the patient did not report left shoulder pain . . . until
one year post injury." In his deposition, Dr. Wolf testified
that his opinion was based on the history provided by Wilson.
In his deposition on cross-examination Dr. Wolf testified that:
"The patient, if I understood correctly, felt he had
no other explanation for his shoulder pain on either side,
except the 2006 work injury. The reason I ended the
paragraph the way I did was that it’s unusual for [someone]
not to report, or for someone not to have noticed that
there was pain in the opposite shoulder within a few days
of the 2006 injury. In fact, that it was 2007 before he
mentioned to me about this, it makes you think that maybe
the left shoulder had evolved from some other source."
and found guilty by a jury. The conduct of Sentry's attorney
and the validity of the lump sum agreement is not before us.
2
Dr. Wolf was also the IME in Wilson's original claim.
4
Wilson testified at the hearing before the administrative
judge that, at the time of the accident, he had pain in both
shoulders, but that the pain in his right shoulder was worse
than the left shoulder and that, as time went on, the pain in
his left shoulder began to increase. In addition, the
administrative judge had before him ten exhibits (including the
Sentry nurse manager note), Dr. Wolf's written opinion, and
depositions of Dr. Wolfe and Dr. Noordsij. The administrative
judge stated in his findings that he relied on the credible
testimony of Wilson and the persuasive medical opinions of Dr.
Wolf.
The administrative judge found that Wilson's left shoulder
injury was causally related to the industrial accident in 2006
and ordered Sentry to pay all reasonable and necessary medical
expenses. See G. L. c. 119, §§ 13, 30. In making findings, the
administrative judge may give decisive weight to the credible
testimony of the employee and also may weigh any separate
medical evidence. See Dalbec's Case, 69 Mass. App. Ct. 306,
314-315 (2007). "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 board's decision
fails to recognize that credibility findings made by the
administrative judge "are to be considered final by both the
5
reviewing board and an appellate court." Carpenter's Case, 456
Mass. 436, 441 (2010).
We review the board's decision in accordance with the
standards set forth in G. L. c. 30A, § 14(7), governing appeals
from final administrative agency decisions, but "we do not
review whether the board's decision was supported by substantial
evidence." Wadsworth's Case, 461 Mass. 675, 679 (2012). See G.
L. c. 152, § 12(2). We may reverse or modify the board's
decision where it is based on an error of law, or is arbitrary,
capricious, or otherwise not in accordance with law. See G. L.
c. 30A, § 14(7)(c),(g). Similarly, the board may reverse the
decision of an administrative judge only where it is "beyond the
scope of his authority, arbitrary or capricious, or contrary to
law." G. L. c. 152, § 11C, as amended by St. 1991, c. 398, §
31. See Hick's Case, 62 Mass. App. Ct. 755, 763 (2005). Thus,
where the board reverses an administrative judge's decision
based on a finding of fact, we must determine "whether the board
was arbitrary or capricious in concluding that the
administrative judge was arbitrary or capricious." Wadsworth's
Case, supra at 679.
The board concluded that Dr. Wolf provided two
irreconcilable opinions and that the administrative judge
mischaracterized his medical opinion. According to Sentry, the
board was correct because the administrative judge cannot select
6
which of the testimony to credit. The problem for Sentry,
however, is that Dr. Wolf did not provide two irreconcilable
opinions. Although Dr. Wolf expressed uncertainty in light of
the length of time that he believed had passed between the
initial injury and the claim for injury to Wilson's left
shoulder, such concern does not create two contradictory
opinions. Furthermore, it is clear from Dr. Wolf's testimony
that he did not realize that Wilson had, in fact, complained of
left shoulder pain at his first contact with the nurse
practitioner, and that this complaint was documented. When the
doctor's testimony is read as a whole and in context with the
other evidence there is no contradiction.
The board's focus on the fact that Dr. Wolf testified in
his deposition that what he believed to be a delay in reporting
the left shoulder injury caused him some concern does not change
what Dr. Wolf ultimately set forth in his written report. The
testimony of a medical expert should be considered as a whole.
See Duggan's Case, 315 Mass. 355, 358 (1944). See also Nason,
Koziol, & Wall, Workers' Compensation § 17.24 (3d ed. 2003).
The board also ignores Wilson's testimony and,
significantly, the August 26, 2006, record entry of the nurse
case manager, Mara Carofaniello, who noted that Wilson was
complaining of bilateral shoulder pain in the days following the
accident, as well as the subsequent references to left shoulder
7
pain in both Wilson's physical therapy notes in September, 2007,
and in the records of Wilson's orthopedic surgeon, Dr. Noordsij,
in June, 2008.3 There is no requirement that the causal
connection be shown by expert testimony alone. See McAuliffe v.
Metcalfe, 289 Mass. 67, 69 (1935).
The administrative judge acted within his discretion when
he found that a causal relationship existed between the
industrial accident and Wilson's left shoulder injury, where he
found Wilson to be credible in his testimony as to the nature
and cause of his left shoulder injury. In addition, Dr. Wolf,
the IME, testified that he had based his opinion as to causal
relationship in his written report on the history provided by
Wilson. An employee is not required to exclude all other
possible causes, and recognition by the IME of the possibility
of other causes does not destroy the probative force of his
testimony. See Blanchard's Case, 277 Mass. 413, 415 (1931).
See generally Nason, Koziol, & Wall, Workers' Compensation
§ 17.24 & n.2 (3d ed. 2003).
Decision of reviewing board
reversed.
3
On June 17, 2008, Dr. Noordsij noted that Wilson
complained of "left shoulder pain."