Opinion
BOARD No. 06481689
Filed: March 6, 1996
REVIEWING BOARD DECISION
(Judges Kirby, Smith and Maze-Rothstein)
APPEARANCES
Stephen J. Kehoe, Esq., for the employee
David W. Perry, Esq., for the insurer
This is an appeal by the employee, who argues that the judge erroneously dismissed his initial claim for weekly incapacity benefits under § 34, medical benefits under § 30, and dependency benefits under § 35A. The employee argues also that the judge erred by failing to award an attorney's fee under § 13A. We agree that the judge's disposition of the medical benefits portion of the employee's claim was arbitrary and capricious, and therefore vacate and remand the case for further proceedings on the question of the reasonableness of the employee's medical treatment. We otherwise affirm the decision.
On November 25, 1989, the employee slipped and fell while working as a dishwasher, injuring his back and left shoulder. He started treatment with Dr. John Greenler, an orthopedic surgeon, who diagnosed a contusion and sprain of the lumbosacral spine and left shoulder. (Dec. 6; Employee's Ex. 5.) Dr. Greenler's treatment consisted mainly of physical therapy, which the employee underwent two to three times per week from December 1989 to April 1991. Dr. Greenler opined that the employee was capable of performing a light duty job from the time of his earliest examination of the employee in December 1989. (Dec. 6-7, 15-16; Greenler Depo. 28.)
The employee filed a claim for workers' compensation benefits, which the insurer rejected. A conference was held on November 29, 1990. As a result of the conference, an order was issued ordering the insurer to pay the employee temporary total incapacity benefits from the date of injury, November 26, 1989, until March 5, 1990, plus medical benefits. Both parties appealed to a hearing de novo.
At hearing the employee testified, as did the employer's corporate director for loss control and prevention, Mr. Keith Mills, for the insurer. Dr. Greenler testified by deposition. The insurer raised the issues of "[d]isability and extent thereof, causal relationship, Sections 13 and 30 as being excessive, and Section 14, Subsections (1) and (2) as the insurer alleges the employee was active in his own business while claiming and receiving Section 34 benefits . . ." (Tr. 3.) The insurer attempted to add a claim for penalties under § 14, but the judge denied such joinder as it had not been presented at conference. The insurer did not dispute the occurrence of an industrial accident. (Dec. 2, 19.)
At the time of his industrial accident, the employee was also operating his own business designing and making signs. The employee did not claim inclusion in his average weekly wage any concurrent income from this business. His stipulated average weekly wage of $192.00 was based on his dishwashing job. (Dec. 2, 7.) The employee testified that he had performed no work in his sign business after his industrial accident. (Dec. 7-9.)
The insurer's witness, Mr. Mills, investigated the employee during the course of his claimed incapacity, commencing in December 1989. At that time, Mr. Mills went to the employee's sign store, and identified himself as a customer who wanted to have two signs made. The employee negotiated with Mr. Mills through an interpreter, quoted prices for the signs, drew a sketch of one sign, and stated that he would be making the sign himself. Later that month, Mr. Mills picked up that sign and paid $20.00 for it. In January and May 1990, Mr. Mills observed the employee at his sign store, and carrying a 3 foot by 3 foot piece of plywood from his van to his home. (Dec. 11-14.) The employee did not inform Dr. Greenler of his work activities at his sign store. (Dec. 17; Greenler Depo. 32.)
The judge adopted the opinion of Dr. Greenler and found that the employee was capable of light duty employment as of the date of his industrial accident. The judge credited the testimony of the insurer's investigator, Mr. Mills, regarding the employee's work activities and discredited the employee's testimony. As a result, the judge concluded that the employee was capable of earning an amount equal to his pre-injury average weekly wage of $192.00. The judge further concluded that the employee's medical treatment, in particular his physical therapy treatments, had been "excessive as related to the diagnosed condition of his sprained back." (Dec. 18.) The judge also denied the employee's claim for dependency benefits under § 35A, and ordered that the employee's claim be dismissed. (Dec. 18-19.)
The judge should not have dismissed the claim in toto. The insurer accepted liability for the industrial injury in 1989 at hearing. The judge does acknowledge that the employee suffered an industrial accident. This is supported by the insurer's acceptance of liability. (Dec. 6, 18.) SeeCubellis v. Mozzarella House, 9 Mass. Workers' Comp. Rep 354, 355 (1995).
The judge's conclusion that the employee's medical treatment had been excessive, however, does not justify simply dismissing his claim for benefits under § 30. To do so is arbitrary and capricious where there is an accepted industrial accident. "[T]he insurer . . . has the affirmative duty to furnish an injured employee 'adequate and reasonable medical and hospital services, and medicines if needed, together with the expenses necessarily incidental to such services.'" Klapac's Case 355 Mass. 46, 49 (1968), citing G.L.c. 152, § 30. "[D]enial of a claim for continuing weekly benefits for incapacity [as in the instant case] does not relieve the insurer of the obligation to pay medical expenses that are reasonable and related to an industrial injury." Nelson v. Westinghouse Elevator Co., 8 Mass. Workers' Comp. Rep. 420, 421 (1994). The judge's finding, that the employee's medical treatment was "excessive," could be read to assume as a matter of logic that at least some of his treatment was "reasonable." Because the judge did not make clear whether some treatment for this accepted back and shoulder sprain was reasonable and related to the industrial injury, or whether none was or alternatively that no treatment was reasonable and necessary, we must vacate her findings related to § 30 medical benefits and remand the case for the appropriate determination of that issue.
We affirm the judge's denial of employee's claim for weekly incapacity benefits as it is based on her subsidiary findings, which in turn, are grounded in the evidence. The judge found that the employee's testimony had many inconsistencies and lacked credibility and we will not look behind her credibility findings. Brandao v. Joseph Pollack Corp., 9 Mass. Workers' Comp. Rep. 74, 75 (1995); G.L.c. 152, § 11C. Because the judge ordered no weekly incapacity benefits to be paid, the employee's claim for § 35A benefits is nullified.
General Laws c. 152, § 35A provides, in pertinent part:
Where the injured employee has persons conclusively presumed to be dependent upon him or in fact so dependent, the sum of six dollars shall be added to the weekly compensation payable under sections thirty-four, thirty-four A and thirty-five. . . .
(Emphasis added.)
Likewise there was no error in the judge's failure to award the employee an attorney's fee under § 13A. G.L.c. 152, § 13A(5) states, in relevant part, that,
Whenever an insurer . . . contests a claim for benefits and . . . the employee prevails at [the] hearing the insurer shall pay a fee to the employee's attorney . . . . (Emphasis added.)
We have construed "prevails," for the purposes of § 13(5), to mean that "compensation is ordered or is not discontinued." Pagnani v.DeMoulas/Marketbaskets, 9 Mass. Workers' Comp. Rep. 4, 5 (1995). In the instant case, the insurer contested the employee's claim by appealing the judge's conference order of a closed period of § 34 benefits along with medical benefits. At hearing, no compensation was ordered. In fact, the employee's § 34 benefits awarded at conference were discontinued retroactively. Further, the judge awarded no compensation in the form of medical benefits under § 30, finding the employee's treatment to have been excessive. See Boardman's Case, 365 Mass. 185 (1974) (medical benefits are "compensation" within the meaning of the Act). Therefore, the employee did not prevail and no fee is due to the employee's attorney.
We note that G.L.c. 152, § 11D(3) (St. 1991, c. 398, § 32), which authorizes the insurer to recoup overpayments under circumstances as in this case, is deemed procedural in character. See St. 1991, c. 398, § 107.
If on remand, the employee proves that some amount of his medical treatment was reasonable and related to his accepted industrial injury, an attorney's fee under § 13(5) will become due since the employee will have prevailed on that aspect of his claim.
Accordingly, we vacate the decision in part, and remand the case for further proceedings related to the reasonableness of medical treatment for his back and shoulder contusions and sprains. As the hearing judge no longer serves in the department, we forward the case to the senior judge for assignment to a different judge for hearing de novo on that claim for medical benefits under § 30. The decision is affirmed in all other respects.
So ordered.
_________________________ Edward P. Kirby Administrative Law Judge
_________________________ Suzanne E.K. Smith Administrative Law Judge
_________________________ Susan Maze-Rothstein Administrative Law Judge
Filed: March 6, 1996