Opinion
14-P-776
08-19-2015
JOSEPH F. DRISCOLL'S CASE.
NOTICE: Summary decisions issued by the Appeals Court pursuant to its rule 1:28, as amended by 73 Mass. App. Ct. 1001 (2009), are primarily directed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, such decisions are not circulated to the entire court and, therefore, represent only the views of the panel that decided the case. A summary decision pursuant to rule 1:28 issued after February 25, 2008, may be cited for its persuasive value but, because of the limitations noted above, not as binding precedent. See Chace v. Curran, 71 Mass. App. Ct. 258, 260 n.4 (2008).
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
This claim originates with the employee's allegation that he suffered a work-related back injury on July 21, 2003. The town of Framingham, a self-insurer, paid the employee weekly incapacity benefits on a without prejudice basis from July 22, 2003, through September 26, 2003. The employee filed a claim seeking ongoing benefits, which the self-insurer denied. An administrative judge of the Department of Industrial Accidents then denied the claim at conference and the employee appealed. Pursuant to G. L. c. 152, § 11A, several doctors, including an impartial medical examiner (IME), Dr. Basta, and the employee provided testimony at a hearing. The administrative judge awarded G. L. c. 152, § 30, medical benefits and G. L. c. 152, § 34, total incapacity benefits from July 22, 2003, through April 1, 2004, adopting the IME's opinion that the period of causally-related symptoms and disability was finite and would have ended at least by April 2, 2004. The Department of Industrial Accidents reviewing board (board) affirmed the decision of the administrative judge pursuant to G. L. c. 152, § 11C. The employee appeals. We affirm.
Discussion. "[T]he 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." Kelly's Case, 78 Mass. App. Ct. 907, 908-909 (2011) (citations omitted). We conduct a limited review of the board's decision. See id. at 909. The aggrieved party may seek judicial review of the board's decision under G. L. c. 152, § 12(2), and we review the board's decision in accordance with the standards expressed in G. L. c. 30A, § 14(7)(a)-(d), (f), and (g). Carpenter's Case, 456 Mass. 436, 439 (2010). Those standards permit us to modify or reverse the decision under certain circumstances including, as the employee argues, where the administrative judge's decision was arbitrary and capricious, the administrative judge erred as a matter of law or abused his or her discretion, or the decision was unsupported by the facts in evidence. See ibid.
The employee first argues that the decision was arbitrary and capricious and the administrative judge erred as a matter of law by excluding the employee's prior work-related injuries from the analysis of causation. However, the decision to limit the employee's benefits was not based on causation. The administrative judge found that the employee had a causally related disability but that it was finite and ended by April 2, 2004. We cannot say that the board erred in determining that the employee failed to prove continuing incapacitation from the accident. See Patterson v. Liberty Mut. Ins. Co., 48 Mass. App. Ct. 586, 592 (2000), and cases cited.
Next, the employee argues that the administrative judge should not have credited some medical opinions and ignored others. We disagree. An administrative judge has the authority to determine the credibility of each doctor as well as the facts relied on for testimony. See Dube's Case, 70 Mass. App. Ct. 121, 128 (2007). "Such credibility determinations are within the sole province of an administrative judge and are to be considered final by both the reviewing board and an appellate court." Carpenter's Case, 456 Mass. at 441. Thus, because the administrative judge discredited the employee's testimony and found that he misrepresented his activity post injury, we reject the employee's arguments. Moreover, we agree with the board that even though the administrative judge misconstrued Dr. Pedlow's opinion, Dr. Basta's assessment that the employee only suffered a back strain makes the employee's claim for continuing incapacity benefits dependent on whether the administrative judge credited his complaints of pain and limitations associated with the injury. As the board stated,
The administrative judge wrote that Dr. Pedlow had "opined that the [employee's] physical exam results were not entirely inconsistent with degenerative disc disease as the sole cause of the employee's symptoms as the back pain was diffuse and aggravated by hip maneuvers" (emphasis added), rather than what Dr. Pedlow actually opined, that "[the employee's] physical examination is certainly not entirely consistent with degenerative disc disease . . ." (emphasis added).
"Here, it is abundantly clear the [administrative] judge 1) discredited the employee's testimony respecting his ongoing pain and physical limitations, and 2) found the employee had consistently misrepresented his activity level post injury. . . . Accordingly, the [administrative] judge was free to reject any medical opinion premised on the employee's subjective complaints. Brommage's Case, 75 Mass. App. Ct. 825 (2009).""[T]he IME's report is not entitled to any weight unless the fact finder believes the facts on which the report is based." Brommage's Case, 75 Mass. App. Ct. at 828. We cannot conclude that the administrative judge erred in relying on some medical opinions and discounting others.
The fact finder weighs the probative value of the expert testimony. See Carpenter's Case, 456 Mass. at 441. The judge found that
"I was not able to credit Mr. Driscoll's testimony describing his symptoms and his activities and found him unreliable as to what happened or what he experienced in the years after the injury. . . . [T]he misrepresentations the employee made to all these physicians cause me to be unable to rely upon their medical opinions that found him disabled based, at least in part, upon those employee misrepresentations about what he was able to do."
Further, the employee argues that the board's decision was arbitrary and capricious because it was not supported by the facts in evidence. The decision, however, is based on testimony from Dr. Pedlow and Dr. Basta, in conjunction with the board's conclusion that the administrative judge based much of his decision on his disbelief of the employee, resulting in the discounting of much of his testimony. The employee asserts further error by the administrative judge for relying on Dr. Basta's testimony because it was merely speculative. The board determined otherwise and stated that
"Dr. Basta could reasonably rely on his review of the employee's medical records, his examination of the employee, the employee's work activities post injury, and the reports of other qualified physicians to conclude the employee's disability from a work-related back strain lasted, at most, sixteen weeks from the date of injury."Here, the administrative judge credited Dr. Basta's testimony, and we do not disturb that credibility determination. See Coggin v. Massachusetts Parole Bd., 42 Mass. App. Ct. 584, 589 (1997), citing Fitzgibbons's Case, 374 Mass. 633, 636 (1978). Moreover, the board did not err in concluding that Dr. Basta's opinion was not speculative and was based on an adequate foundation.
Finally, the employee asserts that the administrative judge's opinion, adopted by the board, is not supported by the evidence because the administrative judge misconstrued his attempts to return to work as indicating that his disability had ended. We disagree because, as noted earlier, the denial of ongoing benefits was based not only on the administrative judge's disbelief of the employee's testimony, but also on the proof of his employment during times for which he reported to doctors that he was not working.
Decision of reviewing board affirmed.
By the Court (Katzmann, Meade & Rubin, JJ.),
The panelists are listed in order of seniority. --------
Clerk Entered: August 19, 2015.