Opinion
BOARD No. 83450486
Filed: June 30, 1995
REVIEWING BOARD:
Judges Wilson, McCarthy, and Fischel.
APPEARANCES:
Osvaldo Torres, pro se, employee.
Gerard A. Pugsley, Esq., for the insurer.
The employee appeals from a decision awarding him a closed period of total incapacity benefits under G.L.c. 152, § 34 and ongoing partial incapacity benefits under § 35. The employee argues, as best we can discern, that the decision is beyond the scope of the judge's authority, or that it is arbitrary or capricious, since there was evidence that the employee's medical condition was worse than the administrative judge found. The employee also raises a number of issues that were not raised and addressed at hearing. Accordingly, those issues are not properly before us and we will not address them on appeal. See Bauman v. Faulkner Hospital, 8 Mass. Workers' Comp. Rep. 238, 239 (1994); Phillips v. Sylvania Electric Products, 8 Mass. Workers' Comp. Rep. 218, 219 (1994) ("As the issue was not raised at hearing, it is waived."). Therefore, we will decide only the issue of the extent of incapacity, which issue was raised and addressed at hearing, and is argued on appeal. We find that the administrative judge's conclusions are grounded in the evidence and therefore affirm his decision.
Issues raised on appeal that were not raised before or addressed by the administrative judge are listed by the employee as follows: "No employer should require an employee to move furniture if it is not on the job description and causes and [sic] injury;" "No employer should deny and [sic] employee a workers compensation form;" and "No employer should fire and [sic] employee without just cause." (Employee's Brief 2). Although the employee also raises the issue of medical benefits under §§ 13 and 30 (Employee's Brief 4), the administrative judge did conclude that, "[t]he medical treatment bills the employee incurred for his work injury were necessary and proper." There is nothing in the record on appeal that indicates to us that there is anything for us to decide regarding this issue.
The employee sustained an injury to his back while moving furniture in the course of his employment on May 16, 1986 (Tr. 8-10). The employee continued to work with pain, but finally had to stop work on July 24, 1986 (Tr. 11-13). The employee brought a claim for weekly total incapacity and medical benefits, which was conferenced on April 13, 1987. The administrative judge ordered payment of weekly total incapacity benefits from July 24, 1986 to April 13, 1987 and continuing, as well as medical benefits. Both parties appealed and the hearing was held on May 11, 1987 (Dec. 1; Tr. 1). Depositions of Dr. Joseph F. Dorsey, the employee's treating physician, and Dr. William L. Kermond, the insurer's examining physician, were taken on March 27, 1989 and April 5, 1989 respectively. Dr. Dorsey testified that he had examined the employee for the first time on August 18, 1987, that the employee was totally disabled at that time, and that his medical disability was causally related to the industrial accident of May 16, 1986 (Dorsey Dep. 6-8). Dr. Dorsey further testified that as of January 6, 1989, his most recent examination of the employee prior to the deposition, the employee was still totally disabled (Dorsey Dep. 11). Dr. Kermond examined the employee for the insurer on October 12, 1987 (Dec. 4). Dr. Kermond testified at his deposition that, based on his findings in that examination, he felt the employee was capable of returning to light duty work (Kermond Dep. 14, 17). Dr. Kermond also found a causal relationship between the employee's physical disability and the industrial accident of May 16, 1986 (Kermond Dep. 16).
In his hearing decision, the administrative judge adopted the opinion of Dr. Kermond, and concluded that the employee had been totally incapacitated from July 24, 1986 until October 12, 1987, the date of Dr. Kermond's examination of the employee. The administrative judge further concluded that the employee was partially incapacitated, with an ability to go back to work at light sedentary and general office work (Dec. 5). Based on these general findings the administrative judge awarded the employee § 34 weekly compensation benefits from July 24, 1986 until October 12, 1987. He assigned an earning capacity of $175.00 per week and ordered § 35 weekly benefits from October 12, 1987 and continuing (Dec. 6). The administrative judge also concluded that the employee's medical treatment had been necessary and proper (Dec. 6).
There is no error. The administrative judge was wholly within the scope of his authority to weigh the conflicting testimonies of Drs. Dorsey and Kermond regarding the extent of the employee's medical disability, determine the probative value of each, and adopt one over the other. See Dotton v. Phalo Plastics Corp., 6 Mass. Workers' Comp. Rep. 31, 32 (1992); Amon's Case, 315 Mass. 210, 214-215 (1943). Moreover, the administrative judge made appropriate subsidiary findings regarding the employee's age, education and vocational background in accordance with Frennier's Case, 318 Mass. 635 (1945) (Dec. 3). Unless the decision of the administrative judge is beyond the scope of his authority, arbitrary or capricious, or contrary to law, the decision will not be reversed. Dotton, supra.
The decision is affirmed.
Judges Fischel and McCarthy concur.