Andrea O’Rourke Employee
New York Life Ins. Co. Employer
Pacific Indemnity Ins. c/o Chubb Group of Ins. Cos. Insurer
No. 012706-11
Massachusetts Workers Compensation Decisions
Commonwealth of Massachusetts Department of Industrial Accidents
November 19, 2019
This
case was heard by Administrative Judge Herlihy.
Michael J. Powell, Esq., for the employee at hearing
Thomas
A. Doherty, III, Esq., for the employee on appeal
Edward
M. Moriarty, Jr., Esq., for the insurer
Koziol, Fabricant and Long, Judges.
REVIEWING BOARD DECISION
KOZIOL, J.
This is
the second appeal of this matter to the reviewing board. The
insurer filed the first appeal from a different judge’s
hearing decision awarding the employee §34 benefits from
September 16, 2014, and continuing, as well as §§
13 and 30 medical benefits, including two surgeries and
treatment for anxiety and depression. We vacated the decision
but were unable to recommit the matter for further findings
of fact because the judge had retired from the Department.
Accordingly, we referred the case to the senior judge for
reassignment to another judge for a de novo hearing. During
the interim period, we reinstated the conference order
awarding the employee partial incapacity benefits under
§ 35 from August 1, 2013, based on actual earnings, and
where no earnings exist, requiring the insurer to pay maximum
§ 35 benefits. O’Rourke v. New York Life
Ins., 30 Mass. Workers’ Comp. Rep. 303 (2016).
Thereafter, the matter was assigned to the present judge who
conducted a de novo hearing. The employee now appeals from
that judge’s June 19, 2018, decision denying and
dismissing her claim.
1 (Dec. II, 11.)
On
appeal, the employee alleges the judge’s decision
contains multiple inconsistencies, mischaracterizes the
evidence, and contains other errors that require reversal. We
find merit in one of those arguments. Specifically, the
judge’s findings of fact regarding the medical opinions
of Dr. James Lehrich are internally inconsistent, resulting
in a mischaracterization of his opinion. The error is not
harmless because the judge adopted the mischaracterized
opinion and expressly relied upon it to deny and dismiss the
employee’s claim. As a result, we vacate the decision
in part, and recommit the matter for further findings of
fact.
The
employee, age fifty-one at the time of the most recent
hearing, was employed as a vice president of client
strategy/sponsor experience at the time of her injury. (Dec.
II, 5.) On May 16, 2011, she was exiting the office through a
glass door when a magnet above the door fell on her head.
(Dec. II, 5.) The employee was taken to Norwood Hospital,
where she spent a few hours in the emergency room.
Id. The following day she experienced a headache and
tingling on the left side of her face. “The employee
returned to work in October 2011 performing the same job
until the first surgery on December 4, 2012.” (Dec. II,
9.) On December 4, 2012, neurosurgeon, Dr. Ermand Eskander,
performed “a left microvascular decompression”
for “possible trigeminal neuralgia.” (Dec. II,
6.) In April 2013, Dr. Eskander reported the employee’s
facial pain was gone but she continued to experience
headaches. (Dec. II, 6.)
The
judge made no findings regarding the employee’s return
to work date following the December 4, 2012, surgery. She
found only that “her last day of work was in April
2014.” (Dec. II, 9.) She also found that “on
April 14, 2014 Dr. Eskander reported the employee still has
facial pain and on April 29, 2014 Dr. Eskander performed a
left fluoroscopically guided V2, V3 radiofrequency
rhizotomy.” (Dec. II, 6.) According to the history
recorded in our prior decision, following the surgery on
December 4, 2012, the employee
returned to part-time work on approximately March 13, 2013,
but ‘felt like the back of her head was going to
explode.’ On Dr. Eskandar’s recommendation, she
left work again in April of 2013, and then made another
attempt to return to work in July 2013. She finally stopped
working altogether in March 2014.
O’Rourke, supra at 304-305. We also noted that
the employee “testified that she left work for good in
March 2014. However, she received short-term disability
payments until approximately September 15, 2014.”
Id. at 305 n.1.
On June
18, 2013, the employee filed a claim seeking temporary total
incapacity benefits under § 34 from April 8, 2013,
through April 8, 2016, as well as medical benefits pursuant
to §§ 13 and 30. Rizzo v.
M.B.T.A., 16 Mass. Workers’ Compensation Rep.
160, 161 n.3 (2002)(judicial notice taken of board file). The
insurer denied the employee’s claim contesting
liability, causation and disability. Id. The claim
was then the subject of a § 10A conference before a
different judge than the one who conducted the first hearing.
The parties’ Form 140 Conference Memorandum shows that
by that date, the employee sought only partial incapacity
benefits commencing August 1, 2013, and continuing, as well
as §§ 13 and 30 benefits for “medical bills,
prescriptions, pkg receipts, etc.” Id. On
November 22, 2013, that judge issued a conference order
requiring the insurer to pay the employee “partial
incapacity compensation under M.G.L. c. 152, § 35, based
on the employee’s actual wages from August 1, 2013 and
continuing,” along with § 30 medical benefits
“for claimed conservative treatment including
prescribed MRI study. Payment for claimed surgery is stayed
at this time.” Id. Both parties appealed, and
the case was reassigned to the judge who issued the first
hearing decision.
As
noted above, following the first hearing, the judge ordered
the insurer to pay the employee ongoing incapacity and
medical benefits, and the insurer appealed. We vacated that
decision because the judge erred by, 1) making inconsistent
findings regarding the alleged trigeminal nerve injury, and
causal...