O’Rourke, 111919 MAWC, 012706-11

Case DateNovember 19, 2019
CourtMassachusetts
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...

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