Douglas Bell, Employee
Electronic Data Systems, Employer
Ace Property and Casualty Insurance Company, Insurer
No. 035340-08
Massachusetts Workers Compensation Decisions
Commonwealth of Massachusetts Department of Industrial Accidents
September 23, 2019
This
case was heard by Administrative Judge Herlihy.
Bernard J. Mulholland, Esq., for the employee.
W.
Todd Huston, Esq., for the insurer.
Long,
Fabricant and Calliotte, Judges.
REVIEWING BOARD DECISION
LONG,
J..
The
insurer appeals from a decision ordering it to pay § 34A
permanent and total incapacity benefits and reasonable and
necessary medical expenses including but not limited to
reimbursement and continued prescriptions for Topamax and
ibuprofen. (Dec. 10.) The insurer claims the administrative
judge failed to perform the analysis required under M.G.L. c.
152, § 1(7A), and that her subsidiary findings
mischaracterized evidence relative to the employee’s
obesity. The insurer also alleges the administrative
judge’s reliance upon the impartial examiner’s
opinion was reversible error. Although the insurer’s
mischaracterization argument has technical merit, the insurer
failed to fulfill its obligation to produce an appropriate
offer of proof to satisfy its burden of production pursuant
to § 1(7A). Therefore, any error resulting from the
mischaracterization is rendered harmless. Finding no merit in
the insurer’s argument that the judge’s reliance
upon the impartial examiner’s opinion was reversible
error, we affirm the decision.
The
employee was fifty-four years old at the time of hearing. He
completed some college courses but never earned a degree. The
employee primarily worked in the computer industry.
Throughout his career, he learned about computers through the
“hands on” experience of selling them. (Dec.
4-5.)
On
August 8, 2008, the employee was attending a company cookout
when he slipped, with his left foot falling underneath him.
He experienced pain in his left knee and reported the fall to
his manager. The employee continued to work by wearing a
brace and working remotely from home until ankle surgery in
December of 2008. The employer ceased the remote working
arrangement in October 2009 because the employee was not
keeping up. Since the industrial accident, the employee has
had multiple left ankle and knee surgeries. (Dec. 4-5.)
The
insurer accepted liability for the employee’s left knee
and ankle injuries but denied payment of prescriptions for
ibuprofen and Topamax. The employee filed a claim seeking
payment for those medications pursuant to §§ 13 and 30, and
at the § 10A conference held on December 8, 2016, also filed
a motion to join a claim for § 34A, permanent and total
incapacity benefits. A conference order for payment of the
claimed prescriptions was issued but no action was taken on
the motion to join the § 34A claim. The insurer filed a
timely appeal, prompting an impartial examination by Dr.
Jerald Katz, on April 24, 2017.
At the
§ 11 hearing held on August 22, 2017, and November 14,
2017,
[1] the judge found the medical issues
to be complex and allowed the introduction of additional
medical evidence to supplement the impartial medical opinion
of Dr. Katz. The judge also formally allowed the
employee’s motion to join the claim for § 34A benefits
that had been filed at the conference on December 8, 2016.
The insurer argued it would be unfairly prejudiced in
defending a § 34A claim because the only issue in dispute at
the conference was the reimbursement of costs for medication.
The judge disagreed, finding:
On December 8, 2016, employee counsel filed a claim for § 34A
benefits and at hearing moved to join the employee’s
claim for § 34A. The insurer argued it would be unfairly
prejudiced in defending a 34A claim whereas its appeal was
based on the reimbursement of medication. I disagree. I find
the insurer and counsel were aware of the pending 34A claim
in advance of the hearing date(s), had ample time for its own
medical examination and the benefit of deposing the impartial
medical examiner. (Tr. I at 10,11.) I allowed the
employee’s claim based on judicial economy and opened
the medical record.
(Dec. 3.)
As to
defenses, the insurer disputed disability and extent thereof
and denied the employee’s entitlement to §§ 13 and 30
benefits relative to the claimed prescriptions. Following the
employee’s direct testimony on August 22, 2017, the
insurer raised § 1(7A)
[2] for the first time as an additional
defense, citing to the employee’s apparent obesity and
testimony that he...
