Darren M. Desisto Employee
City of Boston Employer
City of Boston Self-Insurer
No. 014569-15
Massachusetts Workers Compensation Decisions
Commonwealth of Massachusetts Department of Industrial Accidents
October 22, 2019
This
case was heard by Administrative Judge Fitzgerald.
Seth
J. Elin, Esq., for the employee
Ryan
R. Keough, Esq., for the self-insurer
Koziol, Calliotte and Long, Judges.
REVIEWING BOARD DECISION
KOZIOL, J.
The
self-insurer appeals from a hearing decision ordering it to
pay the employee § 34 benefits at a rate of $494.51 per
week, based on an average weekly wage of $824.19, from his
date of injury, June 8, 2015, through the exhaustion of those
benefits, followed immediately thereafter by payment of
ongoing § 35 benefits at a rate of $230.51 per week
based on a minimum wage earning capacity of $440.00. The
self-insurer raises three issues that it asserts require
either reversal of the decision or an order vacating the
decision and recommitting the matter for further findings of
fact. We affirm the judge’s decision in part and
reverse only so much of the decision as ordered the
self-insurer to pay the employee § 50 interest.
To
provide background for our discussion of the
self-insurer’s first argument on appeal, we recite the
undisputed part of the record. The employee, age 51 at the
time of the hearing, worked for the self-insurer as a
mechanical equipment operator and public works laborer from
November of 2014 through his date of injury, June 8, 2015.
(Dec. 5.) His job duties “included filling potholes,
driving a trash truck and emptying trash barrels at different
stops. He also performed snow removal.” (Dec. 5.) On
June 8, 2015, the employee was struck by a vehicle while
attending CDL school as required by his job. (Dec. 6.) The
vehicle struck the employee’s right forearm, and may
have also struck his right knee; nonetheless, on impact, the
employee’s body twisted and turned, resulting in him
twisting his right knee. (Dec. 6.) That same day, the
employee went to the Faulkner Hospital where he was diagnosed
as having sustained a contusion of the right wrist and strain
of the right knee as a result of being struck by the vehicle.
(Dec. 8.) The employee did not return to work after the
accident, and on June 12, 2015, he sought treatment from Dr.
Michael Mason for his right knee pain. Dr. Mason treated the
employee for a prior workers’ compensation injury, but
he “noted that the [right] ‘lateral knee pain is
new.’ ” (Dec. 8.) The employee’s pain in
the right knee worsened, and by July 9, 2015, Dr. Mason
recommended an MRI of the right knee. (Dec. 8.)
On July
22, 2015, the employee filed a claim for weekly
workers’ compensation benefits and medical treatment
seeking benefits for injuries to his right knee and right
wrist, sustained as a result of the accident on June 8, 2015.
Rizzo v. M.B.T.A., 16 Mass. Workers’
Compensation Rep. 160, 161 n.3 (2002)(judicial notice taken
of board file). On October 20, 2015, the claim was the
subject of a § 10A conference before a different
administrative judge. Box 10 of the parties’ Form 140
Conference Memorandum listed the “Nature and Cause of
Injury” as “Employee was a pedestrian struck by a
passing car in a MVA. Injured right wrist and right
knee.” Rizzo, supra. The employee
sought § 34 benefits from July 24, 2015,[1] and continuing,
as well as “13 & 30 (right knee MRI).”
Id. On October 21, 2015, the judge ordered the
self-insurer to pay the employee § 34 benefits for the
time period requested, as well as “Section 30 benefits
to include payment for a right knee MRI.” (Dec. 2-3.)
Both parties appealed, and on January 19, 2016, the employee
was examined pursuant to § 11A(2), by Dr. George P.
Whitelaw. Thereafter, the matter was assigned to the present
judge for a de novo hearing because the judge who presided
over the conference had retired.
Prior
to the hearing, the self-insurer filed a motion to open the
medical evidence, stating the impartial examiner’s
report was inadequate because Dr. Whitelaw “opined
‘the right wrist [h]as gone on to heal without any
consequences . . . [the employee] does need to have the MRI
done of the right knee to give an evaluation as to what can
be done for treatment and what his prolonged disability will
be.” Furthermore, the self-insurer maintained that the
employee had the MRI on March 30, 2016, but Dr. Whitelaw had
not had an opportunity to review it prior to the examination.
Rizzo, supra. The judge’s endorsement
on that motion states, “motion allowed due to
inadequacy & complexity. 3/1/17.” Id.
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