Doe, 021120 KSAGO, 036153-14

Docket Nº:036153-14, 013146-17
Case Date:February 11, 2020
Jane Doe1 Employee
The Walker Home & School for Children Employer
Massachusetts Healthcare SIG Insurer
Department of Transitional Assistance Employer
Commonwealth of Massachusetts Self-Insurer
Nos. 036153-14, 013146-17
Massachusetts Workers Compensation Decisions
Commonwealth of Massachusetts Department of Industrial Accidents
February 11, 2020
         This case was heard by Administrative Judge McNamara.           Michael F. Walsh, Esq., for the employee [2]           Richard N. Curtin, Esq., for the insurer at hearing.           Paul M. Moretti, Esq., for the insurer on appeal.           Daniel P. LePage, Esq., for the self-insurer.           Koziol, Calliotte and Long, Judges.          REVIEWING BOARD DECISION           KOZIOL, J.          In this case of first impression, we discuss the applicable legal standard where an employee, partially incapacitated as a result of a psychiatric sequela of a physical injury at her first employment, returns to work and then alleges a work-related worsening of the psychiatric condition to the point of total incapacity.          The first insurer, Massachusetts Healthcare SIG, (Massachusetts Healthcare), and the employee appeal from a decision finding Massachusetts Healthcare responsible for paying the employee’s medical benefits pursuant to §§ 13 and 30 and denying and dismissing the employee’s claim for incapacity and medical benefits against the second insurer, the Commonwealth of Massachusetts, (Commonwealth). They argue the successive insurer rule applies to this case such that the employee need only prove that her psychiatric condition worsened “to the slightest extent” as a result of the alleged events at her subsequent employment at the Department of Transitional Assistance (DTA). However, the judge’s decision shows that she required the employee to prove that the complained-of events at DTA were the predominant contributing cause of her disability and need for treatment, pursuant to the third sentence of G. L. c. 152, § 1(7A).3 The Commonwealth advances no argument rebutting Massachusetts Healthcare’s assertions that the judge erred by failing to apply the successive insurer rule. We agree that the successive insurer rule should have been applied to resolve this dispute.          Massachusetts Healthcare and the employee also argue that the judge adopted conflicting medical opinions that cannot be reconciled, and that her findings of fact regarding the alleged events at DTA, as well as her credibility determinations, are not specific enough for us to determine whether correct rules of law have been applied. The Commonwealth disagrees on both points. It asserts that the judge’s decision must be affirmed because the judge adopted a medical opinion stating that no injury occurred at DTA, and the judge’s credibility determinations prohibit any finding against the Commonwealth. For the reasons set forth herein, we agree with Massachusetts Healthcare. We vacate the decision and recommit the matter. On recommittal, the judge must: 1) make new findings of fact regarding the medical evidence; 2) make additional findings of fact regarding the underlying facts and her credibility determinations; and, 3) if her findings require it, apply the successive insurer rule.          We summarize the undisputed background facts for contextual purposes. The employee was concurrently employed by the Walker Home & School for Children (Walker Home) and DTA. On October 1, 2014, the employee was sexually assaulted by her supervisor at the Walker Home. She sought medical treatment for her injury and was diagnosed with resultant post-traumatic stress disorder. The employee left work at the Walker Home in April of 2015, but returned to work for DTA in August of 2015. (Dec. 6.) The employee filed a claim against the Walker Home’s insurer, Massachusetts Healthcare, seeking a closed period of § 34 benefits immediately followed by ongoing § 35 partial incapacity benefits, alleging that post-traumatic stress disorder incapacitated her from returning to work at the Walker Home. That claim was the subject of a § 10A conference held before a different administrative judge who ordered Massachusetts Healthcare to pay the employee ongoing partial incapacity benefits commencing on the date of conference, October 20, 2015. Both parties appealed. Pursuant to § 11A, the employee was examined by psychiatrist Dr. Ronald Abramson on January 23, 2016. On August 19, 2016, prior to a hearing, the judge approved the parties’ lump sum settlement agreement wherein Massachusetts Healthcare accepted liability for the injury and the resulting diagnosis of post-traumatic stress disorder.          Meanwhile, the employee continued to work for DTA, eventually ceasing work on March 30, 2017. The employee alleged that, as a result of a series of incidents at DTA, her post-traumatic stress disorder was aggravated, rendering her totally incapacitated from work. She filed the present claims against both insurers. The employee sought payment of medical treatment pursuant to §§ 13 and 30, from Massachusetts Healthcare. She also sought payment of §§ 13 and 30 medical treatment and § 34 temporary total incapacity benefits from March 30, 2017, and continuing, from the Commonwealth. On October 19, 2017, the joined claims were the subject of a § 10A conference held by the original judge. The judge denied the claim against the Commonwealth and ordered Massachusetts Healthcare to pay the employee medical benefits for treatment of her post-traumatic stress disorder, including payment for a prescribed service dog pursuant to §§ 13 and 30. (Dec. 2-3.) Massachusetts Healthcare and the employee appealed. On January 13, 2018, the employee was examined for a second time by Dr. Abramson pursuant to § 11A. Because the original judge retired from the Department, the case was reassigned to the present judge for a de novo hearing.          At the hearing, the...

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