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...
