Garry D. Dolan Employee
Town of Brookline Employer
Town of Brookline Self-Insurer
No. 004837-13
Massachusetts Workers Compensation Decisions
Commonwealth of Massachusetts Department of Industrial Accidents
July 29, 2020
This
case was heard by Administrative Judge Segal.
Paul
S. Danahy, Esq., for the employee
Robert
J. Riccio, Esq., for the self-insurer at hearing
Holly
B. Anderson, Esq., for the self-insurer on appeal
Calliotte, Fabricant and Koziol, Judges.
REVIEWING
BOARD DECISION
CALLIOTTE, J.
The
self-insurer appeals from a decision awarding the employee
§ 34A permanent and total incapacity benefits. Finding
merit in two of the self-insurer’s arguments, we
recommit the case for further findings.
The
employee, an automotive technician with a high school
diploma, injured his right major arm at work on February 21,
2013, while attempting to throw a 150-pound blade into a
recycle pile.
1 (Dec. 4.) The employee was out of work for
about four months, and then attempted to return to regular
duty. However, his right arm “would not handle the
work,” (Dec. 7; Tr. 13), and there were no light duty
positions as a mechanic for the Town. The employee last
worked for the employer in September 2013. (Dec. 8.)
A
September 9, 2013, MRI revealed a “high grade partial
tear of the common flexor tendon, a moderate partial tear of
the common extensor tendon and a mild enlargement of the
ulnar nerve.” (Dec. 5; Exhs. 6.1 and 6.9.) The employee
underwent two surgeries to his right upper extremity,
followed by physical therapy, with little improvement in his
pain. (Dec. 5-6.)
The
self-insurer accepted liability for the employee’s
injury and paid § 34 temporary total incapacity benefits
to exhaustion through December 4, 2016, and maximum § 35
partial incapacity benefits thereafter. (Dec.
3.)
2
On February 6, 2017, the self-insurer filed a complaint to
modify benefits. The employee’s motion to join claims
for § 36 benefits and for § 34A permanent and total
incapacity benefits, beginning on December 5, 2016, was
allowed. A different administrative judge denied both the
complaint and the § 34A claim at conference, but ordered
the self-insurer to pay § 36 benefits in the amount of
$6,052.99. Both parties appealed, and the case was assigned
to the current administrative judge. (Dec. 2.)
At
hearing, the self-insurer raised disability and extent of
incapacity, and causal relationship, seeking modification of
benefits as well as recoupment retroactive to the February 6,
2017, filing of its complaint.
3 (Dec. 2.) Dr. James McGlowan
again examined the employee pursuant to § 11A on June
27, 2017, and submitted addenda on November 15, 2017, and
February 9, 2018.
4 (Exhs. 1.1, 1.2 and 1.3.) The judge found,
“[T]he report and addendum reports of Dr. McGlowan are
adequate. No motions were made by either party with respect
to the Impartial Medical Report or the accompanying Addendum
Reports. The Court, sua sponte, allowed the parties to submit
gap medicals. Gap medicals were timely submitted by both
parties.” (Dec. 3.)
The
judge then adopted Dr. George Whitelaw’s February 9,
2017, opinion that the industrial accident “
‘remains a major contributing cause of [the
Employee’s] current condition, disability, loss of
function and disfigurement.’ ” (Dec. 6, quoting
Exh. 6.1.) She also adopted the opinion of Dr. Richard
Fraser, who opined, on January 5, 2016, that,
“Mr. Dolan is currently disabled from his prior work as
a mechanic and from all but the basic and menial type of
employment. To be gainfully employed, he would require
restrictions of not pulling, pushing, grasping or lifting
more than 5 to 10 pounds keeping his right elbow by his side
and minimizing any repetitive motions with his right arm. He
would not be able to pull, push, grasp or lift more than 5
pounds as well. [These] restrictions are reasonable,
medically necessary and appropriate to avoid an aggravation
of his current condition.”
(Dec. 6, quoting Exh. 6.4.) The judge further adopted Dr.
Fraser’s opinion that the employee had reached a
medical end result, and that any further treatment would be
merely palliative. Finally, the judge adopted the § 11A
opinion of Dr. McGlowan with respect to the employee’s
diagnoses,
5 the causal relationship between the injury
and the diagnoses, and the reasonableness and necessity of
the employee’s medical treatment. (Dec. 6-7.) She did
not adopt or even mention Dr. McGlowan’s opinion on
disability.
6
The
judge credited the employee’s testimony that he is in
constant pain, and anything he does causes his pain to
increase. He does not use his...
