Debra Giaccarini Employee
United Parcel Service Employer
Helmsman Management Service c/o Liberty Mutual Insurance Co. Insurer
No. 016117-15
Massachusetts Workers Compensation Decisions
Commonwealth of Massachusetts Department of Industrial Accidents
August 7, 2019
This
case was heard by Administrative Judge Bean.
Brian
C. Cloherty, Esq., for the employee
Joseph
J. Durant, Esq., for the insurer at hearing
John
J. Canniff, Esq., for the insurer on appeal
Calliotte, Koziol and Long, Judges.
REVIEWING BOARD DECISION
CALLIOTTE, J.
The
insurer appeals from a decision awarding the employee §
34 temporary total incapacity benefits, followed by §
34A permanent and total incapacity benefits. The insurer
argues that the judge made inadequate and inconsistent
findings unsupported by the evidence, and that he failed to
properly address the insurer’s “late
notice” defense. We agree with both arguments, and
recommit the case for further findings.
The
employee, age sixty-two at the time of hearing, is a high
school graduate who began working part-time for the employer
as a sorter in 1989. She transitioned to fulltime employment
in 1998. Her job required “much lifting, overhead work
and squatting.” (Dec. 385.) By 2009, she was
complaining of pain in her back, neck and shoulder. On August
29, 2009, she reported a “repetitive motion”
industrial injury to her back. Id.;
(Employee’s claim form, dated 10/2/09, Board No.
023642-09). She was out of work for a short time, and then
returned against her doctor’s advice because she feared
losing her job.
1 Id. “She worked in constant
pain. She discussed her ongoing pain with her supervisors
every month or two.” Id. at 386. On September
13, 2011, she left work due to “increasing low back
pain and shoulder pain.” (Dec. 386.) Three days later,
she filled out a form stating that she hurt her back trimming
trees in her yard. (Dec. 386; see Exs. 4 and 8.)
Subsequently, she collected short and long-term disability
payments, and then Social Security disability compensation.
(Dec. 386.)
In June
2015, three years and nine months after leaving work, the
employee filed the present claim for benefits, describing her
injury as a “repetitive back strain.” (Dec. 386.)
Rizzo v. M.B.T.A., 16 Mass.
Workers’ Comp. Rep. 160, 161 n.3 (2002). The claim was
denied at a § 10A conference, from which the employee
appealed. (Dec. 385.)
At
hearing, the report and deposition testimony of the §
11A examiner, Dr. Vasu K. Brown, were entered into evidence.
(Dec. 385-386.) However, the parties agreed Dr. Brown’s
report was inadequate, (Dec. 387), and the judge allowed the
submission of additional medical evidence. (Dec. 385, 387.)
Specifically rejecting Dr. Brown’s opinion, the judge
adopted the June 18, 2015, medical opinion of Dr. George
Whitelaw. Finding that Dr. Whitelaw “recorded a history
consistent with the one related above and reviewed the
employee’s medical treatment history,” (Dec.
387), the judge adopted Dr. Whitelaw’s opinion that,
the employee suffers from degenerative disc disease of the
lumbar spine and a compression fracture at L-3; the diagnoses
are causally related to the employee’s work at UPS; she
is permanently and totally disabled; and, her work injuries
are a major cause of that disability. (Dec. 387.)
The
judge concluded:
[T]he employee suffered an industrial injury to her low back
over the course of the many months before September 2011 due
to the heavy and repetitive nature of her work at UPS. This
repetitive work was and is a major cause of her disability
and need for treatment. However, I acknowledge that there are
a number of factors that impact the employee’s ability
to work. There are likely some residual effects of her 1980
car accident that injured her neck and shoulder. In the days
before leaving work for the final time she suffered an injury
from a fall at home while trimming a tree. Each of these
events
...
