John R. Gravallese Employee
General Electric Aviation Co. Employer
Electric Insurance Company Insurer
Board No. 020557-16
Massachusetts Workers Compensation Decisions
Commonwealth of Massachusetts Department of Industrial Accidents
March 23, 2020
REVIEWING
BOARD DECISION
Long,
Fabricant and Calliotte, Judges.
This
case was heard by Administrative Judge Bean.
Sean
Flaherty, Esq., for the employee at hearing and on appeal
Griffin F. Hanrahan, Esq., for the employee on appeal
Thomas
P. O’Reilly, Esq., for the insurer at hearing
Paul
M. Moretti, Esq., for the insurer on appeal
LONG,
J.
This
appeal is from a decision ordering the insurer to pay §
34A permanent and total incapacity benefits from April 11,
2017, to present and continuing and medical benefits pursuant
to §§13 and 30. The insurer alleges the
administrative judge mischaracterized medical evidence,
failed to conduct a proper vocational analysis, erred by
denying the insurer’s motion to strike the § 11A
report of Dr. Frank Graf, and deprived the insurer of due
process by not ruling on that motion prior to the filing of
the decision. We affirm the decision as to all issues on
appeal.
The
employee’s claim for § 34A permanent and total
incapacity benefits was the subject of a hearing on July 10,
2018.
1 At hearing, the parties stipulated as to
employment, an average weekly wage of $1,900.00, the
occurrence of an industrial injury on June 20, 2016, and a
previous industrial injury occurring on April 26, 2007,
resulting in a cervical spinal fusion surgery. (Tr. 3-6; Dec.
512.) The employee was examined pursuant to § 11A by Dr.
Frank Graf on April 11, 2017, as part of prior litigation,
and was examined again by Dr. Graf on April 10, 2018, as part
of the current litigation. The parties agreed that the
medical issues were complex and additional medical evidence
was allowed by the judge.
2 The parties also agreed upon the
additional medical records to be admitted, and that no
depositions would be required. (Tr. 34-35.) The employee
submitted notes and reports of treating orthopedic surgeon,
Dr. Michael Ackland, notes from Boston Pain Specialists, MRI
reports, and a report authored by Dr. George Whitelaw. The
insurer’s additional medical evidence consisted of
reports authored by its expert, Dr. Michael DiTullio, dated
October 17, 2016, and August 11, 2017, and a report of Dr.
Mary Ezzo dated September 21, 2017. The employee was the only
witness to testify at the hearing. (Dec. 512-513.)
In the
hearing decision, the administrative judge relied upon the
credible testimony of the employee, and the persuasive
medical opinions of Doctors Graf and Ackland, and found the
employee to be permanently and totally disabled. The judge
rejected the opinions of the insurer’s expert, Dr.
DiTullio, and found as follows:
Dr. DiTullio wrote confusing reports.…[I]n his long
and dependent clause ridden sentence near the end of his
report that is quoted above, he wrote that the
“underlying disease process” was not
“causally related to any of (the employee’s) work
activities of June 2016” without any discussion of what
effect, if any, the employee’s industrial injuries of
2007 and 2016 had on the “underlying disease
process”. He does not appear to expressly answer the
question of --- was this underlying disease process caused,
influenced or exacerbated by the industrial accidents of 2007
and 2016? I do not find Dr. DiTullio to be persuasive.
(Dec. 515.)
The
insurer’s first argument contends that the judge
mischaracterized Dr. DiTullio’s opinions since “a
full reading of Dr. DiTullio’s report provides an
easily understood opinion that does address the items raised
by the judge.” (Insurer br. 15.) We find no error in
the judge’s rejection and characterization of Dr.
DiTullio’s reports and opinions as
“confusing” since Dr. DiTullio specifically
refutes that a work injury even occurred on June 20, 2016,
despite the insurer’s acceptance of liability for the
injury. In his August 11, 2017, report
[3] Dr. DiTullio
states, in pertinent part:
Although he had an exacerbation of his symptomatic complaints
in June of 2016, I am still unable to find or document
any records, which serve to verify that this was a
work-related episode. I do still believe this opinion is
consistent
...
