No. 00031896 (1999). EMPLOYEE: Robert Simcik.

Case DateFebruary 17, 1999
CourtMassachusetts
Massachusetts Workers Compensation 1999. No. 00031896 (1999). EMPLOYEE: Robert Simcik COMMONWEALTH OF MASSACHUSETTS DEPARTMENT OF INDUSTRIAL ACCIDENTS EMPLOYEE: Robert Simcik EMPLOYER: M.B.T.A. INSURER: M.B.T.A.BOARD NO(s).: 00031896, 00031996 00032096, 00032196 00032296, 00032396 REVIEWING BOARD DECISION (Judges McCarthy, Wilson and Smith)APPEARANCES William J. Gately, Jr., Esq., for the employee Kerri A. Morrissey, Esq., for the self-insurer MCCARTHY, J. The parties cross-appeal from a decision in which an administrative judge awarded the employee partial incapacity benefits for a fibromyalgia condition. The employee alleged that the disease was causally related to a series of traumas sustained in 1982-1985 while working for the M.B.T.A., a self-insurer. Robert Simcik argues on appeal that the hearing judge erred in setting the amount of weekly benefits, as well as the date for their commencement. We summarily affirm the decision as to the employee's appeal on these issues. The self-insurer on appeal contends that the judge erred by adopting medical opinions of the employee's expert physician and the § 11A examiner, causally connecting the fibromyalgia to Simcik's work. The self-insurer claims that the judge ignored factual discrepancies between the employee's testimony at hearing, and the history which he narrated to the doctors. The self-insurer argues that because of these discrepancies the medical opinions were not competent evidence on which to base an award of benefits, as a matter of law. For the reasons that follow, we recommit the case for the judge to clarify her handling and interpretation of the medical evidence. We otherwise agree with the self-insurer that the judge's application of G.L. c. 152, §§ 35F and 35B was contrary to law. We reverse the decision as to those issues. Mr. Simcik, who worked as a repairman specialist doing electrical and mechanical work on M.B.T.A. trolleys at the Riverside facility, suffered a series of injuries while performing his work duties. The first was in April 1982, when he injured his back attempting to repair a panic raft on one of the trolleys. He was out of work for several months, and received workers' compensation benefits until August 1982. He was released at that time to return to light duty work, but none was available. The employee therefore returned to his regular duty employment. In November 1982, he fell off a ladder and reinjured his back, along with his neck. The employee then had four more work related accidents over the next several years in which he injured his elbow, knee and back. He continued to request light duty, but none was ever available to him. (Dec. 4.) In July/August 1988 Simcik finally obtained a lighter duty job but it did not last and on September 1, 1988, he returned to his usual work at the Riverside facility. On that day, the employee had an argument with his supervisor, which resulted in his discharge pending an arbitration hearing. September 1, 1988 was the last day the employee ever worked for the self-insurer. (Dec. 5.) Mr. Simcik suffers from a variety of medical ailments including diabetes, chronic bronchitis, kidney problems, sleep apnea, irritable bowel syndrome and retinopathy. In 1992, Simcik was diagnosed with fibromyalgia. Some years later he learned that his fibromyalgia might be related to his various work traumas and filed a claim. The employee's alleged symptoms include pain in his feet, legs, arms, wrists, fingers, shoulders, buttocks and back. (Dec. 5.) The self-insurer resisted the claim and a hearing was held on the employee's appeal from the § 10A conference denial of payment. (Dec. 2.) Dr. Peter Schur, the impartial examiner pursuant to § 11A(2), examined the employee on August 27, 1997. Dr. Schur, an internist and rheumatologist, opined that the employee presented a classic case of fibromyalgia, with pain indications in twenty tender points, along with complaints of fatigue, sleep disorders and irritable bowel syndrome. (Dec. 7.) Dr. Schur opined that it was difficult to pin down the causal relationship between the employee's work and his fibromyalgia, because of the length of time separating the traumas of 1982-1985 and his 1997 examination. (Dec. 8.) Nonetheless, Dr. Schur causally connected the employee's work and his fibromyalgia. (Dec. 9.) However, the history which the employee gave the doctor was not consistent with the facts as found by the judge at hearing. The employee informed the doctor that he had...

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