No. 00031896 (1999). EMPLOYEE: Robert Simcik.
Case Date | February 17, 1999 |
Court | Massachusetts |
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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