No. 01316596 (1999). EMPLOYEE: Robert J. Smith.

Case DateJune 24, 1999
CourtMassachusetts
Massachusetts Workers Compensation 1999. No. 01316596 (1999). EMPLOYEE: Robert J. Smith COMMONWEALTH OF MASSACHUSETTS DEPARTMENT OF INDUSTRIAL ACCIDENTS EMPLOYEE: Robert J. Smith EMPLOYER: Kingston Oil and Gas INSURER: Great American Insurance CompanyBOARD NO. 01316596REVIEWING BOARD DECISION (Judges Wilson, McCarthy and Smith)APPEARANCES Juliane Soprano, Esq., for the employee Mary Ann Calnan, Esq., for the insurer WILSON, J. The insurer appeals from a decision in which the administrative judge denied its complaint to modify or discontinue the employee's weekly benefits for total and temporary incapacity, based on her finding that the employee's refusal to undergo cervical disc surgery was not unreasonable. Because there are sufficient findings and evidence to support the judge's conclusion, we affirm the decision. Mr. Smith, forty-five years old at the time of hearing, worked as a boiler technician for this employer for approximately eight years. On March 11, 1996, he injured his neck and low back while lifting a seven hundred pound boiler. The insurer accepted liability, paying weekly benefits pursuant to §34 from the date of injury. (Dec. 2, 3.) The employee initially sought medical treatment with his internist, who performed diagnostic tests and referred him to a neurosurgeon. He also treated with an orthopedic surgeon. He next consulted a second neurosurgeon, Dr. Blume, who ordered extensive diagnostic testing and recommended cervical disc surgery in February 1997. As a result of discussion with the neurosurgeon about surgery and possible complications, the employee became extremely fearful and decided not to undergo the surgical procedure. 1 Although Mr. Smith is in a great deal of discomfort and is highly restricted in his activities, he has had no further medical treatment. (Dec. 3-4.) The insurer filed a complaint to modify or discontinue the employee's benefits. Following a § 10A conference denial of that request, the insurer appealed to a hearing de novo. Pursuant to § 11A of the Act, the employee was examined by Dr. Richard Seibert. He concurred with Dr. Blume's diagnosis and recommendation of surgery on the employee's C5-6 midline disc herniation, which was impinging on his spinal cord. Dr. Seibert opined that, while there was a high probability of surgical success, in the range of ninety to ninety-five percent...

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