No. 01316596 (1999). EMPLOYEE: Robert J. Smith.
Case Date | June 24, 1999 |
Court | Massachusetts |
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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