No. 02670099 (2003). EMPLOYEE: Timothy Donegan.

• Case Date: October 07, 2003
• Court: Massachusetts

Massachusetts Workers Compensation 2003. No. 02670099 (2003). EMPLOYEE: Timothy Donegan COMMONWEALTH OF MASSACHUSETTS DEPARTMENT OF INDUSTRIAL ACCIDENTS EMPLOYEE: Timothy Donegan EMPLOYER: Eastern Tool and Stamping INSURER: Arrow Mutual InsuranceBOARD NO. 02670099REVIEWING BOARD DECISION (Judges Levine, Maze-Rothstein and Carroll)APPEARANCES Alan S. Pierce, Esq., for the employee John A. Morrissey, Esq., for the insurer LEVINE, J. The insurer appeals an administrative judge's decision awarding ongoing incapacity benefits for a June 30, 1999 industrial injury. The insurer contends that the judge erroneously adopted the employee's medical evidence over that of the G. L. c. 152, § 11A, physician. The employee appeals the decision on the basis that the judge's award of § 35 partial incapacity benefits as of the exhaustion of § 34 total incapacity benefits was outside the scope of his authority. We affirm the decision. The employee injured his back when he slipped and fell at work. (Dec. 5.) The insurer accepted the injury. (Dec. 3.) On October 24, 1999, the employee underwent microsurgical disc excision at L4-L5. (Dec. 6.) In August 2000, the insurer brought a complaint to modify or discontinue compensation. It contested disability, extent of incapacity and causal relationship. (Dec. 3.) On January 31, 2001, Dr. John Ritter performed a § 11A impartial medical examination. He opined that the employee suffered from a L4-5 disc herniation causally related to his 1999 work injury, which was partially medically disabling. (Dec. 3, 7.) Because Dr. Ritter did not receive all the medical records intended for his review, the judge allowed the parties to submit additional medical evidence. (Dec. 3.) The employee introduced reports of his surgeon, Dr. Richard Ozuna, and of Dr. James Wepsic. Both doctors totally disabled the employee from all employment, and, viewed as a whole, L. Locke, Workmen's Compensation § 522 (2d. ed. 1981), considered the prospect of further surgery for his condition a reasonable or not unreasonable option, as conservative treatment had not succeeded in alleviating the employee's debilitating pain. (See Dec. 7-8; reports of Drs. Wepsic and Ozuna. [1]) On August 2, 2001 the employee underwent the second surgery -- a posterior spinal fusion. (Dec. 8.) Despite having allowed the parties to submit additional...