No. 03076192 (1999). EMPLOYEE: Edgardo Hernandez.

Case DateDecember 21, 1999
CourtMassachusetts
Massachusetts Workers Compensation 1999. No. 03076192 (1999). EMPLOYEE: Edgardo Hernandez COMMONWEALTH OF MASSACHUSETTS DEPARTMENT OF INDUSTRIAL ACCIDENTS EMPLOYEE: Edgardo Hernandez EMPLOYER: Crest Hood Foam Co., Inc. INSURER: CNA Insurance Co.BOARD NO. 03076192REVIEWING BOARD DECISION (Judges Smith, Wilson and McCarthy)APPEARANCES Sandra J. Jenkins-Bryant, Esq., for the employee Paul M. Scannell, Esq., for the insurer SMITH, J. The employee appeals from a decision that awarded only one week of incapacity benefits and a reduced legal fee. The employee contends that the judge erred by failing to allow him to introduce additional medical evidence for a disputed period of incapacity prior to the date of the impartial medical examination, and by reducing his § 13A(5) attorney's fee for lack of effort. Because the impartial medical report was not facially inadequate, we conclude that the ruling to deny the motion for additional medical evidence was within the scope of the judge's authority, and was not arbitrary or capricious, or contrary to law. We affirm the decision. Edgardo Hernandez worked as shipper, foam fabricator and laminator. (Dec. 4-5.) His stipulated average weekly wage was $240.00. (Dec. 3.) Even though he wore a protective facemask, Hernandez had trouble with the irritating fumes that emanated from the liquid foam. On July 14, 1992, while working in the laminating department, he became dizzy and sweaty, short of breath, had chest pain, and was unable to speak. His foreman called an ambulance. Hernandez was given oxygen and transported to the hospital. (Dec. 5.) Hernandez was hospitalized from July 14, 1992 until July 21, 1992. While in the hospital, Hernandez underwent a series of diagnostic tests, and received medication and treatment. (Dec. 6.) Subsequently, Hernandez spent a year in prison. (Dec. 8.) Since October 4, 1994, he has treated with Dr. Sauls, a primary care physician, who has prescribed an inhaler. Since September 13, 1995 Hernandez has also been under the care of Dr. Dorris, a pulmonary specialist. (Dec. 6.) Hernandez smoked cigarettes until March 1996. (Dec. 7.) He has not worked since July 14, 1992. (Dec. 8.) Three and one half years after his injury, Hernandez filed this claim for workers' compensation benefits. After a § 10A conference, the judge ordered the insurer to pay § 34 total compensation benefits from July 14, 1992 to October 19, 1992, plus medical benefits. Both parties appealed, and the matter went to a § 11 evidentiary hearing. At hearing, Hernandez claimed that he was entitled to the § 34 total compensation ordered at conference and ongoing § 35 partial compensation thereafter, except for the time when he was incarcerated. 1 The insurer denied the claim on the basis of liability, causal relationship, incapacity and extent thereof. (Dec. 2.) Pursuant to G.L. c. 152, § 11A(2), Hernandez underwent an impartial medical examination on August 9, 1996. Section 11A(2) requires an employee to submit to the impartial medical examiner "all relevant medical records, medical reports, medical histories, and any other relevant information." Hernandez provided the impartial medical examiner with medical records from the time of his injury until October 19, 1992. The impartial medical examiner was not given any records for the next three years. Hernandez provided the records of Dr. Dorris from October 10, 1995 until February 12, 1996. (Ex. 1, p. 3.) Dr. William Patterson, the impartial medical examiner, reviewed the medical records forwarded to him, consulted with standard references in Occupational Medicine, took a history and examined Hernandez. (Ex. 1, p. 1.) He reported that Hernandez has smoked one-half to one pack of cigarettes per day for approximately twenty years. (Ex. 1, p. 2.) His impartial report contained a detailed discussion of the medical records that had been submitted to him. (Ex. 1, p. 3.) He quoted Dr. Harris's consultation report as opining that the changes found "could be secondary to his history of cigarette smoking, although certainly may be a result of acute lung injury from TDI. I would suspect the former, but certainly there is no way of confirming this. . . ." Dr. Harris suggested avoidance of further TDI exposure. The impartial report quoted the hospital discharge summary dated July 21, 1992 as saying: "He was therefore advised not to ever have any TDI exposure, not to return to his place of employment, and to therefore file workmen's comp claims." Id. The impartial report then reviewed the next medical record that the employee had submitted, Dr. Workum's October 19, 1992 Social Security Disability Report. Dr. Workum was quoted as reporting: "No longer working at his previous job. He is doing reasonably well and when I examined him in August he had scattered wheezes and in September his lungs were clear . . . . It is my impression that he has asthma and, in particular, he had an attack of asthma when exposed to TDI . . . . It is my recommendation that he should avoid exposure to toluene diisocyanate and he probably should avoid particularly dusty environments or sudden changes in temperature." Id. The next record reported by the impartial physician was the October 10, 1995 letter from Dr. Dorris, the...

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