No. 05273893 (2002). EMPLOYEE: Judith Fallon.

• Case Date: September 26, 2002
• Court: Massachusetts

Massachusetts Workers Compensation 2002. No. 05273893 (2002). EMPLOYEE: Judith Fallon COMMONWEALTH OF MASSACHUSETTS DEPARTMENT OF INDUSTRIAL ACCIDENTS EMPLOYEE: Judith Fallon EMPLOYER: Department of Revenue INSURER: Commonwealth of MassachusettsBOARD NOS. 05273893, 04620596REVIEWING BOARD DECISION (Judges McCarthy, Levine and Maze-Rothstein)APPEARANCES Judson L. Pierce, Esq., for the employee Arthur Jackson, Esq., for the self-insurer MCCARTHY, J. The self-insurer appeals from a decision in which an administrative judge awarded the employee temporary total incapacity benefits for a 1996 recurrence of an accepted 1993 industrial injury. For the reasons that follow, we reverse the decision, and recommit the case to the administrative judge for further proceedings and decision anew. On December 13, 1993, Ms. Fallon injured her back while pulling files from a file drawer at work. She was paid weekly temporary total incapacity benefits while out of work for six months. She then returned to work part-time, while receiving partial incapacity benefits. On November 20, 1996, the employee slipped and fell on metal stairs in a garage. She experienced severe back pain, and also injured her hip and ankle. She has not worked since that time. (Dec. 3.) The self-insurer resisted the employee's claim for benefits as a result of a new injury on November 20, 1996, and payment was denied at the § 10A conference on August 6, 1997. The employee appealed that conference order, but later withdrew the appeal prior to the hearing. The employee then filed a new claim for compensation benefits in the alternative, due either to the 1996 incident, or a recurrence of the incapacity as a result of the 1993 industrial injury. That claim was conferenced on March 1, 2000, and was likewise denied. The employee appealed to a full evidentiary hearing. (Dec. 2.) Mark M. Berenson, M.D., an orthopedic surgeon, did an impartial medical examination of Ms. Fallon under § 11A on May 18, 2000. Doctor Berenson's report is the only medical evidence in the case. The impartial physician diagnosed the employee as suffering from "irritation of underlying degenerative disc disease of the lumbar spine with chronic low back pain, all related to the injury in 1993 . . . exacerbated by the injury on November 20, 1996." (Dec. 4, quoting Impartial Medical Report.) The doctor opined that the employee had a permanent partial disability, and could gradually return to restricted work. The judge determined that the employee's claim for the 1996 injury was barred by res judicata under the rule of Cerasoli v. Hale Dev., 13 Mass. Workers' Comp. Rep. 267 (1999). (Dec. 5.) In that case, the reviewing board held that an...