No. 05442493 (1999). EMPLOYEE: Adrian White, Sr.

Case DateOctober 28, 1999
CourtMassachusetts
Massachusetts Workers Compensation 1999. No. 05442493 (1999). EMPLOYEE: Adrian White, Sr COMMONWEALTH OF MASSACHUSETTS DEPARTMENT OF INDUSTRIAL ACCIDENTS EMPLOYEE: Adrian White, Sr. EMPLOYER: Town of Lanesboro INSURER: Mass. Interlocal Insurance AssociationBOARD NO. 05442493REVIEWING BOARD DECISION (Judges Smith, McCarthy and Wilson)APPEARANCES Katherine Lamondia-Wrinkle, Esq., for the employee David G. Shay, Esq., for the insurer at hearing and on brief Ellen Harrington Sullivan, Esq., for the insurer on brief SMITH, J. The insurer appeals from an administrative judge's decision awarding the employee § 34A permanent and total incapacity benefits. The insurer contends that the administrative judge mischaracterized the medical testimony of the impartial physician on critical medical issues in dispute; failed to properly address and apply the correct legal standard under § 1(7A); and impermissibly shifted the employee's burden of proof to the insurer on the issue of the employee's work capacity. We agree. Because the decision is arbitrary and capricious and contrary to law, we reverse it. G.L. c. 152, § 11C. On May 1, 1987, Adrian White, Sr. received a personal injury to his low back arising out of and in the course of his employment for the Town of Lanesboro. He was incapacitated for six months, after which he returned to work with a fifty-pound lifting restriction. (Dec. 4.) His claim form in this proceeding does not reference this date of injury. (Employee's Claim dated 12/13/96.) The record contains conflicting evidence as to whether White recovered from effects of this injury. Compare Employee Ex. 2 (opinion of permanent and total incapacity resulting from the May 1, 1987 injury), Employee Ex. 4 (causally relating chronic S1 radiculopathy to injury of May 1, 1987) and Tr. 12-13 (testimony about lifting restrictions from May 1987) with Impartial Dep. 11, 52 (employee asymptomatic before 1993 injury). The decision makes no findings about whether the 1987 injury plays any role in White's medical disability or need for treatment after December 30, 1993. The claim before us relates to an injury that occurred on December 30, 1993. While working on an electric motor on a boiler, White twisted, re-injuring his back. The insurer accepted liability for the injury and paid § 34 temporary total incapacity benefits. (Dec. 1, 4.) In anticipation of the expiration of those benefits, White filed the present claim that he is now permanently and totally incapacitated as a result of this injury. After a § 10A conference, the administrative judge ordered the...

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