No. 05442493 (1999). EMPLOYEE: Adrian White, Sr.
Case Date | October 28, 1999 |
Court | Massachusetts |
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...
To continue reading
Request your trial