Jeffrey Nolette Employee
Leahy Excavating Company, Inc. Employer
Peerless Insurance Company Insurer
No. 019060-15
Massachusetts Workers Compensation Decisions
Commonwealth of Massachusetts Department of Industrial Accidents
February 28, 2020
This
case was heard by Administrative Judge Benoit.
Paul
R. Thebaud, Esq., for the employee
Jessica Bobb, Esq., for the insurer
Calliotte, Koziol and Long, Judges.
REVIEWING
BOARD DECISION
CALLIOTTE, J.
The
insurer appeals from a decision ordering it to pay the
employee § 34 temporary total incapacity benefits from
December 11, 2015, to exhaustion, and ongoing § 34A
permanent and total incapacity benefits. The insurer argues
that the judge erred by relying on a nurse practitioner's
vocational assessment, by failing to consider or adopt the
insurer's vocational expert, and by failing to allow the
insurer's Motion to Reconsider the employee's average
weekly wage. Finding no reversible error, we affirm the
decision.
On July
13, 2015, the employee, a heavy equipment operator, suffered
an industrial injury to his right calf after jumping off an
excavator. The insurer paid benefits without prejudice until
December 10, 2015, after which the employee filed a claim for
§ 34 temporary total incapacity benefits. Following a
§ 10A conference on July 5, 2016, the administrative
judge ordered the insurer to pay § 34 benefits from
December 11, 2015, to date and continuing, at the rate of
$638.40 per week based on an average weekly wage of
$1,064.00. The insurer appealed to hearing, at which the
judge allowed the employee's motion to join a claim for
§ 34A permanent and total incapacity benefits. (Dec. 2.)
The
hearing was held on May 19, 2017, and the record closed
September 1, 2017. (Dec. 2.) The only defenses raised by the
insurer were disability and extent thereof. (Dec. 1; Tr. 4;
Ex. 4, Insurer's Hearing Memorandum.) The parties
stipulated, inter alia, to acceptance of liability and to an
average weekly wage of $1,064.00. (Dec. 2; Tr. 4.) Dr.
Fereshteh Soumekh examined the employee pursuant to §
11A on February 25, 2017, and was deposed on July 27, 2017.
The judge opened the medical evidence sua sponte
“because Dr. Soumekh's report was unclear on a
number of points.” (Dec. 2.)
In his
decision, the judge found the employee, then sixty-six years
old, with an eleventh-grade education and no G.E.D., to be a
credible witness. The employee testified that, in addition to
his work as a heavy equipment operator, he had done other
jobs in the construction field, all of which involved
physical work.
1 He further testified that “he always
has pain in his right lower leg, which generally worsens as
the day goes on,” making his leg “jumpy”
and causing him to be fatigued. (Dec. 4.) His leg is
extremely sensitive at three points, so that touching it
causes a “shock.” He takes
Hydrocodone/acetaminophen, Gabapentin and Baclofen, which
reduce his leg pain to a 3 or 4 out of 10. He is limited to
about 40 minutes of physical activity, such as yard work,
before he has to rest for about the same amount of time.
Driving hurts his lower leg the most, and operating heavy
equipment requires the extensive use of his lower leg. (Dec.
5-6.)
The
judge adopted certain specific opinions of Dr. Soumekh,
including her diagnosis of “Achilles [m]yotendinous
junction strain due to stretch injury on the right
side,” which was causally related to the July 31, 2015
work injury. The judge further adopted Dr. Soumekh's
opinion that the employee was permanently and totally
disabled from his job as a heavy equipment operator, as well
as the restrictions Dr. Soumekh imposed, which included
avoiding any strenuous activity with that leg, such as
hopping, reaching out, jumping, or stepping on it, as well as
walking for a long period of time. (Dec. 5-6.)
Turning
to the employee's capacity for work, and citing
Scheffler's Case, 419 Mass. 251, 256 (1994), as
his “lodestar,” (Dec. 6-7, 8), the judge made the
following findings:
He is now 66 years old, without any computer skills. The
Employee has less than a high school education or its
equivalent. His work has almost always primarily involved
using heavy equipment to move soil, in one way or another, or
building homes and/or traveling great distances to monitor
persons who had contracted to perform that sort of work. He
cannot perform any of that work now. He may be able to
perform sedentary tasks, but I find that he would be unable
to perform those tasks on a sufficiently consistent basis
that would allow him to hold a job, even if he were able to
be hired at one.
In her March 8, 2016 note to Liberty Mutual, the
Employee's Primary Care Physician, Wendy Sergeant, NP
wrote, in pertinent part, “Unfortunately, he is no
longer employed at his last job, nor does he have the skills
to work elsewhere. He is at the age where employers are not
looking to hire, nor is he able to collect for
retirement.” I accept and adopt these statements of
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