David P. Pollard Employee
M.B.T.A. Employer
M.B.T.A. Self-Insurer
No. 014026-15
Massachusetts Workers Compensation Decisions
Commonwealth of Massachusetts Department of Industrial Accidents
March 16, 2021
This
case was heard by Administrative Judge Spinale.
George
N. Keches, Esq., for the employee at hearing and on appeal
Griffin F. Hanrahan, Esq., for the employee on appeal
Laura
E. Caron, Esq., for the self-insurer
Calliotte, Fabricant, and Long, Judges
REVIEWING
BOARD DECISION
CALLIOTTE, J.
The
self-insurer appeals from a judge’s decision ordering
it to pay the employee § 34A permanent and total
incapacity benefits for injuries to the employee’s left
shoulder and back, from June 16, 2018, to date and
continuing. The self-insurer’s first arguments center
on its contention that the employee failed to defeat the
self-insurer’s § 1(7A) affirmative defense by
proving the employee’s 2010 back injury was compensable
or that the 2015 industrial accident remains a major cause of
his disability or need for treatment. In addition, the
self-insurer argues that the medical evidence does not
support the judge’s finding of permanent and total
incapacity. For the following reasons, we vacate the
decision, insofar as it holds the employee successfully
defeated the applicability of § 1(7A), and recommit the
case for further findings on extent of incapacity based
solely on the employee’s left shoulder injury.
The
employee, who was sixty-two years old at the time of hearing,
worked as an ironworker and foreman for the employer for
twenty-seven years. (Dec. 3.) For approximately eleven years
before that, he worked as an ironworker for other employers.
His jobs required heavy lifting and overhead work. (Dec. 4.)
On February 27, 2015, while working for the employer, the
employee slipped and fell backwards while carrying a chain
link fence on his left shoulder, injuring his left shoulder
and low back. He continued to work until June 2015, when he
left work due to pain. Id. On September 15, 2015,
the employee underwent left shoulder surgery, followed by
physical therapy, with little relief. He also received, and
continues to receive, injections to his low back. On
September 27, 2017, the employee had a lumbar MRI, which
showed L4-5 Grade 1 anterolisthesis with a central disc
protrusion and bilateral facet hypertrophy. At the time of
hearing, he had constant back pain. (Dec. 4-5.)
The
self-insurer paid § 34 temporary total incapacity
benefits from June 2015 through exhaustion in June 2018.
Rizzo v. M.B.T.A., 16 Mass. Workers’
Comp. Rep. 160, 161 n. 3 (2002)(reviewing board may take
judicial notice of board file). On October 24, 2017, the
self-insurer filed a complaint to modify or discontinue
benefits, to which the employee later moved to join a claim
for § 34A permanent and total incapacity benefits.
Following a § 10A conference on April 6, 2018, an order
issued denying the self-insurer’s complaint, and
requiring the self-insurer to pay maximum § 35 benefits
upon exhaustion of § 34 benefits. In addition, the
self-insurer was ordered to pay for physical therapy for the
left shoulder and for two epidural blocks for the back. The
employee’s motion to join a § 34A claim was
allowed and reserved for hearing. Both parties appealed.
(Dec. 2.)
Prior
to hearing, Dr. Kenneth D. Polivy, a Board-certified
orthopedic surgeon, examined the employee pursuant to §
11A. The judge found his report of July 16, 2018, adequate
and the medical issues not complex. Neither party chose to
depose the impartial physician, thus making his prima facie
written report the only medical evidence in the record. (Dec.
3.) At hearing, the parties stipulated that the employee
injured his left shoulder and low back in the work accident
of February 27, 2015. Id. The insurer raised
disability and extent thereof, and causal relationship,
including § 1(7A). (Dec. 2.)
The
judge adopted Dr. Polivy’s opinion with respect to the
employee’s left shoulder, finding that he “
‘sustained a left shoulder partial rotator cuff tear
causally related to the work injury;’ ” (Dec. 5,
quoting Ex. 1, § 11A report), and that he continues,
after surgery, to have decreased range of motion consistent
with adhesive capsulitis. Dr. Polivy opined that he cannot
return to full, unrestricted work as an ironworker, but is
capable of full-time light duty work with a 20-pound lifting
restriction from floor to waist, with no overhead lifting.
Further surgery would not be helpful, and he has reached
maximum medical improvement. (Dec. 5.) The judge credited the
employee’s testimony that he still experiences a lot of
pain in his shoulder, which limits his ability to perform
everyday activities, such as housework, and leisure
activities like bowling and swimming. (Dec. 6.)
With
respect to the employee’s lumbar spine injury, the
judge adopted Dr. Polivy’s opinion that,
The Employee “aggravated his pre-existing lumbar
degenerative spondylolistheses as a result of the work
injury.” (Ex. 1) Furthermore, the treatment to the
Employee’s lumbar spine, “is reasonable,
medically necessary and causally related to the work
injury” and the Employee “remains stable”
and “is currently being controlled with lumbar epidural
injections.” (Id.) In addition, Dr. Polivy opined the
Employee, “should be capable of full time light duty
work activity with a 20-pound lifting restriction from floor
to waist.” (Id.)
(Dec. 6.) The judge further adopted Dr. Polivy’s
opinion that treatment with lumbar blocks, three times a year
for the next two years, is reasonable, necessary and causally
related to the work injury. Id.
The
judge credited the employee’s testimony that he had
previously injured his back at work in 2010, causing him to
miss three months of work. He was paid a closed period of
workers’ compensation benefits, and had injections and
physical therapy. He returned to work without incident until
February 27, 2015, the date of the injury at issue here. The
judge also credited the employee’s testimony that he
had injured his back before 2010, and had undergone
injections, but it was “nothing that kept him out of
work.” (Dec. 6.) The judge made no findings as to
whether the back injuries prior to 2010 were work-related or
non-work-related or the nature of those injuries. (Dec. 2.)
The
judge found that the self-insurer had raised the affirmative
defense of § 1(7A),
1 but that it did not apply...
