Toye Tavares, Employee
Massachusetts Bay Transportation Authority, Employer
Massachusetts Bay Transportation Authority, Self-Insurer
No. 027900-17
Massachusetts Workers Compensation Decisions
Commonwealth of Massachusetts Department of Industrial Accidents
April 6, 2020
This
case was heard by Administrative Judge Fitzgerald.
APPEARANCES
Michael J. Powell, Jr., Esq., for the employee.
Paul
Brien, Esq., for the self-insurer.
Martin
J. Long Administrative Law Judge, Bernard W. Fabricant
Administrative Law Judge, Catherine Watson Koziol
Administrative Law Judge.
REVIEWING
BOARD DECISION
LONG,
J.
The
self-insurer appeals from a decision ordering § 34
temporary total incapacity benefits from October 25, 2017, to
April 25, 2018, and medical benefits pursuant to
§§13 and 30, including recommended surgical
procedures. The self-insurer’s sole issue on appeal is
whether “the administrative judge incorrectly shifted
the burden of proof regarding the § 1(7A) issue to the
self-insurer and incorrectly adopted the medical opinions of
the treating physicians which did not address the ‘a
major cause’ issue with regard to the left wrist
injury.” (Insurer br. 1.) We disagree with the
self-insurer and affirm the hearing decision.
The
employee’s claim for § 34 temporary total
incapacity benefits and §§ 13 and 30 medical
benefits, was conferenced pursuant to §10A on February
13, 2018, and an order for payment of ongoing § 34
benefits and conservative medical treatment, was issued on
February 14, 2018. Cross appeals by the parties prompted a
§ 11A impartial medical examination with Dr. Stanley
Hom, on March 26, 2018, and on May 24, 2018, a hearing de
novo was held. At the hearing, the employee sought § 34
benefits from the date of injury, October 25, 2017, to May 1,
2018, and §§ 13 and 30 medical benefits. The
self-insurer denied all aspects of the claim and sought the
application of § 1(7A) as a defense.
[1] As required by
452 Code Mass. Regs. § 1.11(1)(d)
[2], the self-insurer
presented an offer of proof at the commencement of the
hearing, the entirety of which follows:
Your Honor, I have a report from Doctor McGlowan dated
7/25/17 along with his x-ray that was done on 7/25/17 for the
left wrist with a diagnosis of TFCC tear, the exact same
diagnosis as being made now. And I have Mr. – the
report actually states that she was in a motor vehicle
accident on 7/18/1[7]. Referred for an x-ray, as well as an
MRI. It’s the same left wrist.
...
