Vaillancourt, 053119 MAWC, 002618-11

Case DateMay 31, 2019
CourtMassachusetts
Patricia Vaillancourt Employee
Templeton Developmental Center Employer
Commonwealth of Massachusetts Self-insurer
Nos. 002618-11, 028974-11
Massachusetts Workers Compensation Decisions
Commonwealth of Massachusetts Department of Industrial Accidents
May 31, 2019
         This case was heard by Administrative Judge Maher.           Charles E. Berg, Esq., for the employee           Arthur Jackson, Esq., for the self-insurer at hearing and on appeal           Joseph Clark, Esq., for the self-insurer at hearing and on appeal           Calliotte, Harpin and Long, Judges.           REVIEWING BOARD DECISION           CALLIOTTE, J.          The self-insurer appeals from a decision ordering it to pay § 34A permanent and total incapacity benefits for physical injuries and their psychiatric sequelae. The self-insurer argues that the judge’s incapacity determination was arbitrary and capricious because it failed to take into account the minimal § 36 loss of function benefits awarded at conference, which, the self-insurer maintains, do not support a finding of permanent and total incapacity. In addition, the self-insurer argues that the judge failed to consider the § 11A physician’s testimony as a whole. We disagree and affirm the decision.          The employee, sixty-three years old at the time of hearing, completed the eleventh grade and then got her GED. Prior to her industrial accidents, she had worked for approximately twenty-five years as a developmental aide for the employer. Her duties ranged from socializing and playing games with developmentally disabled clients to assisting with transfers to the bathroom. Correspondingly, the physical requirements of her job ranged from sedentary to physically demanding. (Dec. II, 5-6.)[1]          In 2011, the employee suffered two industrial accidents. On October 15, 2011, she fell while assisting a patient, injuring her neck, shoulder, back and left knee. (Dec. II, 12.) She returned to work in a light duty capacity, but, on November 2, 2011, fell at work again, re-injuring her left knee. She has not returned to work. (Dec. II, 6.)          The self-insurer initially paid the employee § 35 benefits pursuant to a conference order and then a § 19 agreement. (Dec. I, 3.) The employee subsequently filed a new claim for §§ 34, 34A or 35 benefits, and for §§ 13 and 30 psychiatric benefits beginning on April 19, 2012. Id.          In the first hearing, the parties stipulated that the self-insurer had accepted liability for the physical injuries occurring on both claimed dates, (Dec. I, 4-5), and the judge accordingly found liability for the neck, shoulder, back and knee. (Dec. I, 9-10.) As a result of those injuries, he further found that her “inability to lift, stand for any substantial length of time as well as no bending, crouching or heavy lifting,” excluded her from any of her prior employment, and that, although “she may have the ability to do some type of work,” she could not work, contrary to the suggestions in the vocational expert reports. (Dec. I, 11.)          The judge also found that the psychiatric injury was the result of the “pain and limitations to her life” which arose “as a consequence of her physical injuries.” (Dec. I, 11.) After finding the employee was hospitalized for five days in 2012 with suicidal thoughts, (Dec I, 7), the judge adopted the opinion of Dr. Mark O. Cutler, the psychiatric § 11A examiner, that “the ongoing pain and the substantial limitations in the activities of this employee’s daily living have changed her life and brought on the emotional aspects of sadness, despair and suicidal thoughts that she now has.” (Dec. I, 9-10.) The judge further adopted Dr. Cutler’s opinion that, as of April 16, 2014, she is “totally disabled from major depression and is in need of psychotherapy to improve her condition.” (Dec. I, 11.) The judge did not find her total disability to be permanent, as Dr. Cutler felt “psychotherapy would assist her pain management and alleviate her depressive disorder.” Id. Accordingly, the judge ordered § 34 benefits from April 16, 2014, and continuing; reasonable and related medical expenses for the employee’s left knee and psychiatric condition for the November 2, 2011, injury, as well as medical benefits for the employee’s back and neck based on the October 15, 2011, injury.[2] (Dec. I, 13.) Neither party appealed. Rizzo v. M.B.T.A., 16 Mass. Workers’ Comp. Rep. 160, 161 n.3(2002)(permissible to take judicial notice of Board file).          On or about March 3, 2017, the employee filed the present claims for § 34A permanent and total incapacity benefits, §§ 13 and 30 medical benefits, and § 36 loss of function benefits in the amount of $6,905.78 for the lumbar and thoracic spine and bilateral lower extremities.[3] Rizzo, supra. Following a § 10A conference, the judge ordered the self-insurer to pay § 36 benefits of $1,328.91 for a 3% permanent loss of use of the left lower extremity for the November 2, 2011, injury. In a separate conference order based on the October 5, 2011, date of injury, he ordered the self-insurer to pay § 34A benefits beginning April 16, 2017, as well as § 36 benefits for a 1% permanent loss of use of the cervical spine in the amount of $272.46, and $363.46 for a 1% permanent loss of use of the lumbar spine. Rizzo, supra. In addition, the judge...

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