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...