Workers Compensation Summary of Reviewing Board Cases March 2017

Causal Relationship

Steven Vallee v. Brockton Housing Authority, ____ Mass. Workers Comp. Rep. ____ (Harpin, J. 3/15/2017). The Employee appeals the decision denying his claim for weekly monetary and medical benefits after 3/30/2012. The Reviewing Board affirmed the decision opining that it was the Employees burden to provide medical evidence that his psychological disability after 3/30/2012 was casually related to his 2003 industrial accident, and he failed to do so. The Employee had multiple prior hearing decisions, the last of which was in 2009 where the Employee was awarded Section 35 benefits with an earning capacity from 4/12/2006 and continuing.

The Employee made two arguments, first that the life activities occurring after a 2009 decision were caused by the 2003 work injury and that was not considered, and second, that those activities were not superseding causes, but normal and foreseeable resulting in the re-awakening of the compensable injury. The Impartial Physician did not find a causal connection between the 2003 injury and the Employees chronic depression, and the Administrative Judge adopted this opinion. There was no evidence that the life activities after 2009 were caused by the 2003 injury, and as a result the first argument failed. Failure to have causal relationship also defeated the second argument, as it is the first requirement prior to determining whether later event(s) constitute an intervening cause.


Successive Insurer

Steven E. Lombardo v. Titan Roofing Co., ____ Mass. Workers Comp. Rep. ____ (Koziol, J. 3/23/2017). The insurer appealed a decision awarding the Employee Section 34 benefits, and Section 34A benefits thereafter. The Insurer appealed and argued that reversible error was committed first by failing to join subsequent insurers; second by mischaracterizing medical evidence; and third failing to apply Section 35C or Section 35E to the case.

The Employee worked as a union sheet-metal worker from 1970 until 2012. He first injured himself in 1981, and required arthroscopic surgery while working in New Hampshire for a New Hampshire employer. In April, 1998, while working for the Employer in this matter, locked his knee, felt a pop, excruciating pain, could not work thereafter and required a second arthroscopic surgery. He returned to work full duty, and received no further treatment until December, 2008. He received cortisone shots, but sought no further treatment until 2011 when his pain increased. He worked until he was laid off in 2012.

In addition to the current Insurer, the Employees attempt to add two additional insurers, one for the 12/18/2008 date of treatment, and the other for the 10/31/2012 last date of employment. At conciliation, they were administratively withdrawn because there was insufficient evidence to support the claims. Thereafter, the Insurer, on multiple occasions thereafter, attempted to add subsequent insurers without success. Repeatedly, the Administrative Judge found that there was no medical evidence to support a further injury or aggravation to the Employees knee, or that was causally related to other employment. The Administrative Judge also credited the Employees testimony that he did not sustain a new injury or aggravation at work after 1998.

The Reviewing Board found no abuse in discretion in the Administrative Judges refusal to join successive insurers as no medical evidence of further injury or aggravation was provided at any time, and the Insurers last request was untimely. The Reviewing Board did not agree that the Impartial Examiners opinion was mischaracterized as he opined that the incapacity and treatment was related to the 1998 injury, and the Administrative Judge credited the Employees testimony regarding further injury/aggravation. Arguments regarding Sections 35C and 35E were found to be without merit. The Employee had payment and treatment in 1998, so Section 35C was not applicable. And the Employee was sixty-three, so Section 35E was not applicable.


Res Judicata

Thomas A. Yahoub v. Town of Milton, ____ Mass. Workers Comp. Rep. ____ (Calliotte, J. 3/24/2017). The Employee appeals a decision denying and dismissing his claim. The Employee argues that the Administrative Judge should have allowed the record of his Massachusetts Division of Unemployment Assistance (DUA) hearing into evidence, and prevented the re-litigation of the final findings of facts made by the DUA. At Hearing, the Employee filed a motion seeking to preclude litigation of the issues determined by the DUA based on res judicata, and argued that the Administrative Judge should adopt the facts found by the DUA. The Administrative Judge denied the motion finding no privity between the parties in the DUA proceeding, and credited the witnesses that testified that the physical altercation that cased the Employees termination at work (and used as the date of injury) was caused by the Employee. Based on those findings, the Employees claim was dismissed.

The Reviewing Board, analyzing res judicata and reviewing Tuper v. North Adams Ambulance Serv., Inc., 428 Mass. 132 (1998), affirmed the Administrative Judges decision finding that the DUA hearing (and its appeal to Quincy District Court) was not admissible, and assuming arguendo that they were, Employee failed to prove all three elements of issue preclusion. The Reviewing Board also noted that The Employees other arguments failed as they centered on the Administrative Judges creditability findings.