Case of Pilon, 06-P-858.
| Court | Appeals Court of Massachusetts |
| Citation | 866 N.E.2d 977,69 Mass. App. Ct. 167 |
| Docket Number | No. 06-P-858.,06-P-858. |
| Parties | WILLIAM PILON, JR.'S CASE. |
| Decision Date | 29 May 2007 |
[866 N.E.2d 978]
Paul M. Moretti & Mark D. Robins, Boston, for Massachusetts Insurers Insolvency Fund.
Michael K. Landman, Boston, for the insurer.
Present: GRASSO, ARMSTRONG, & VUONO, JJ.
GRASSO, J.
The Massachusetts Insurers Insolvency Fund (Insolvency Fund) appeals from a decision of the reviewing board of the Department of Industrial Accidents (board) affirming the decision of an administrative judge that the Insolvency Fund is responsible for payment of workers' compensation
benefits to William Pilon, Jr. The Insolvency Fund asserts that the administrative
judge erred in (1) finding that Pilon's incapacity was due to a single injury, rather than a subsequent injury for which a successor insurer would be liable; and (2) ordering the Insolvency Fund to reimburse the successor insurer for temporary incapacity payments paid to Pilon. We discern no error in the determination that Pilon suffered but a single injury. The board erred, however, in ordering the Insolvency Fund to reimburse Pilon for the benefit of the successor insurer, because G.L. c. 175D, § 1(2), prohibits the Insolvency Fund from making payments that benefit an insurer.
1. Pilon's employment and injury. There is no dispute that on June 3, 1998, while employed by R.S. Guerette Corporation (Guerette), Pilon sustained carpal tunnel injury and nerve damage to his arms and hands due to constant use of vibrating demolition equipment.1 At the time of Pilon's injury, Guerette was insured by Credit General Insurance Company (Credit General).2
On November 1, 1998, Pilon began employment at Specialty Contracting Services, Inc. (Specialty). In the course of that employment, he again experienced pain and numbness in his elbows, wrists, and hands. Although one-half of Pilon's work at Specialty was in the office, he still used vibrating demolition equipment. In July, 1999, the pain made a "sudden recurrence" and worsened to a point that on December 28, 2000, Pilon could no longer write or drive. He had severe pain and some numbness in areas around his right elbow, hand, and the web area between his right thumb and index finger. He had similar, though less severe, pain on the left side. Pilon ceased working for Specialty on December 28, 2000.
At that time, AIM Mutual Insurance Company (AIM) was Specialty's insurer. From the beginning of Pilon's employment with Specialty until November 13, 2000, when AIM became Specialty's insurer, Specialty did not have workers' compensation insurance. Consequently, the Workers' Compensation Trust Fund (Trust Fund)3 was liable for any compensable injury to Pilon
during the period that Specialty was uninsured. See G.L. c. 152, § 65(2).
2. Pilon's claims and the insurer liable for his injury. Where an employee suffers two or more compensable injuries that are causally related to a resulting incapacity, only one insurer is chargeable for the payment of compensation for the same disability. The successive insurer rule provides that the insurer covering the risk at the time of the most recent injury that bears causal relation to the disability claimed must pay the entire compensation. See Fitzpatricks' Case, 331 Mass. 298, 300, 118 N.E.2d 774 (1954); Casey's Case, 348 Mass. 572, 574, 204 N.E.2d 710 (1965); Zerofski's Case, 385 Mass. 590, 592, 433 N.E.2d 869 (1982). The subsequent injury need not be a significant contributing cause to the incapacity. So long as it is to the "slightest extent" a contributing cause, the insurer at the time of the recent injury will be held liable to cover the entire incapacity. See Rock's Case, 323 Mass. 428, 429, 82 N.E.2d
616 (1948). The determination whether there was a subsequent injury and whether it had causal connection to the ensuing incapacity is essentially a question of fact, Costa's Case, 333 Mass. 286, 288, 130 N.E.2d 589 (1955); see also Zerofski's Case, 385 Mass. at 594, 433 N.E.2d 869, on which expert medical opinion is required. See Casey's Case, supra.
The Insolvency Fund maintains that the administrative judge erred in finding that Pilon's compensable incapacity was due only to the injury sustained on June 3, 1998, a determination that was upheld summarily by the board. Neither the board nor the administrative judge erred. Findings of fact, assessments of credibility, and determinations of the weight to be given the evidence are the exclusive function of the administrative judge. See Chapman's Case, 321 Mass. 705, 707, 75 N.E.2d 433 (1947). We will not disturb the judge's findings that are "reasonably deduced from the evidence and the rational inferences of which it was susceptible." Ibid. On the evidence before him, the administrative judge did not err in concluding that Pilon sustained but a single compensable injury, which occurred on June 3, 1998, when he was employed by Guerette, and that Pilon's subsequent complaints were but a continuing manifestation of his original injury. Nor did the board err in summarily affirming that determination. See G.L. c. 152, § 12(2); Scheffler's Case, 419 Mass. 251, 257-258, 643 N.E.2d 1023 (1994).
The evidence, including the medical notes and reports, did not compel the administrative judge, as matter of law, to find a new injury that was a contributing cause to Pilon's ensuing incapacity. See Chapman's Case, 321 Mass. at 707, 75 N.E.2d 433; Costa's Case, 333 Mass. at 288, 130 N.E.2d 589. Rather, the administrative judge could reasonably infer that the evidence merely demonstrated periodic recurrences of vibration-induced upper extremity problems caused by the June, 1998, injury.
The closest a medical expert came to describing a new injury was a 2001 progress note of Dr. Daniel Gottlieb which stated that Pilon's "arm problems are work related either by causation or exacerbation."4 Doctor Gottlieb's note left open the possibility that work-related activity after 1998 may have only provided the occasion for the reappearance of symptoms rather than caused a new injury. See Rock's Case, 323 Mass. at 429-430, 82 N.E.2d 616. The administrative judge was at liberty to accept or reject Dr. Gottlieb's opinion. See Sutherland's Case, 2 Mass. App.Ct. 58, 61, 308 N.E.2d 775 (1974). Indeed, he adopted the report of Dr. Hillel Skoff, the impartial examiner required under G.L. c. 152, § 11A. Doctor Skoff was the only medical expert who identified a time period for the cause of the incapacity.5 Based on his examination of Pilon in 2002 and his review of several years' worth of medical records, Dr. Skoff concluded
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