Department of Industrial Accidents, Board No. 005624-00 (Mass. Comw. 5/4/2004), Board No. 005624-00
| Decision Date | 04 May 2004 |
| Docket Number | Board No. 005624-00 |
| Parties | DEPARTMENT OF INDUSTRIAL ACCIDENTS Alfredo A. Argueta, Employee Massachusetts Institute of Technology, Employer Massachusetts Institute of Technology, Self-insurer |
| Court | Mass. Dep’t of Indus. Accidents |
The employee appeals from a decision in which an administrative judge denied and dismissed his claim for further workers' compensation benefits stemming from an accepted industrial low back injury. The employee argues, inter alia, that the judge failed to make subsidiary findings with regard to the medical evidence sufficient to support his conclusion that the employee had no loss of earning capacity beginning on June 12, 2001. While we agree that the judge's medical findings could have been more thorough, we nonetheless affirm the decision.
The employee worked as a laboratory animal technician, and sustained a herniated disc at L4-5 on December 20, 2000 while lifting objects. (Dec. 4.) On January 19, 2001, Mr. Argueta underwent a L4-5 hemilaminectomy and discectomy. The employee's condition improved, and as of March 15, 2001 his treating physician, Dr. Eskandar, cleared him to return to his regular job with restrictions against lifting more than forty pounds. (Dec. 5; Exs. 4 and 5.) The employee returned to work on March 15, 2001, subject to those restrictions. (Dec. 5.) Although the job "involved constant physical activity, [it] was not strenuous," (Dec. 4), as it did not require him to lift in excess of forty pounds. Id. However, due to a series of incidents — including sleeping on the job, improperly addressing a co-worker and failure to report to work — the employee faced disciplinary action, and was finally terminated on June 19, 2001. (Dec. 6-7.)
On February 19, 2002 the § 11A physician, Dr. Mark M. Berenson, examined the employee. Dr. Berenson opined that the employee had sustained a herniated disc at L4-5 on the right which necessitated disc excision on January 19, 2001. He also opined that the employee could return to his employment as an animal technician so long as it did not require heavy vigorous activities; Dr. Berenson imposed a lifting restriction of less than forty pounds. The judge adopted this opinion. (Dec. 5-6.)
The judge allowed additional medical evidence for the disputed period of disability prior to the § 11A examination, from June 12, 2001 until February 19, 2002. (Dec. 3.) The employee introduced medical reports and records of doctors G. P. Massand, Jessica M. Mega and Stephanie A. Nonas. (Ex. 13.) The insurer introduced the report of Dr. Kevin Bozic. (Ex. 12.)
The judge noted that the opinion of Dr. Berenson mirrored the opinions of the employee's physician, Dr. Eskandar, who released the employee to return to work with lifting restrictions on March 15, 2001. (Dec. 5; Ex. 5.)1 The judge concluded that the employee was incapacitated due to his industrial injury only until he returned to work on March 15, 2001. The judge determined that, while the employee was partially disabled due to his lifting restriction of forty pounds, he had the physical capability to perform his former job as an animal technician. Thereafter, the judge concluded, the employee's employment was properly terminated in accordance with the employer's established procedures and due to the employee's workplace conduct. (Dec. 7-8.)
The employee argues that the judge erred in finding that the employee was not incapacitated between March 15, 2001, when the employee returned to work, and February 15, 2002, the date of the impartial examination. Although it would have been better practice for the judge to have dealt specifically with the medical evidence for that period of time, there is no error. The judge effectively, (Dec. 5), adopted the opinion of Dr. Eskandar, the employee's treating physician, that the employee could return to work with a forty pound lifting restriction on March 15, 2001, (Ex. 4), which opinion the doctor reiterated on April 6, 2001. (Ex. 5.) That restriction remained the same on February 19, 2002, based on the adopted opinion of Dr. Berenson, who conducted an impartial examination on that date. (Dec. 5-6.) Therefore, the only question that remains is whether the employee's medical condition changed at any time during the course of the eight months from the commencement of the claimed incapacity, June 12, 2001, until the February 19, 2002 impartial medical examination. The employee himself testified that there was no difference in the pain on the date of the hearing, August 27, 2002, compared to June 2001. (Tr. 46-47.)2 Under these circumstances, there was no error in the judge's finding. As we recently stated in Cugini v. Town of Braintree School Dep't, 17 Mass. Workers' Comp. Rep. 363 (2003), analyzing the necessity for additional medical evidence to address the pre-examination "gap":
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