In re Abad

• Decision Date: 04 April 2012
• Docket Number: 11-P-1129
• Parties: EDUARDO ABAD'S CASE.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

EDUARDO ABAD'S CASE.

11-P-1129

COMMONWEALTH OF MASSACHUSETTS APPEALS COURT

Entered: April 4, 2012

NOTICE: Decisions issued by the Appeals Court pursuant to its rule 1:28 are primarily addressed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, rule 1:28 decisions are not circulated to the entire court and, therefore, represent only the views of the panel that decided the case. A summary decision pursuant to rule 1:28, issued after February 25, 2008, may be cited for its persuasive value but, because of the limitations noted above, not as binding precedent.

MEMORANDUM AND ORDER PURSUANT TO RULE 1:28

The employee, Eduardo Abad, appeals from a decision of the reviewing board of the Department of Industrial Accidents reversing an administrative judge's decision that the employee's work-related back injury was a 'major' cause of his disabling mental illness. We affirm.

The employee injured his back at work in 2006. Pursuant to a 2008 administrative hearing decision, the insurer paid a closed period of G. L. c. 152, § 34, temporary total incapacity benefits followed by ongoing c. 152, § 35, partial incapacity benefits. In January, 2009, the employee filed the present claim for § 34 benefits alleging that his back injury caused a psychiatric disability. The claim was denied at conference, the employee sought de novo review, and an impartial physician was appointed to examine the employee.

Because the employee had a long history of mental illness, including three suicide attempts and at least one hospital commitment, any psychiatric injury caused by the back injury would be considered a combination injury subject to the heightened causation standard of G. L. c. 152, § 1(7A). That section provides:

'If a compensable injury or disease combines with a pre-existing condition, which resulted from an injury or disease not compensable under this chapter, to cause or prolong disability or a need for treatment, the resultant condition shall be compensable only to the extent such compensable injury or disease remains a major but not necessarily predominant cause of disability or need for treatment.'

As to the issue of causation, the impartial's report stated, in part:

'A major and significant part of his chronic depression and suicidality long precedes his [May, 2006] lifting accident. That said, the back pain has added to Mr. Abad's burdens. The depression probably has become harder and deeper since [May, 2006] -- in effect, the depression used the back and leg pain as loci and as additional obstacles to health and growth and good feeling, and the depression very likely has interfered with getting good treatment for the pain (which, Mr. Abad reports, has become worse since 2006, not better). It is not clear how severe the [May, 2006] back accident or strain was, but it is clear that Mr. Abad has tended to slant his history toward blaming pretty much everything on that back accident. Though it is difficult and in some ways perhaps impossible to assign percentages of blame and causality, I would say the [May, 2006] strain and subsequent back and leg problems may account for about [twenty percent] of Mr. Abad's quite serious chronic depression.'

At his deposition, in response to questions seeking to establish the question of major causation, the impartial was somewhat equivocal, testifying that his estimate of twenty percent 'sounds to me somewhat less than major,' and that the 'mental problems which were...