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15-P-112                                             Appeals Court

                       DANIEL WILSON'S CASE.


                           No. 15-P-112.

           Suffolk.      March 22, 2016. - May 16, 2016.

           Present:   Cypher, Wolohojian, & Carhart, JJ.


Workers' Compensation Act, Injuries to which act applies,
     Decision of Industrial Accident Reviewing Board, Findings
     by administrative judge, Expert opinion.


     Appeal from a decision of the Industrial Accident Reviewing
Board.


    Sean M. Beagan for the employee.
    John J. Canniff, III, for the insurer.


    CYPHER, J.   Daniel Wilson appeals from a decision of the

reviewing board (board) of the Department of Industrial

Accidents (DIA), which reversed a decision of the administrative

judge in favor of Wilson, and dismissed his claim.    We reverse

the dismissal of the claim and reinstate the decision of the

administrative judge in favor of Wilson.
                                                                     2


     Wilson worked as a heavy equipment mechanic for Southworth

Milton in 2006 when he was injured while repairing a hydraulic

pump in a truck.    Wilson was on his stomach, lying across the

transmission of the truck with both arms fully extended in front

of him.   While using a pry bar in an attempt to skirt the weight

on the back of the ninety-pound pump, he felt a stabbing pain in

his neck, upper back, and both shoulders.     Approximately nine

days later Wilson was treated with a cortisone shot.      Wilson

testified that at that time his left shoulder felt tender,

although his right shoulder was much worse.

     In September, 2007, surgery was performed on Wilson's right

shoulder.    Wilson returned to work five and one-half weeks after

his surgery and, as advised by his surgeon, Dr. Peter Noordsij,

relied more on his left arm to compensate for lack of use of his

right arm.    Wilson's left shoulder pain increased.

     Wilson filed a claim for worker's compensation.      Sentry

Insurance Company (Sentry) settled the claim in 2008 with an

approved lump sum payment of $2,500 to Wilson and an award of

$5,000 for attorney's fees to Wilson's attorney.1      See G. L.


     1
       Before entering into the lump sum agreement, Sentry
required that Wilson sign an earnings report. Sentry's attorney
did not disclose to Wilson that Sentry had information that
Wilson had been working and earning wages while receiving
worker's compensation benefits. Once Wilson signed the earnings
report, Sentry immediately threatened to charge Wilson with
insurance fraud if he did not settle his case for $2,500. His
employer reported him for insurance fraud, and he was prosecuted
                                                                     3


c. 152, §§ 19, 23.    The 2008 settlement agreement specified that

it covered injuries to Wilson's right shoulder, neck, and upper

back.

     Wilson continued to suffer bilateral shoulder pain after

the lump sum award but was unable to obtain medical benefits.

In 2011, Wilson filed a claim for payment of medical benefits

for treatment of his left shoulder, as well as his right

shoulder, from the 2006 industrial accident.    Sentry disputed

Wilson's claim, and Dr. Ralph Wolf, an impartial medical

examiner2 (IME), was appointed to examine Wilson.    Dr. Wolf

provided a written report indicating that Wilson's left shoulder

injury "was secondary" to the industrial accident and noting

that "the patient did not report left shoulder pain . . . until

one year post injury."    In his deposition, Dr. Wolf testified

that his opinion was based on the history provided by Wilson.

In his deposition on cross-examination Dr. Wolf testified that:

          "The patient, if I understood correctly, felt he had
     no other explanation for his shoulder pain on either side,
     except the 2006 work injury. The reason I ended the
     paragraph the way I did was that it’s unusual for [someone]
     not to report, or for someone not to have noticed that
     there was pain in the opposite shoulder within a few days
     of the 2006 injury. In fact, that it was 2007 before he
     mentioned to me about this, it makes you think that maybe
     the left shoulder had evolved from some other source."



and found guilty by a jury. The conduct of Sentry's attorney
and the validity of the lump sum agreement is not before us.
     2
         Dr. Wolf was also the IME in Wilson's original claim.
                                                                     4


    Wilson testified at the hearing before the administrative

judge that, at the time of the accident, he had pain in both

shoulders, but that the pain in his right shoulder was worse

than the left shoulder and that, as time went on, the pain in

his left shoulder began to increase.   In addition, the

administrative judge had before him ten exhibits (including the

Sentry nurse manager note), Dr. Wolf's written opinion, and

depositions of Dr. Wolfe and Dr. Noordsij.    The administrative

judge stated in his findings that he relied on the credible

testimony of Wilson and the persuasive medical opinions of Dr.

Wolf.

    The administrative judge found that Wilson's left shoulder

injury was causally related to the industrial accident in 2006

and ordered Sentry to pay all reasonable and necessary medical

expenses.   See G. L. c. 119, §§ 13, 30.   In making findings, the

administrative judge may give decisive weight to the credible

testimony of the employee and also may weigh any separate

medical evidence.   See Dalbec's Case, 69 Mass. App. Ct. 306,

314-315 (2007).   "Findings of fact, assessments of credibility,

and determinations of the weight to be given the evidence are

the exclusive function of the administrative judge."      Pilon's

Case, 69 Mass. App. Ct. 167, 169 (2007).   The board's decision

fails to recognize that credibility findings made by the

administrative judge "are to be considered final by both the
                                                                      5


reviewing board and an appellate court."   Carpenter's Case, 456

Mass. 436, 441 (2010).

      We review the board's decision in accordance with the

standards set forth in G. L. c. 30A, § 14(7), governing appeals

from final administrative agency decisions, but "we do not

review whether the board's decision was supported by substantial

evidence."   Wadsworth's Case, 461 Mass. 675, 679 (2012).     See G.

L. c. 152, § 12(2).   We may reverse or modify the board's

decision where it is based on an error of law, or is arbitrary,

capricious, or otherwise not in accordance with law.    See G. L.

c. 30A, § 14(7)(c),(g).   Similarly, the board may reverse the

decision of an administrative judge only where it is "beyond the

scope of his authority, arbitrary or capricious, or contrary to

law."   G. L. c. 152, § 11C, as amended by St. 1991, c. 398, §

31.   See Hick's Case, 62 Mass. App. Ct. 755, 763 (2005).     Thus,

where the board reverses an administrative judge's decision

based on a finding of fact, we must determine "whether the board

was arbitrary or capricious in concluding that the

administrative judge was arbitrary or capricious."     Wadsworth's

Case, supra at 679.

      The board concluded that Dr. Wolf provided two

irreconcilable opinions and that the administrative judge

mischaracterized his medical opinion.   According to Sentry, the

board was correct because the administrative judge cannot select
                                                                    6


which of the testimony to credit.   The problem for Sentry,

however, is that Dr. Wolf did not provide two irreconcilable

opinions.   Although Dr. Wolf expressed uncertainty in light of

the length of time that he believed had passed between the

initial injury and the claim for injury to Wilson's left

shoulder, such concern does not create two contradictory

opinions.   Furthermore, it is clear from Dr. Wolf's testimony

that he did not realize that Wilson had, in fact, complained of

left shoulder pain at his first contact with the nurse

practitioner, and that this complaint was documented.    When the

doctor's testimony is read as a whole and in context with the

other evidence there is no contradiction.

    The board's focus on the fact that Dr. Wolf testified in

his deposition that what he believed to be a delay in reporting

the left shoulder injury caused him some concern does not change

what Dr. Wolf ultimately set forth in his written report.     The

testimony of a medical expert should be considered as a whole.

See Duggan's Case, 315 Mass. 355, 358 (1944).   See also Nason,

Koziol, & Wall, Workers' Compensation § 17.24 (3d ed. 2003).

    The board also ignores Wilson's testimony and,

significantly, the August 26, 2006, record entry of the nurse

case manager, Mara Carofaniello, who noted that Wilson was

complaining of bilateral shoulder pain in the days following the

accident, as well as the subsequent references to left shoulder
                                                                   7


pain in both Wilson's physical therapy notes in September, 2007,

and in the records of Wilson's orthopedic surgeon, Dr. Noordsij,

in June, 2008.3   There is no requirement that the causal

connection be shown by expert testimony alone.    See McAuliffe v.

Metcalfe, 289 Mass. 67, 69 (1935).

     The administrative judge acted within his discretion when

he found that a causal relationship existed between the

industrial accident and Wilson's left shoulder injury, where he

found Wilson to be credible in his testimony as to the nature

and cause of his left shoulder injury.    In addition, Dr. Wolf,

the IME, testified that he had based his opinion as to causal

relationship in his written report on the history provided by

Wilson.   An employee is not required to exclude all other

possible causes, and recognition by the IME of the possibility

of other causes does not destroy the probative force of his

testimony.   See Blanchard's Case, 277 Mass. 413, 415 (1931).

See generally Nason, Koziol, & Wall, Workers' Compensation

§ 17.24 & n.2 (3d ed. 2003).

                                     Decision of reviewing board
                                      reversed.




     3
       On June 17, 2008, Dr. Noordsij noted that Wilson
complained of "left shoulder pain."
