No. 16-P-868.


Appeals Court of Massachusetts.

Attorney(s) appearing for the Case

Robert V. Finneran, Esquire , for Peter Bennett, Plaintiff/Appellant.

By the Court (Grainger, Blake & Neyman, JJ.)


Summary decisions issued by the Appeals Court pursuant to its rule 1:28, as amended by 73 Mass.App.Ct. 1001 (2009), are primarily directed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, such 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. See Chace v. Curran, 71 Mass.App.Ct. 258, 260 n.4 (2008).

The employee, Peter V. Bennett, filed a claim for workers' compensation benefits, alleging that he had suffered a work-related pulmonary injury on August 24, 2008, while working as an HVAC technician for the self-insured employer, Northeastern University (Northeastern). Northeastern contested liability, citing a lack of evidence and the employee's numerous preexisting medical conditions. Following a conference on November 30, 2011, an administrative judge of the Department of Industrial Accidents awarded the employee G. L. c. 152, §§ 34 and 34A, benefits, but reserved the employee's claim for §§ 13 and 30 medical benefits for hearing. Both parties appealed.

Following a de novo hearing, at which the employee testified and the deposition testimony of four doctors, including that of an impartial medical examiner, was submitted, the administrative judge again issued a decision in favor of the employee on October 23, 2014. Northeastern appealed to the reviewing board of the Department of Industrial Accidents (board). Concluding that the employee had failed to prove that his breathing difficulties were causally related to his work, the board reversed the decision of the administrative judge. The employee appeals. We affirm the decision of the board.

Standard of review.

"The reviewing board shall reverse the decision of an administrative judge only if it determines that such administrative judge's decision is beyond the scope of his authority, arbitrary or capricious, or contrary to law." Kelly's Case, 78 Mass.App.Ct. 907, 908-909 (2011) (citations omitted). The aggrieved party may seek judicial review of the board's decision under G. L. c. 152, § 12(2), and we review the board's decision in accordance with the standards expressed in G. L. c. 30A, § 14(7)(a)-(d), (f), and (g). Carpenter's Case, 456 Mass. 436, 439 (2010). Where, as here, the reversal by the board pertains to a factual matter, "we must determine whether the board was arbitrary or capricious in concluding that the administrative judge was arbitrary or capricious." Wadsworth's Case, 461 Mass. 675, 679 (2012).


"[A]n employee has the burden of establishing, by a preponderance of the evidence, all the elements of [his] claim for workers' compensation benefits, including the fact of the requisite causal connection between [his] injury and workplace events or conditions; and that [he] cannot prevail if any critical element is left to surmise, conjecture or speculation or otherwise lacks evidential support." Patterson v. Liberty Mut. Ins. Co., 48 Mass.App.Ct. 586, 592 (2000) (Patterson).

Here, from the inception of his claim to the time of the de novo hearing, the employee alleged an injury occurring on August 24, 2008, with incapacitation proximately caused and resulting therefrom.1 The administrative judge found, consistent with that allegation, that "[o]n or about August 24, 2008 after working within days proximate to a women's locker room area where stripping chemicals were [in] use, [the employee's] ability to physically breathe and sustain further work was foreclosed." The board reversed, first observing that the administrative judge had failed to make precise findings of the date of exposure, the resulting injury, and the subsequent treatment, in the face of inconsistent evidence and testimony. Second, it observed that Dr. David Christiani's opinion, on which the administrative judge heavily relied, lacked an evidentiary foundation that would support the judge's decision. Upon review of the record, we agree with the board.

Dr. Christiani was a consulting pulmonary specialist who saw the employee after the August, 2008, event. In his deposition testimony, Dr. Christiani makes clear that his diagnosis of a work-related aggravation of the employee's asthma is based on the patient's self-reported history of seeking treatment for his asthma within twenty-four hours of a single work-related exposure. Other uncontroverted evidence in the record establishes, however, that the employee actually sought treatment five days after the alleged exposure event.2 Given the employee's complex and multifactorial asthma, the inconsistent patient history provided to Dr. Christiani renders his opinion on causality fatally flawed. See Patterson, supra at 592-593 (administrative judge may not rest decision on expert opinion based on facts or assumptions that are not evidence in the case).

Moreover, even if timing were not at issue, no evidence established that the employee actually was exposed at the worksite to the chemicals he reported to Dr. Christiani. In fact, at the hearing, the employee testified that he did not know what chemicals were being used on the date of exposure.3

On appeal, the employee nevertheless argues that everyone involved understood that causality was based on long-term exposure. That theory is belied by the record, which frames the issue as a single-date exposure. Furthermore, the patient-reported history to Dr. Christiani described a single exposure, and medical records a few months prior to that event diagnosed seasonally aggravated asthma unrelated to the employee's work. Thus, even under the long-term exposure theory, the employee's evidence still falls short.4

Decision of reviewing board affirmed.


5. The panelists are listed in order of seniority.
1. On the employee's claim form 110, the employee alleged an exposure to solvent on August 24, 2008. Likewise, the issues to be decided at the de novo hearing were limited to the following: "Did the Employee sustain a claimed industrial accident on August 24, 2008. What is his capacity for work as a result thereof. Is his claimed incapacity causally related to the event. Are his medical expenses and treatment reasonable, necessary and related."
2. The employee last worked in the building where the women's locker room shower area was located on August 20, 2008. The alleged exposure date was August 24, 2008, a Sunday, a day the employee did not go to work. The employee reported for work on August 25, 2008, but left early on that date due to illness.
3. The employee reported to Dr. Christiani exposure to toluene and methyl ethyl ketone. In the employee's testimony, he stated that he had no recollection of the chemicals used at the time he was exposed.
4. Neither, unlike the employee's suggestion, did Northeastern somehow waive its appeal by failing to object to Dr. Christiani's deposition testimony. On the contrary, in its arguments to the administrative judge, Northeastern makes clear its position that Dr. Christiani's opinion "lacks the foundation necessary for admissible evidence."


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