MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
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
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."
"[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."
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.
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.
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.
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.