MARIANO CASE v. << (2020)

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

The self-insurer, the town of Needham, appeals from the decision of the Department of Industrial Accidents Reviewing Board (board) entered in favor of the employee, Linda Mariano. In 1998, an administrative judge found the employee totally and permanently disabled by her symptoms causally related to her exposure to airborne toxins present in the environment of the school in which she worked. In 2017, the same administrative judge denied and dismissed the self-insurer's complaint to discontinue the employee's G. L. c. 152, § 34A, benefits for permanent and total disability, and the board affirmed. We affirm.

1. 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.” G. L. c. 152, § 11C. See Hicks's Case, 62 Mass. App. Ct. 755, 763 (2005). “The [reviewing] board, as the agency charged with administering the workers' compensation law, is entitled to substantial deference in its reasonable interpretation of the statute.” Sikorski's Case, 455 Mass. 477, 480 (2009). “With these principles in mind, we review the findings of the administrative judge and the conclusions of the reviewing board.” Hicks's Case, supra at 763, quoting Aetna Life & Cas. Ins. Co. v. Commonwealth, 50 Mass. App. Ct. 373, 377 (2000).

2. Discussion. The administrative judge found “that there has been no evidence of a substantial change in the employee's symptomology or the extent of her disability ․ [n]or has there been any evidence presented that would suggest that the causation that [the judge] found in [his] 1998 decision has dissipated or been superseded in the intervening 19 years.” The administrative judge found that the employee testified credibly about her continuing symptoms. Indeed, all of the doctors recognized her continued symptoms but provided various diagnoses to refer to her ailments.²

The administrative judge acknowledged that the employee's constellation of symptoms is controversial and “has been given many names including Multiple Chemical Sensitivity (MCS), Chronic Environmental Illness (CEI), Idiopathic Environmental Illness (IEI) and Toxicant Induced Loss of Tolerance (TILT).” Because multiple chemical sensitivity is not widely accepted in the medical community, see Canavan's Case, 432 Mass. 304, 314-315 (2000), the administrative judge again “reject[ed] each of these diagnoses as unaccepted by a consensus of the medical community, while accepting that the symptoms that the employee complains of are real and disabling and causally related back to the chemical exposure.” In reviewing the evidence presented, the board was justified in affirming the administrative judge's finding that the self-insurer's burden of production was not met when all of the employee's symptoms remained. See Sikorski's Case, 455 Mass. at 484 (“we review the board's decision to ensure that its factual basis is sufficient to prevent it from being arbitrary or capricious”).

Even assuming the administrative judge did not resolve the case on the burden of production, as the self-insurer suggests, the employee is still entitled to G. L. c. 152, § 34A, benefits. Where the self-insurer appeals the denial of a request to discontinue § 34A benefits, “the employee is put to the task of proving her entitlement to benefits for all of the potential time frames falling under the umbrella of the insurer's complaint for discontinuance.” Conroy's Case, 61 Mass. App. Ct. 268, 275 (2004). Accord Connolly's Case, 41 Mass. App. Ct. 35, 37 (1996). The evidence before the administrative judge permitted him to find that the employee met her burden of proof.

The self-insurer's physician, Dr. Pulde, disagreed with the initial causation of the employee's symptoms and determined that the employee could return to work. “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 administrative judge credited the employee's testimony of her continued symptoms and Dr. Korrick's report of the employee's inability to return to work because of her workplace exposure.³ See Ingalls's Case, 63 Mass. App. Ct. 901, 901 (2005) (“Where there are conflicts in medical opinions, the resolution of those conflicts is for the administrative judge”). Thus, the administrative judge found that nothing has changed in the employee's symptomology or the extent of her disability. The administrative judge determined that the original causation has not dissipated nor was there any superseding causation. The administrative judge found that the employee had carried her burden to show that her disability continued to be the result of toxic exposure in the workplace. Accordingly, we affirm the board's decision declining to terminate the employee's § 34A benefits.

Decision of reviewing board affirmed.

FOOTNOTES

2.   Dr. Robert Swotinsky, the impartial medical examiner, used the term, “idiopathic environmental intolerance.” Dr. Susan Korrick, the employee's treating physician, used both the term “Multiple Chemical Sensitivities,” as well as the term “chronic Environmental Illness.” Dr. Milo Pulde, the self-insurer's examining physician, used the terms “Chemical Intolerance” and “Idiopathic Environmental Illness.” Dr. Rose Goldman used the terms “idiopathic environmental intolerance” and “toxicant induced loss of tolerance.”

3.   We discern no error in the administrative judge's decision to allow Dr. Korrick's report into evidence. Such decisions are within an administrative judge's discretion. See Viveiros's Case, 53 Mass. App. Ct. 296, 301 (2001).