In re Lorden11/26/1999
97-P-1707 Appeals Court
Suffolk.
December 7, 1998.
Workers' Compensation Act, Medical benefits, Incapacity, Impartial physician, Prima facie evidence.
Appeal from a decision of the Industrial Accident Reviewing Board.
On April 21, 1992, the employee, Gary Lorden, filed a claim for workers' compensation benefits, seeking payment for medical expenses and various periods of disability associated with a condition he claimed developed while he was employed at Cape Ann Transportation Company (Cape Ann). Lorden, age 39, worked full-time for Cape Ann from March 13, 1989, to November 4, 1989, and part-time as a shop helper (fifteen to thirty hours per week) from March 26, 1990, to July 26, 1991. Lorden alleged he was exposed to carbon monoxide fumes and chemical solvents which caused him to develop toxic encephalopathy. He claimed that his resulting disability entitled him to total incapacity benefits from May 5, 1989, through November 1, 1989 (pursuant to G. L. c. 152, Sect. 34), and to partial incapacity benefits from November 1, 1989, to the present and continuing (pursuant to G. L. c. 152, Sect. 35). He also claimed medical benefits under G. L. c. 152, Sect. 30.
The workers' compensation insurer, Aetna Casualty and Surety Company (Aetna), denied Lorden's claim under G. L. c. 152, Sect. 7. The parties were unable to resolve the dispute at a conciliation conducted pursuant to G. L. c. 152, Sect. 10, whereupon the case was referred to an administrative Judge at the Department of Industrial Accidents (DIA) pursuant to G. L. c. 152, Sect. 10A.
On December 31, 1992, the administrative Judge issued an order denying Lorden benefits. Lorden appealed, and on May 14, 1993, the administrative Judge held a hearing. At the commencement of the hearing, Lorden contended that the case was medically complex and moved for the admission of additional medical evidence. Aetna joined in Lorden's motion, but the Judge subsequently denied it.
Additional hearings were held on June 28 and August 18, 1993. At the August hearing, Lorden offered the report of an impartial medical examiner, dated June 22, 1993, as evidence. Aetna requested and was allowed the opportunity to depose the impartial medical examiner. The deposition was held on September 10, 1993, and by letter dated September 28 to the administrative Judge, Aetna questioned the adequacy of the impartial medical examiner's report and requested the opportunity to submit additional medical evidence. The administrative Judge denied the request, and the record was closed on December 19, 1993. On May 31, 1994, the administrative Judge filed a decision which denied and dismissed the claim. Lorden appealed, and on April 30, 1996, the reviewing board affirmed the decision of the administrative Judge, although one Judge Dissented.
We summarize the facts found by the administrative Judge. The garage where Lorden worked was 100 feet long, 50 feet wide and 25 feet high, with five garage bay doors on one side of the building. Inside, there was a trench approximately one foot wide running the length of the garage. This trench was meant to collect any debris and fluids resulting from the work in the garage. The trench was cleaned out once a week by a shop helper and occasionally by a mechanic. The cleaning involved spraying a solution onto the garage floor, covering it with a drying material, moving the oil and other materials from the garage floor into the trench, and then shoveling the waste out of the trench. Lorden participated in this aspect of the job.
Lorden also assisted, as did all of the employees, with cleaning the company's buses. To wash the exterior of th
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