The employee, George Rivera, appeals from a decision of the reviewing board of the Department of Industrial Accidents (board) that vacated an award of benefits under G. L. c. 152, §§ 13, 14(1), 30, & 34A, and enhanced attorneys fees under G. L. c. 152, § 13A. , For the reasons that follow, we affirm.
Background. Rivera has been employed as a correction officer for the Department of Correction (DOC) since 1989. On February 25, 1996, he injured both of his knees when he tried to break up a fight between two inmates. The injury required surgery on both knees. The Commonwealth accepted liability for the injury and paid Rivera total and partial incapacity benefits pursuant to §§ 34 and 35.
Rivera returned to work in 2006. In April, 2011, he sought further treatment with his orthopedic surgeon for his left knee, and he filed a claim for benefits to authorize an evaluation. The surgeon examined Rivera after the administrative judge issued a conference order requiring the Commonwealth to pay for the examination under §§ 13 and 30 in December of 2011. See G. L. c. 152, § 10A(2). The surgeon ordered a magnetic resonance imaging of the left knee and recommended further surgery. The Commonwealth appealed from the conference order, but it also issued a utilization review approval of the proposed surgery, suggesting that it would pay for it. On March 13, 2012, the surgeon performed surgery on Riveras left knee. As of that date, Rivera had exhausted all of his benefits.
Thirteen days later, on March 26, 2012, the Commonwealth denied coverage for the surgery. The Commonwealth also denied Riveras request that he receive physical therapy as recommended by his surgeon. On April 3, 2012, Rivera filed a claim for benefits under § 34A. On June 19, 2012, Rivera returned to work full-time, with no restrictions. Thereafter, the Commonwealth withdrew its appeal from the 2011 conference order. The Commonwealth paid for Riveras medical services under §§ 13 and 30, and it also paid for the March, 2012, surgery. It did not offer to pay § 34A benefits.
An administrative judge of the Department of Industrial Accidents heard Riveras claim for workers compensation benefits. After considering (1) the testimony of Rivera, a DOC employee, and two employees of the Commonwealth, (2) the deposition testimony of the impartial medical examiner (IME), and (3) two reports prepared by the same IME, the administrative judge determined that Riveras 2012 knee surgery was causally related to the 1996 injury and that Rivera was totally disabled from employment for the period of March 13, 2012, through June 18, 2012. Although he credited the IMEs opinion that the standard recovery period from the surgery performed on Rivera is six weeks with physical therapy after which the patient would still have pain and discomfort, the administrative judge found that Rivera was totally disabled [following the surgery] and had no prognosis as to when or if he would be able to return to his work. He awarded Rivera § 34A benefits for the closed period when he was out of work following surgery, and he ordered the Commonwealth to pay penalties pursuant to § 14(1) because, he found, it had expressed no reasonable basis for defending against Riveras claims. The administrative judge ordered the Commonwealth to pay for Riveras medical services pursuant to §§ 13 and 30, and he allowed Riveras motion for enhanced attorneys fees.
As noted, the board reversed the decision of the administrative judge, reasoning that Rivera was not entitled to § 34A benefits because he had not offered any medical evidence that his incapacity following surgery was permanent. The board concluded that awarding Rivera a higher amount of weekly benefits under § 34A because he had exhausted his entitlement to a lesser amount under §§ 34 and 35 is contrary to the statutory scheme. The board further concluded that the Commonwealth had reasonable grounds to defend Riveras claims and therefore vacated the award under § 14(1).
Discussion. [T]he 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. Wilsons Case, 89 Mass. App. Ct. 398, 400 (2016), quoting from G. L. c. 152, § 11C, as amended by St. 1991, c. 398, § 31. Here, the board determined that the administrative judges award of § 34A benefits was contrary to law because Rivera did not prove permanency. We may reverse or modify this decision only if it is based on an error of law, or is arbitrary, capricious, or otherwise not in accordance with law. Ibid. See G. L. c. 30A, § 14(7)(c ), (g ). For the following reasons, we see no error of law and nothing arbitrary or capricious in the boards decision.
Under § 34A, as amended by St. 1991, c. 398, § 60, an insurer shall pay benefits to an employee [w]hile the incapacity for work resulting from the injury is both permanent and total. In this context, total and permanent disability is intended to mean total and permanent disability to earn wages of any kind. Frenniers Case, 318 Mass. 635, 639 (1945). The question is not whether the employee is permanently disabled from earning wages from his current or former employment; rather, it is whether the employees disability is such that it prevents him from performing remunerative work of a substantial and not merely trifling character. Ibid. Whether an employee has suffered a total disability is a question of fact, and a boards finding on that issue must stand unless unsupported by the evidence. Trants Case, 21 Mass. App. Ct. 983, 984 (1986). The employee bears the burden of showing that he is entitled to compensation. Id. at 985.
We agree with the board that Rivera did not sustain his burden of showing permanent incapacity. Neither the reports submitted by the IME nor the testimony presented at the hearing addressed Riveras ability to earn wages. While the administrative judge found that Riveras surgery rendered him totally disabled from performing the duties of a correction officer, that finding is of little use ... since one can be totally disabled temporarily or permanently. Kellys Case, 78 Mass. App. Ct. 907, 909 (2011). The administrative judge explicitly credited the IMEs testimony that the standard recovery period for the surgery performed on Rivera is six weeks, and Rivera testified that he returned to work full-time, with no restrictions, three months after the surgery.
It is the boards exclusive function to determine the extent of an employees incapacity and to award compensation accordingly. Sjobergs Case, 394 Mass. 458, 464 (1985). Here, there was no medical evidence that the employee was permanently and totally disabled from all occupations while he recovered from knee surgery. Kellys Case, supra. Instead, the IME effectively testified that recovery [from the surgery] is reasonably certain after a fairly definite time. Yoffa v. Metropolitan Life Ins. Co., 304 Mass. 110, 111 (1939). As such, the boards conclusion that Riveras incapacity following surgery was not permanent within the meaning of § 34A is reasonable and entitled to deference. See Sikorskis Case, 455 Mass. 477, 480 (2009). There was no error.
The board properly vacated the § 14(1) penalties awarded to Rivera because, as the board noted in its decision, Rivera never produced any medical evidence to support his claim of total and permanent incapacity. The Commonwealths contention that Rivera was not entitled to § 34A benefits therefore had some plausibility. DiFronzos Case, 459 Mass. 338, 342-343 (2011) (quotation omitted) (articulating standard for determining whether prudent insurer would have defended the claim). Similarly, Riveras entitlement (if any) to § 34A benefits for a closed, three-month period presented a fair question of law. Ibid. (quotation omitted). Finally, we agree with the board that the Commonwealth had reasonable grounds to defend against Riveras claim for surgery [d]ue to the passage of time between the employees injury [and] his return to full-time work in 2006.
Riveras request for appellate attorneys fees and costs is denied.
Decision of reviewing board affirmed.
The board also recommitted the matter to the administrative judge for reconsideration of the attorneys fees issue. After the administrative judge declined to hear the matter on recomittal because in his view, the case had to be reassigned to another administrative judge, the Commonwealth conceded the attorneys fee issue, and the boards decision became final.
Hereinafter, we will refer to the various provisions of G. L. c. 152 by their section number.
DOC is self-insured through the Commonwealth.
Pursuant to § 14(1), as amended by St. 1991, c. 398, §§ 36-38, if any administrative judge or administrative law judge determines that any proceedings have been brought, prosecuted, or defended by an insurer without reasonable grounds: (a) the whole cost of the proceedings shall be assessed upon the insurer; and (b) if a subsequent order requires that additional compensation be paid, a penalty of double back benefits of such amount shall be paid by the insurer to the employee.
Although neither Riveras motion for an enhanced fee nor the administrative judges decision specify the section under which the fee was awarded, the board reviewed the enhanced fee award under § 13A(5). In pertinent part, that section provides that the insurer shall pay a fee to the employees attorney in an amount equal to three thousand five hundred dollars plus necessary expenses whenever an insurer contests a claim for benefits and the employee prevails at a hearing pursuant to section eleven. G. L. c. 152, § 13A(5), as amended by St. 1991, c. 398, § 35. [A]n administrative judge may increase or decrease such fee based on the complexity of the dispute or the effort expended by the attorney. Ibid.
Quoting from Yoffa v. Metropolitan Life Ins. Co., 304 Mass. 110, 111 (1939), the board noted that permanency is the opposite of temporary or transient, and that Rivera failed to produce any medical evidence that his incapacity from his surgery would continue for an indefinite period which is likely never to end, even though recovery at some remote or unknown time is possible.
Because Rivera makes no argument on appeal regarding the boards decision to vacate the §§ 13 and 30 awards, we confine our analysis to Riveras claim of error under § 34A.
We review the boards 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 boards decision was supported by substantial evidence. Wilsons Case, supra, quoting from Wadsworths Case, 461 Mass. 675, 679 (2012). This is because, [i]n workers compensation cases, [i]t is the exclusive function of the board to consider and weigh the evidence and to ascertain and settle the facts. Bisazzas Case, 452 Mass. 593, 596 (2008), quoting from McEwens Case, 369 Mass. 851, 853 (1976).