In re Steven E. Lombardo's Case
In re Steven E. Lombardo's Case
Opinion of the Court
The employee, Steven E. Lombardo, suffered a work-related injury to his left knee on April 13, 1998. The insurer, Zurich American Insurance Company (Zurich), accepted the case and paid the employee all compensation and benefits then due. The employee returned to work following arthroscopic surgery, and had no issues with his knee until 2008, when he was diagnosed with arthritis, which worsened and eventually required total knee replacement surgery in 2012. He retired just prior to the surgery in 2012 and later filed for further disability benefits with the Department of Industrial Accidents (department).
Although Zurich was the insurer at the time of the April 13, 1998, injury, it alleged that the employee sustained a subsequent work-related aggravation or injury to his knee, and moved to join subsequent insurers to the proceedings. An administrative judge denied the motion. Finding no evidence of any subsequent work-related injury or aggravation, the administrative judge ordered Zurich to pay all compensation and benefits awarded to the employee.
1. Standard of review. "The [reviewing] board's decision may be set aside only if it is arbitrary or capricious, an abuse of discretion, or erroneous as a matter of law." Bolduc's Case,
2. Discussion. "Where an employee suffers two or more compensable injuries that are causally related to a resulting incapacity, only one insurer is chargeable for the payment of compensation for the same disability." Pilon's Case,
Whether the employee suffered a subsequent compensable injury after the April 13, 1998, incident, contributing to his current disability "is essentially a question of fact, on which expert medical opinion is required." Pilon's Case,
The evidence in this case did not require the administrative judge to find a subsequent contributing injury. See Pilon's Case,
The employee's testimony, moreover, was corroborated by the impartial medical report prepared by Dr. Gilligan. The report stated that the April 13, 1998, injury was a major cause of the employee's disability -- he had "an element of preexisting osteoarthritis which was exacerbated by the work injury." No subsequent injury was mentioned or cited in the diagnoses, and the only aggravation noted could not "be attributed to the work injury per se." The administrative judge could find the employee's testimony dispositive as to the cause of his disability, notwithstanding any medical evidence to the contrary. See Wilson's Case,
Dr. Gilligan's later testimony, likewise, did not void his initial conclusion. Rather, he maintained that the April 13, 1998, injury was the predominant cause of the employee's knee replacement and disability, adding only that a 1981 injury (previously unknown to Dr. Gilligan) could be a contributing factor. Significantly, Dr. Gilligan specifically stated that nothing had changed his opinion "regarding either the preexisting condition, the diagnoses, or the causation aspect" of his report. The administrative judge was entitled to rely on this testimony, even in the face of inconsistencies, see Brommage's Case,
Given the record before him, the findings of the administrative judge were not "lacking in evidentiary support." MacDonnell's Case,
Decision of reviewing board affirmed.
The administrative judge issued an amended decision to include the allowance of a motion for enhanced attorney's fees by the employee's counsel.
We address only Zurich's claim concerning its liability under the successive insurer rule and its related claim concerning Dr. Mark Gilligan's testimony. All additional arguments were waived at oral argument.
The employee has requested, and is entitled to, an award of attorney's fees and costs with respect to this appeal. See G. L. c. 152, § 12A. The employee may submit a petition for such fees and costs, accompanied by appropriate supporting documentation, within fourteen days of the date of the rescript. Zurich shall have fourteen days thereafter to file any opposition. See Fabre v. Walton,
Case-law data current through December 31, 2025. Source: CourtListener bulk data.