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Appeals Court of Massachusetts, Suffolk

May 16, 2016

Daniel Wilson's Case

         [As Modified as July 14, 2016.]

         Argued March 22, 2016

          Appeal from a decision of the Industrial Accident Reviewing Board.

          Sean M. Beagan for the employee.

          John J. Canniff, III, for the insurer.

         Present: Cypher, Wolohojian, & Carhart, JJ.

          OPINION

          [50 N.E.3d 214] Cypher, J.

          Daniel Wilson appeals from a decision of the reviewing board (board) of the Department of Industrial Accidents (DIA), which reversed a decision of the administrative judge in favor of Wilson, and dismissed his claim. We reverse the dismissal of the [50 N.E.3d 215] claim and reinstate the decision of the administrative judge in favor of Wilson.

         Wilson worked as a heavy equipment mechanic for Southworth Milton in 2006 when he was injured while repairing a hydraulic pump in a truck. Wilson was on his stomach, lying across the transmission of the truck with both arms fully extended in front of him. While using a pry bar in an attempt to skirt the weight on the back of the ninety-pound pump, he felt a stabbing pain in his neck, upper back, and both shoulders. Approximately nine days later Wilson was treated with a cortisone shot. Wilson testified that at that time his left shoulder felt tender, although his right shoulder was much worse.

         In September, 2007, surgery was performed on Wilson's right shoulder. Wilson returned to work five and one-half weeks after

Page 399

his surgery and, as advised by his surgeon, Dr. Peter Noordsij, relied more on his left arm to compensate for lack of use of his right arm. Wilson's left shoulder pain increased.

         Wilson filed a claim for worker's compensation. Sentry Insurance Company (Sentry) settled the claim in 2008 with an approved lump sum payment of $2,500 to Wilson and an award of $5,000 for attorney's fees to Wilson's attorney.[1] See G. L. c. 152, § § 19, 23. The 2008 settlement agreement specified that it covered injuries to Wilson's right shoulder, neck, and upper back.

         Wilson continued to suffer bilateral shoulder pain after the lump sum award but was unable to obtain medical benefits. In 2011, Wilson filed a claim for payment of medical benefits for treatment of his left shoulder, as well as his right shoulder, from the 2006 industrial accident. Sentry disputed Wilson's claim, and Dr. Ralph Wolf, an impartial medical examiner[2] (IME), was appointed to examine Wilson. Dr. Wolf provided a written report indicating that Wilson's left shoulder injury " was secondary" to the industrial accident and noting that " the patient did not report left shoulder pain ... until one year post injury." In ...


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