Opinion
BOARD No. 00108392
Filed: January 30, 1997
REVIEWING BOARD DECISION
(Judges Wilson, Fischel and Kirby)
APPEARANCES
Joseph R. Buttner, Esq., for the employee at hearing.
Bernard J. Mulholland, Esq., for the employee on brief.
Norman P. Beane, Jr., Esq., for the self-insurer.
The employee appeals from the decision of the administrative judge allowing the self-insurer's complaint for discontinuance of his weekly benefits for permanent and total incapacity under § 34A. Because the decision is based upon errors of law and form, we recommit the case for further findings.
On June 6, 1978, Robert Burrill sustained injuries to his chest and head when he fell eighteen to twenty feet from a forklift. We note that the record indicates he is currently sixty nine years old, has an eleventh grade education and has worked as a machinist his entire adult life. (Employee exhibit 1.) The self-insurer accepted liability and paid § 34 benefits for total incapacity from June 6, 1978 to March 6, 1983, when the statutory maximum was reached. The employee thereafter filed a claim for § 34A benefits for permanent and total incapacity, which were awarded for a psychiatric disability that was related to the 1978 physical injuries. (Dec. 3.)
General Laws c. 152, § 34A provided in relevant part at the time of the 1978 injury:
While the incapacity for work resulting from the injury is both permanent and total, the insurer shall pay to the injured employee, following payment of the maximum amount of compensation provided in sections thirty-four and thirty-five, or either of them, a weekly compensation equal to two thirds of his average weekly wage but not more than one hundred and fifty dollars per week nor less than thirty dollars a week during the continuance of such permanent and total incapacity.
Some seven years later, the self-insurer filed a complaint for modification or discontinuance of benefits. The complaint was denied at conference and, following the self-insurer's appeal, a hearing de novo was held before the same administrative judge. The administrative judge issued a hearing decision allowing the self-insurer to discontinue benefits as of the date of hearing. (Dec. 2, 9.)
The employee raises several issues on appeal. As an initial matter, he correctly asserts that the judge erred in finding that physical disability was not in issue pursuant to the doctrine of res judicata because the 1984 award of § 34 benefits was based on psychological disability. (Dec. 3.)
A finding that physical incapacity ceased is not final as a matter of fact nor res judicata as a matter of law. G. L. c. 152, § 16; see Lichenstein v. Goodyear Tire Rubber, 7 Mass. Workers' Comp. Rep. 33 (1993). The doctrine of res judicata operates as a bar only to relitigation of issues and rights already settled between the parties by final judgment. See Hunnewell's Case, 220 Mass. 351 (1915); Russell v. Red Star Express Lines, 8 Mass. Workers' Comp. Rep. 404, 406 (1994). For example, a new claim or complaint on present incapacity or causal relationship between the original work injury and the present incapacity presents a new and different issue from that of original liability, and as such is not barred from adjudication by the prior judgment. See Vetrano v. P.A. Milan Co., 2 Mass. Workers' Comp. Rep. 232, 234-235 (1988); Russell, supra at 407. We are hard pressed to see how the doctrine of res judicata applies to bar an issue of physical disability in a present incapacity case brought seven years after the last decision on extent of incapacity where there has been a physical injury followed by chronic pain syndrome and depression (Dec. 3-4.) On remand, the judge should make findings on the employee's physical impairments, including the alleged headaches and chronic pain syndrome.
The employee next argues that the judge applied the wrong legal standard in concluding that his current psychiatric disability is not permanent. The judge made the following subsidiary findings on permanency.
I find that Dr. Braverman opined that a medical end result has not been reached and that the disability is not permanent because a comprehensive pain program could benefit the employee.
. . .
Further, I am persuaded by Dr. Braverman's opinion that whatever the employee's psychological condition is today, there is reason to believe it is not permanent, whether relief comes in the form of pain control, alcohol abstention or both.
Dr. Braverman, a psychiatrist, was the § 11A impartial examiner.
It is well established that permanent, when used in the context of permanent and total incapacity, is the opposite of temporary or transient, but does not mean without any possibility of change. Rather, a condition is permanent if it will continue for an indefinite period which is unlikely to end, although recovery at some unforeseeable time in the future is possible. SeeYoffa v. Metropolitan Life Insurance Co., 304 Mass. 110, 111 (1939). Here, Dr. Braverman stated, "It is still possible that [Mr. Burrill] could also benefit from a pain program." (Braverman report 7, emphasis added.) "I would hope that a comprehensive pain program could still benefit this patient." (Braverman report 8, emphasis added.) "I like to be therapeutically optimistic . . ." (Braverman Dep. 35.)
The employee concedes that anything is possible, citing the David and Goliath confrontation. Nonetheless, the case law teaches that the mere possibility that a condition might improve by way of risky operation or otherwise is no bar to a finding of permanent and total disability. See Lauble's Case, 341 Mass. 520, 523 (1960), Wolanski's Case, 350 Mass. 770 (1976). The speculative musings of Dr. Braverman on such "possibilities," which formed the basis of the administrative judge's findings on permanency, should be examined in the context of the opinion as a whole, as well as the applicable law. Dr. Braverman clearly stated his opinion on disability as follows:
. . . it is my opinion that [Mr. Burrill] is indeed suffering from a chronic pain syndrome which is and has been disabling. He has not been able to work, and remains unable to work due to his experience of persistent chronic pain which affects his ability to concentrate and to deal with stress, and contributes to the anxiety and depression. . . . If the chronic pain is viewed as a part of the chronic depression then one could say that he is disabled both on the basis of the depression and the chronic pain. Or, the chronic severe depression can be viewed as further contributing to the persistence and experience of the chronic pain and in that way contributes to the disability. The persistence of the chronic depression is also fueled by the persistence of the chronic pain, as well. . . . In summary then, in my opinion the claimant is totally disabled, and has been totally disabled since the injury in 1978.
(Braverman report 8.) Hence, on remand the judge should make findings on the question of permanency based on the medical and lay evidence that address 1) whether the incapacity will continue for an indefinite period which is likely never to end, even though recovery at a remote or unknown time is possible, and 2) whether recovery is reasonably certain after a fairly definite time. See Yoffa, supra at 111.
The employee's third contention is that the administrative judge erred in rejecting the uncontroverted expert opinion of the § 11A impartial psychiatrist on causal relationship without explanation and also by substituting her own opinion, based on her common knowledge or experience. That the administrative judge erred is clear.
The sole medical opinion admitted into evidence was that of the § 11A examiner. Neither party challenged the medical report nor did the judge exercise her discretion to authorize the submission of other medical evidence.
General Laws § 11A (2), as amended by St. 1991, c. 398, § 30 provides in pertinent part:
The report of the impartial medical examiner shall be admitted into evidence at the hearing. . . . no additional medical reports or depositions of any physicians shall be allowed by right of any party; provided, however, that the administrative judge may, on his own initiative or upon a motion by a party, authorize the submission of additional medical testimony when such judge finds that said testimony is required due to the complexity of the medical issues involved or the inadequacy of the report submitted by the impartial medical examiner.
In his lengthy report Dr. Braverman twice expressed his opinion on causation.
The chronic pain syndrome has precipitated, and is related to the chronic depression and anxiety. That is, due to the injury, the chronic pain, and the loss of his ability to work, he has developed a chronic severe depression . . .
. . .
In my opinion therefore, the chronic pain syndrome and associated chronic depression was causally related to the injury that occurred at work on 6/6/78.
(Braverman report 8, 9.) The hearing judge noted these opinions ("I find that Dr. Braverman causally related the chronic depression to the industrial accident . . .") and then went on to state, "I am not persuaded that . . . any psychological condition the employee presently suffers from is causally related to the injury at work. I reject Dr. Braverman's opinions to the contrary, based on my findings noted below." (Dec. 7.) The findings that follow refer to activities, lack of medication and lack of treatment, and relate to extent of physical disability rather than causal relationship. Others are no more than recitations of testimony.
A finder of fact must rely on uncontroverted medical testimony to determine issues of causation and extent of medical disability where such issues are beyond the common knowledge and experience of the layperson. See Galloway's Case, 354 Mass. 427, 431 (1968), citing Josi's Case, 324 Mass. 415, 417-418 (1949) andSevigny's Case, 337 Mass. 747, 749 (1958). It is noteworthy that mental injuries are rarely regarded as being matters of common knowledge. See Lavoie v. Westfield Public School System, 7 Mass. Workers' Comp. Rep. 77, 81 (1993), and cases cited therein. To be sure, it has long been within the province of an administrative judge to determine the probative value of medical testimony and reject it if not persuaded by it. But when the expert testimony is uncontroverted, there must exist a basis for such rejection on the record and the determination must be accompanied by clear and sufficient findings that support the conclusion. See Robinson v. Contributory Retirement Appeals Board, 20 Mass. App. Ct. 634, 639 (1985); Cook v. Somerset Nursing Home, 8 Mass. Workers' Comp. Rep. 164, 165-166 (1994), and authorities there cited. Because the § 11A expert testimony that was rejected in the case at hand is accorded prima facie status, the findings must also make clear what evidence the judge finds has overcome the prima facie effect of the statutory provision. See Cook v. Farm Service Stores. Inc., 301 Mass. 564, 566-567, 569 (1938). The § 11A opinion here requires the same.
As a related issue, the employee maintains that the judge applied the incorrect legal standard in finding, "I am not persuaded that the work injury is a significant contributing cause of the employee's present psychological condition." (Dec. 8.) We agree. The date of injury was June 6, 1978. The "significant contributing cause" standard for mental or emotional injuries set forth in § 1 (7A) of the Act, made effective as of January 1, 1986, was added by St. 1985, c. 572, § 11 and St. 1986, c. 662, § 6. We consider this amendment substantive in nature and thus applicable only to injuries occurring on or after January 1, 1986. See St. 1985, c. 572, § 65 (amendment to corresponding provision of § 29 deemed substantive); St. 1991, c. 398, § 14 and St. 1991, c. 398, § 106 (corresponding provisions of § 1 (7A) deemed substantive). As his date of injury precedes the enactment of the "significant" standard for causal relationship by several years, the employee need show only that his mental impairment is causally related to his work injury. See Albanese's Case, 378 Mass. 14, 16-19 (1979).
The employee further argues that the hearing date chosen by the judge for discontinuance of benefits was not adequately grounded in the evidence. The May 8, 1983 date chosen by the judge is of no moment to the medical or vocational evidence presented; nothing of medical or vocational significance happened on that date. As we have stated many times, the date of the decision or hearing is irrelevant to the issue of extent or duration of incapacity. See Reppucci v. Ace Generator Co., 9 Mass. Workers' Comp. Rep. 257, 259 (1995); Bursaw v. B.P. Oil Co., 8 Mass. Workers' Comp. Rep. 176, 179 (1994). If on remand, the judge again determines the employee is not both totally and permanently incapacitated, she must select a discontinuance date grounded in the medical or vocational evidence. See Costa v. A T T Technologies, Inc., 8 Mass. Workers' Comp. Rep. 298, 299 (1994).
Finally, the employee contends that the decision does not set forth sufficient subsidiary findings of fact to allow for adequate review. Subsidiary findings of fact must be clear, deal with the issues at hand and state more than mere recitations of testimony to be deemed sufficient. See Penta v. Doherty Lumber, 5 Mass. Workers' Comp. Rep. 68, 69 (1991). In a variation on the usual recitations, the decision at hand "finds" that the witnesses "opined," "testified," "complained," "reported," and "noted." (Dec. 5, 6, 7, 8.) These statements, which may be relevant to the core issues of causation, degree of incapacity and permanency of incapacity, tell us only that the judge finds that the witnesses testified. The transcript and exhibits serve that function. In order to perform our appellate review, we must know what facts the judge found and not what the witnesses said. Only then can we determine if correct principles of law have been applied to the facts as the judge reaches the ultimate conclusion on whether this employee remains both totally and permanently incapacitated.
We recommit the case to the administrative judge for findings of fact and conclusions of law consistent with this decision. Although the employee urges that we remand the case to a different judge, we decline to do. The record is bare of bias, hostility to a party or misconduct, which are among the criteria that typically support reassignment to another judge. See Matter of Schenck, 12 Mass. App. Ct. 532, 535 n. 5 (1981) (appearance of an adversary relationship between judge and petitioner); MacDonald v. MacDonald, 407 Mass. 196, 197 (1990) (overt acts by judge reflected great bias against parties and their attorneys). Nor does the employee direct our attention to such. Other criteria are reflected in the caselaw. See Palmer v. Palmer, 23 Mass. App. Ct. 245, 253 (1986) (judge's assessment of credibility infected by improperly admitted and considered evidence); Gallant v. TRW, Inc., 13 Mass. App. Ct. 1003 (1982) (master's report and findings so flawed that recommittal would be an exercise in futility);Bongiovanni v. New England Tele. Co., 10 Mass. Workers' Comp. Rep. 240, 241 (1996) (case recommitted for further findings and, after an amendatory letter was found deficient as to form and content, reviewing board reversed and ordered a new hearing before another judge on direction of single justice of Appeals Court). We see nothing to indicate that the same hearing judge cannot resolve this case fairly by finding facts and applying the principles of analysis set forth herein.
So ordered.
_________________________ Sara Holmes Wilson Administrative Law Judge
_________________________ Carolynn N. Fischel Administrative Law Judge
_________________________ Edward P. Kirby Administrative Law Judge
Filed: January 30, 1997