Opinion
BOARD No. 90033-86
Filed: December 30, 1996
REVIEWING BOARD DECISION
(Judges Fischel, Kirby, and Wilson)
APPEARANCES
John W. Costello, Esquire.
Norman P. Beane, Jr., Esquire.
The employee appeals from a decision of an administrative judge denying his claim for permanent and total compensation under G.L.c. 152, § 34A and ordering partial incapacity compensation for a closed period. The employee contends that the judge made legal errors in the analysis of this case and made inconsistent findings. We agree. We vacate the decision, and remand for further findings consistent with this opinion.
The judge found that the 52 year old employee had been a truck driver from 1956 to 1963 and a laborer for the Massachusetts Department of Public Works from 1963 to 1964. (Dec. 3.) In 1965 the employee began working for the Metropolitan District Commission and its successor, the Massachusetts Water Resources Authority (MWRA), the employer in this case. His duties as an "assistant civil engineer" involved inspecting construction job sites. He was required to climb in and around heavy equipment, sewer pipes, crawl spaces and trenches, often using ladders and traversing rough terrain. (Dec. 3.)
He sustained a work related back injury in a motor vehicle accident on November 6, 1986. (Dec. 2.) The self-insurer accepted liability and paid § 34 total incapacity payments until the maximum was exhausted on November 3, 1991. (Dec. 2.)
Mr. Cadigan then claimed § 34A total and permanent incapacity benefits or, in the alternative, § 35 partial incapacity compensation, based on continuing incapacity resulting from the accepted November 6, 1986 injury. (Dec. 2.) Following a conference on April 29, 1992, the judge filed an order of payment for ongoing § 35 weekly benefits. (Dec. 2.) Both parties appealed. (Dec. 2.) The issues before the judge at the hearing were whether the employee was entitled to continuing weekly benefits either under § 34A or § 35 as well as continuing medical benefits.
After considering the medical testimony of two physicians, the judge adopted the opinion of Dr. John J. Walsh, an orthopedic surgeon who began treating the employee on November 14, 1986, that the November 6, 1986 motor vehicle accident caused "acute soft tissue injury to the employee's low back with secondary lumbar radiculitis." (Dec. 5.) She concluded that the November 6, 1986 back injury symptomatically aggravated the employee's pre-existing back condition. (Dec. 5.) Dr. Walsh restricted the employee from anything more than brief periods of sitting, standing, walking or climbing, or from repetitive twisting, turning, bending, lifting, stooping, squatting, or exposure to extremes of temperature. (Dec. 4.) The judge noted that the self-insurer's examiner, Dr. John Ritter, agreed that the employee's work activities should be restricted in a fashion similar to that recommended by Dr. Walsh. (Dec. 5.)
Dr. John Ritter opined that the November 6, 1986 work incident had not caused any injury to the employee's back whatsoever, and that the employee's back was the same before November 6, 1986 as it was after that date. (Dec. 4; Dep. Ritter 9-10, 27, 31.) Dr. Ritter attributed the restrictions he placed on the employee's activities to the employee's pre-1986 back injuries. The judge adopted Dr. Ritter's "analysis of the etiology" of the employee's back condition. (Dec. 5.) She terminated weekly incapacity benefits as of the date of Dr. Ritter's examination on July 13, 1992. (Dec. 6.)
The employee sustained a back injury in a 1955 parachuting accident while serving in the United States Paratrooper Corps. (Dec. 3.) He underwent surgery for this injury in 1956 which resulted in a 40% service disability rating. Id. He subsequently sustained a work related back injury during the blizzard of 1978 which kept him out of work for some time. Id.
The employee argues on appeal that the judge's findings are internally inconsistent, since she adopted conflicting medical opinions as to whether the employee ever sustained a back injury at work on November 6, 1986. We agree that the judge adopted contradictory medical opinions, and that this internally inconsistent decision cannot stand. See Costa v. Rudco Indus., 9 Mass. Workers' Comp. Rep. 809, 811 (1995).
The employee argues further error in that the question of original liability for a November 6, 1986 back injury was established, and was not an issue in the hearing. Moreover, having specifically found a work-related aggravation occurred, he argues the judge was not empowered to adopt a medical opinion that no back injury had ever occurred in 1986. We agree.
It also appears that the judge applied an erroneous legal standard in evaluating the issue of continuing causal relationship. The question of whether a "significant portion" of present impairment is related to a pre-existing condition has no bearing on this case. This employee, injured on November 6, 1986, must be taken "as is." Aggravation or acceleration of a pre-existing disease or infirmity to the point of disablement or death is a personal injury as if work had been the sole cause. Brightman's Case, 220 Mass. 17, 20 (1914). The employer and the insurer in this case took Mr. Cadigan with whatever pre-existing medical problems he had. Id.
The judge found as follows:
. . . Dr. Walsh agreed that there was a significant portion of the employee's condition that arose from his preexisting condition. Consequently, I conclude that the employee's disability after July 13, 1992 is not causally related to the November 6, 1986 accident while at work.
(Dec. 5.)
So long as the aggravation injury of November 6, 1986 continues, the self-insurer remains liable for the aggravation, and it is of no relevance that the employee had a pre-existing back condition. While the legislature has modified the "as-is" standard of a compensable injury under § 1 (7A) by St. 1991, c. 398, § 14, for cases in which an industrial accident combines with a pre-existing condition, this substantive change became effective on December 23, 1991 and has no effect on this case. This "as is" employee needed only to show that the employment was one of the contributing factors causing an injury. See Crowley's Case, 223 Mass. 288, 289 (1916); see also Madden Case, 222 Mass. 487, 494 (1916).
We vacate the judge's decision and remand this case for determination of whether the effects of the November 6, 1986 work related aggravation of the employee's back condition continued after the date his entitlement to temporary incapacity benefits was exhausted. See Brightman's case, supra, at 20. Finally, we note that the claim was made for payment of reasonable and necessary medical expenses under § 30. The decision and order are silent with respect to that claim. On remand, the judge should respond to that issue as well.
_________________________ Carolynn N. Fischel Administrative Law Judge
_________________________ Sara H. Wilson Administrative Law Judge
_________________________ Edward P. Kirby Administrative Law Judge
Filed: December 30, 1996