Opinion
BOARD Nos. 047032-91, 016166-93
Filed: January 5, 1998
REVIEWING BOARD DECISION
(Judges McCarthy, Maze-Rothstein and Smith)
APPEARANCES
Michael C. Akashian, Esq., for the employee
John T. Underhill, Esq., for the insurer
Timothy F. Nevils, Esq., for the self-insurer
Both the employee and the first injury insurer appeal from a decision after recommittal in this multiple injury case. The decision awarded the employee continuing partial incapacity benefits, payable by the first injury insurer, based upon an earning capacity that was greater than that found in the decision prior to recommittal. The employee contends that the change in earning capacity in the recommittal decision, issued without any further evidence to supplement the record, is arbitrary and capricious. The first injury insurer contends that the record compels a finding of a subsequent compensable injury, thereby shifting liability from it to the second injury insurer. We agree with the employee and reverse the earning capacity determination. We otherwise affirm the decision after recommittal.
Vincent Caissie injured his lower back in a slip and fall while working as a tree cutter on August 12, 1991. (Dec. 4.) As a result of the injury, he was totally incapacitated until December 1992, when he returned to part time modified work. Caissie continued to experience severe pain and received chiropractic and medical treatment. His treating physician recommended surgery. (Dec. 5.)
Caissie returned to full time work on May 5, 1993. On June 29, 1993, Caissie hit a bump while riding a lawn mower at work. This incident set off the same pain that he had suffered right after his August 12, 1991 injury. The level of pain soon subsided to its former level, with good and bad days. Id. There was no credible evidence that Caissie's ability to lift changed as a result of the 1993 incident. (Dec. 6.)
Both the insurer on the risk at the time of the 1991 injury and the self-insurer on the risk at the time of the June 29, 1993 incident denied liability for the claimed period of incapacity commencing June 30, 1993. (Dec. 3.) Pending conference, the self-insurer made voluntary payments without prejudice. After a § 10A conference, the judge ordered the first injury insurer to pay the claim and ordered the self-insurer to discontinue benefits. All three parties appealed to a hearing de novo. (Dec. 2.)
Caissie underwent an impartial medical examination by Dr. Jeremy M. Shefner on April 12, 1994, pursuant to the provisions of G.L. c. 152, § 11A. (Dec. 7.) Dr. Shefner opined that Caissie's lower back pain was causally related to the industrial injury of August 12, 1991, which pain had been exacerbated by the June 29, 1993 incident on the lawn mower. The doctor noted Caissie's complaints of continuous pain since the 1991 injury. (Impartial Report.) The judge found the report to be adequate and none of the three parties chose to depose the impartial physician. (Dec. 3.) After hearing, the judge filed a decision finding the 1991 insurer liable for the employee's 1993 claim. The judge awarded § 35 partial incapacity benefits from June 30, 1993, based upon an earning capacity of $102.00 per week. (May 24, 1995 Dec. 9-10.)
The 1991 insurer appealed to the reviewing board, and we recommitted the case for a clarification of whether the June 29, 1993 incident was a "recurrence" or an "aggravation." (Dec. 1.) The judge reissued his decision without taking additional evidence, and made the previously discussed findings regarding the June 29, 1993 incident. The judge therefore once again concluded that the 1991 insurer was liable for the employee's post-June 29, 1993 incapacity. However, the judge modified his assessment of the employee's earning capacity, increasing it from $102.00 per week to $240.00 per week. (Dec. 10.) The 1991 insurer and the employee then appealed to the reviewing board.
By letter dated February 6, 1997, the employee requested an amended decision limited to the issue of aggravation versus reoccurrence, deleting the change in earning capacity. The judge denied his request. (Letter from the judge to employee counsel dated February 20, 1997.)
The 1991 insurer contends that the decision is contrary to law, because the judge failed to find the 1993 self-insurer liable for the employee's subsequent incapacity. Because we think that the evidence on this question of fact does not compel a different result as a matter of law, Costa's Case, 333 Mass. 286, 288 (1955), we affirm the judge's conclusion that the 1991 insurer remained liable, in spite of the 1993 work incident.
The successive insurer rule dictates that the insurer on the risk at the time of the most recent injury bearing a causal relationship to the incapacity is chargeable for the whole compensation to be paid to the injured employee. Id.; Evans's Case, 299 Mass. 435, 437 (1938). Proof of any causal relationship between an alleged personal injury within the meaning of the Act and a medical disability must rest upon expert medical testimony, as it is a matter beyond the common knowledge and experience of the ordinary lay person. Josi's Case, 324 Mass. 415, 417-418 (1949).
In the present case, there was no medical evidence tying the employee's post-June 29, 1993 medical disability to the work incident of that date. On the contrary, the impartial physician's prima facie opinion was that the employee's present medical condition was causally related to the August 12, 1991 work injury. (Impartial Report.) Although the doctor noted that the 1993 incident caused an exacerbation of the employee's pain, the opinion falls short of establishing that event as a cause of the employee's subsequent symptomatology. This case presented an employee who experienced continual severe fluctuating pain as a result of his August 12, 1991 industrial injury. (Dec. 9.) "On the evidence it could have been found that the employee had not recovered from the injury of [August 12, 1991], that the [lawn mower incident on June 29, 1993] did not constitute an independent intervening cause for his subsequent incapacity, but that he would not have sustained any incapacity to labor on or after [June 29, 1993], if he had not then been suffering from the effects of the injury he received on [August 12, 1991]." Rock's Case, 323 Mass. 428, 430 (1948). While the judge's general finding that the 1993 incident caused a "temporary increase" could admittedly support an order against the successive self-insurer for some closed period, that result is not required in the light of the absence of medical evidence to support it. Certainly, the judge would have been hard pressed to determine when the period of the "temporary increase" had ended, given the record evidence. We affirm the judge's conclusion that the 1991 insurer remains liable for the 1993 incapacity.
We now turn to the employee's issue, which has merit. "Issuance of a new decision with orders oppositional to an earlier decision without receipt of additional evidence, argument or even a rational explanation justifying the difference between the two, is clearly arbitrary, capricious and contrary to law within the meaning of § 11C." DeLuca v. Bingay and Son Corp., 9 Mass. Workers' Comp. Rep. 59, 62 (1995). Where no new evidence was admitted between the issuance of the original decision and the decision after recommittal, nor any reason for the change given in the recommittal decision, the reviewing board vacated the change. Because the judge was gone, the board ordered a hearing de novo.Silvia v. Dept. of Environmental Management, 10 Mass. Workers' Comp. Rep. 49, 50 (1996).
In the present case, the reviewing board recommitted the original decision to the judge for further findings on the issue of whether the June 29, 1993 work incident constituted a personal injury within the meaning of the Act: "aggravation" versus "recurrence." The recommittal order permitted the judge, in his discretion, to "make such further findings of fact as he thinks justice and equity require." (Memorandum and Order filed may 29, 1996.) The judge went beyond the specific recommittal request and reassessed the employee's earning capacity. In a ruling on the employee's motion to amend the recommittal decision, the judge explained that he "stayed within the existing fact pattern developed in both the submitted documentary evidence and lay testimony recorded on the stenographers transcript." (Letter dated February 20, 1997.) The ruling does not explain why the judge made the unsolicited change from the earning capacity level set in the original decision. The facts the judge cited in his ruling existed at the time of the earlier decision. "It is whimsical for the same judge to re-decide a case and come to different conclusions where identical evidence is considered without more." DeLuca, 9 Mass. Workers' Comp. Rep. at 62. Without further findings explaining it, we cannot tell the reason for the change of mind; it may be capricious. We therefore reverse the incapacity determination. G.L.c. 152, § 11C. As the administrative judge who heard this case is no longer with the department, it is impossible to recommit for an explanation. We therefore forward the case to the senior judge for reassignment to another administrative judge for a hearing de novo on the issue of the extent of incapacity.
The judge wrote: "In regards to the increased earning capacity found in the second decision (from the first decision finding of $102.00 to $240.00 in the second decision) I do not find it unreasonable or excessive for the following reasons: a) The self-employed claimant continues to perform the same post-injury duties as a supervisor in his landscaping business as he did before the injury without an interruption in that duty from the industrial injury suffered while employed by the Town of Wellesley. b) It can be assumed that a hands-on contractor is either going to operate his business as a profit or will draw a salary from that business that will fairly compensate him for his supervisory responsibilities. Two hundred and forty dollars for an earning capacity, therefore, is not unreasonable." Id.
So ordered.
_______________________ Suzanne E.K. Smith Administrative Law Judge
_______________________ William A. McCarthy Administrative Law Judge
_______________________ Susan Maze-Rothstein Administrative Law Judge
Filed: January 5, 1998