Opinion
BOARD No. 01823488
Filed: May 31, 1996
REVIEWING BOARD DECISION
(Judges Kirby, Smith and Maze-Rothstein)
APPEARANCES:
Oleg Nikolyszyn, Esquire, for the employee
Linda Oliveria, Esquire, for the insurer
The employee appeals from the decision of the administrative judge finding he did not suffer a recurrence of an original industrial injury. The employee argues that the decision is arbitrary and capricious as his findings ignore uncontradicted medical opinion bearing on that claimed period of incapacity and instead are based upon stale medical opinions that predate the alleged recurrence of the injury. We agree and therefore vacate the decision and remand for further findings consistent with this opinion.
The employee, forty years of age, was working for Hiller Company (Hiller) as an auto mechanic when, on March 30, 1988, he injured his back while changing a truck tire. (Dec. 6.) As a result, the employee was out of work from the date of the injury until February 9, 1989. (Employee's Brief, 1.) The insurer voluntarily paid compensation during this period. (Insurer's Brief, 1.)
In February 1989, the employee began a new job as a tool setter at Mel-Co-Ed (Mel-Co), a Rhode Island company. (Dec. 7; Tr. 28-31.) The employee describes his job at Mel-Co as sitting at a machine and working with tools that were not particularly heavy. Id. The employee testified that while working at Mel-Co, pain from the injury at Hiller continued to bother him. (Dec. 8.) On June 4, 1991, the employee's pain had become so severe that he was no longer able to continue working at Mel-Co. (Dec. 9.)
On July 18, 1991, the employee filed claims for compensation under G.L.c. 152, § 34, 13, 30, 35A and 35B for a June 4, 1991 recurrence of the original 1988 industrial injury. After a conference held on April 23, 1992, the judge issued an order denying benefits. (Dec. 4.) The employee appealed. Before the case was scheduled for hearing, the administrative judge left the bench. The case was heard on April 6, 1993 before a different administrative judge who issued his decision on November 30, 1994 and denied all claims. (Dec. 28-30.) The employee now appeals to the reviewing board.
The employee's claim for the 1991 injury hinges on a recurrence theory. In his decision, the administrative judge adopted the medical opinions of two doctors who examined the employee prior to any alleged recurrence. (Dec. 26.) These doctors, who had last seen the employee approximately three years before the alleged 1991 recurrence, opined that the March 1988 work related injury was on the mend. One doctor opined that the employee could return to work and enter a rehabilitation program as of June 2, 1988. (Dec. 26-27; Employee Ex. 11.) The second doctor opined on behalf of the insurer, that the employee had recovered from the work related low back injury and could return to work in his previous position approximately six months after his May 31, 1988 examination. (Dec. 17, 26-27; Employee's Ex. 10; Insurer's Ex. 2.) The employee did in fact return to work in March of 1989.
The administrative judge, however, refused to adopt the opinions of three of the employee's medical experts, all of whom examined the employee from 1991 to 1993 subsequent to the employee's last day of work on June 4, 1991, and causally related the employee's present disability to the original 1988 injury. (Dec. 24-27.) In this regard the judge found:
The judge adopted, only as to the results of their diagnostic testing, the reports of three other experts submitted on behalf of the employee. These doctors, who examined the employee after June 4, 1991, respectively opined that the employee suffered from L5-S1 osteophyte and L4-L5 large left lateral disc herniation, active denervation in the distribution of the L5 nerve on the left, and distal radiculopathy involving the L5 dermatome. (Dec. 24-26.) The judge rejected the opinion of the insurer's expert who examined the employee after June 1, 1991 without giving any causation opinion. He did opine that the employee could not return to his previous work as a mechanic but could perform a lighter duty job. (Dec. 27.)
. . . the testimony of Edward Dexter to be credible as it relates to his observations of the physical problems the employee was having while working at Mel-Co and his observation that the employee's condition got worse as he was working at Mel-Co. I find that the testimony of Mr. Dexter to be credible when he says that the employee did not report to him any new or specific injury occurring at Mel-Co.
(Dec. 24.) (Emphasis added.)
This finding on the one hand adopts the fact of a worsening condition after the employee's return to work between 1989 and 1991 and yet, seems to indicate that the worsening was not compensable because of no "new" or "specific injury." See (Dec. 24.) Under Massachusetts law, however, an employee may receive benefits for a subsequent period of incapacity so long as it is causally related to a work injury. If there is a new personal injury causally related to incapacity, then the last insurer on risk is responsible for benfits [benefits]. If the subsequent incapacity is merely a recurrence, then the insurer for the original injury remains responsible. Commercial Union is the first insurer.
It is well established that when a medical issue before the administrative judge is beyond the common knowledge and experience of the layman, findings must be based upon expert medical testimony. See King's Case, 352 Mass. 488, 490 (1967), citing Sevigny's Case, 337 Mass. 747, 749 (1958). Although the administrative judge relied upon medical evidence in this case, that medical evidence was the product of examinations that occurred in 1988, three years prior to the claimed recurrence of 1991 and did not address the causal relationship question at issue. All of the doctors who examined the employee subsequent to the claimed June 4, 1991 recurrence and addressed the issue of causation opined that his disability after that date was causally related to the March 1988 injury.
Where there is uncontradicted medical evidence, the judge must adopt it or give his reasoning for rejecting it. Galloway's Case, 354 Mass. 427, 431 (1968). The judge did not do so. Accordingly, we recommit the case for further findings. G.L.c. 152, § 11C.
On remand the administrative judge must make specific findings supported by medical opinions addressed to the period of incapacity and claimed recurrence. If he rejects the uncontroverted opinions of causal relationship, he must state his reasons. Furthermore, the judge should determine and make findings on whether the employee's ongoing incapacity was due to a worsening caused by the first injury, that is, a recurrence that would be properly chargeable to Commercial Union, the insurer on risk in 1988.
Accordingly, we vacate the decision of the administrative judge and remand for further findings consistent with this opinion. Depending on the judge's findings on causal relation and the extent of incapacity resulting from the June 4, 1991 claimed recurrence at issue, the judge must address the employee's claims under § 35A, 35B, 13, 30, and 13A.
So ordered.
____________________________________ Edward P. Kirby Administrative Law Judge
____________________________________ Suzanne E.K. Smith Administrative Law Judge
____________________________________ Susan Maze-Rothstein Administrative Law Judge Filed: May 31, 1996