Opinion
BOARD No. 03408992
Filed: March 5, 1997
REVIEWING BOARD DECISION
(Judges Fischel, Wilson and Kirby)
Judge Kirby no longer serves as a member of the reviewing board.
APPEARANCES
Stephen J. Durkin, Esq., for the employee
Norman P. Beane, Jr., Esq., for the insurer
The insurer appeals from that aspect of a decision of an administrative judge, who awarded the employee continuing § 35 partial incapacity benefits beginning in 1994 for a 1988 left shoulder injury at work. The insurer argues that, because the employee suffered an injury to his right shoulder on May 3, 1992, the benefits awarded in 1994 for residual incapacity involving both shoulders should have been based on the 1992 injury, rather than the 1988 injury. We conclude that the judge applied an erroneous legal standard to the evaluation of the incapacity in 1994 and remand this case for further findings as to the incapacity claimed in 1994.
The employee injured his left shoulder at work in April 1988, when a hose under pressure that he was disconnecting from a barge spun out of control and hit him. (Dec. 451.) He was out of work for twelve weeks with a rotator cuff tear. Id. He returned to unrestricted work, but continued to have pain in his left shoulder, and eventually underwent surgery on the left shoulder on December 3, 1993. (Dec. 449, 451.) The insurer accepted liability for the injury. (Dec. 449.)
In January 1992, the employee also began to feel pain in his right shoulder and arm. (Dec. 452.) He treated for bursitis and tendonitis in that shoulder. Id. Then, on May 3, 1992, the employee felt severe pain in his right shoulder while turning a valve at work. (Dec. 452.) He continued working, favoring his right shoulder, even though his left shoulder did not feel right either. Id. On August 3, 1992, he stopped working due to pain.Id.
The employee treated conservatively at first, but eventually had surgery performed on both shoulders. Id. He had a left shoulder arthroscopy on December 3, 1993, and a more extensive procedure on the right shoulder on August 4, 1994. Id.
The employee filed a claim for § 34 weekly incapacity benefits from August 3, 1992 as a result of the 1988 left shoulder injury or, in the alternative, as a result of the 1992 right shoulder injury. The insurer denied the claim for benefits attributable to the 1992 right shoulder injury, and denied that the employee's incapacity, if any, was causally related to the 1988 accepted left shoulder injury. The parties stipulated that the employee's 1992 average weekly wage was $852.88. (Dec. 447-448.)
The employee was examined pursuant to § 11A on July 6, 1993 and February 14, 1995. (Dec. 453.) The examiner opined that the left shoulder injury was causally related to the 1988 incident, and the right shoulder injury was causally related to the 1992 incident. (Dec. 454.) He restricted the employee from overhead lifting and from lifting anything over ten pounds as of the 1993 examination, and over twenty pounds as of the 1995 examination. (Dec. 453-454.) The § 11A examiner opined that the employee was partially disabled from the July 6, 1993 examination and onward, with brief periods of total disability after the employee's two surgeries. (Dec. 455.) The judge found the impartial reports adequate and adopted the opinions expressed therein. (Dec. 458, 463.)
The judge found that the employee had experienced six distinct periods of incapacity since his last day of work on August 3, 1992. The first two the judge attributed to the 1992 right shoulder injury, which the judge found to have occurred. (Dec. 463.) The judge found the employee entitled to § 34 incapacity benefits for the period of August 3, 1992 to July 5, 1993, and assigned a weekly compensation rate of $511.72, 60% of the stipulated average weekly wage for that post-1991 industrial injury. (Dec. 458-459.) See G.L.c. 152, § 34, as amended by St. 1991, c. 398, § 60.
The second period of incapacity that the judge found — also attributable to the 1992 right shoulder injury — ran from July 6, 1993, the date of the first § 11A examination, until December 3, 1993, the date of the employee's left shoulder surgery. For this period of incapacity, the judge assigned the employee an earning capacity which he calculated yielded a weekly compensation rate of $383.80, based on taking 75% of the maximum § 34 rate under the post-1991 version of § 35. See G.L.c. 152, § 35, as amended by St. 1991, c. 398, § 63 (weekly compensation under partial incapacity provisions may not be in excess of 75% of employee's § 34 rate of compensation). (Dec. 458-459.)
The judge next found a six week period of total incapacity following the employee's December 3, 1993 left shoulder arthroscopy, based on the impartial physician's opinion. As the left shoulder injury derived from the 1988 incident, the judge assigned the appropriate rate of compensation based on that date of injury, the $411.00 maximum weekly compensation rate then applicable. See G.L.c. 152, § 1 (10). (Dec. 459-460.)
The insurer alleges no error regarding the judge's assignment of compensation rates for these three periods of incapacity. The insurer argues error beginning with the fourth incapacity finding. In reviewing those findings, we conclude that the judge applied an erroneous legal standard in his assessment.
As we stated just last year, "all industrial injuries that do not combine with a pre-existing non-compensable condition, as well as those that combine with a compensable pre-existing condition, are still assessed under the same "as is" standard that has governed industrial injuries since the 1913 inception of c. 152." Robles v. Riverside Mgmt., Inc., 10 Mass. Workers' Comp. Rep. 191, 195 (1996) (emphasis in original). Hence, the injuries to this employee must be evaluated under the "as is" standard. "[I]t is settled law that the employer takes his employee `as is,' that is, with whatever peculiar vulnerabilities to injury the employee may have." Leak v. F.A. Bassett Printing Co., 4 Mass. Workers' Comp. Rep. 206, 213 (1990), quoting Kelly's Case, 394 Mass. 684, 687 (1985). The 1988 injury was governed by this doctrine, as were all physical injuries at that time. As of December 23, 1991, of course, the § 1 (7A) definition of "personal injury" was amended to limit liability for work injuries that combine with pre-existing non-compensable conditions caused by injuries or diseases. See G.L.c. 152, § 1 (7A), as amended by St. 1991, c. 398, § 14 (such injuries compensable only to the extent that they remain a major but not necessarily predominant cause of disability). See Robles v. Riverside Mgmt., Inc., supra. Nonetheless, the 1991 amendment has no impact on the continued viability of the "as is" doctrine in cases such as the one before us, where a post-1991 injury combines with a pre-existing condition caused by a compensable injury; namely, the accepted 1988 left shoulder injury.
The judge, however, analyzed the employee's 1994 incapacity pursuant to the inapplicable 1991 amendment to § 1 (7A), based on the extent to which either injury was a "major" or "predominant" cause of the employee's medical disability. (Dec. 460-461.) He reached the conclusion that: "[T]he predominant cause of the shoulder disability [as of January 15, 1994] is the injuries (sic) caused by the 1988 [first] incident. Therefore, from this period forward, I apply the law [in effect at that time]." (Dec. 461.) The insurer properly contests the conclusions drawn.
Because the judge applied an erroneous legal standard to the evaluation of this case, we recommit this case for further findings as to the causal relationship of the claimed impairment beginning in 1994, in accordance with correct principles of law.
So ordered.
____________________________________ Sara Holmes Wilson Administrative Law Judge
____________________________________ Carolynn N. Fischel Administrative Law Judge