Summary
In Diliberto v. New England Elec. Co., 11 Mass. Workers' Comp. Rep. 123 (1997), aff'd sub nom. Aetna Life Cas. Ins. Co. v. Commonwealth, 50 Mass. App. Ct. 373 (2000), we concluded that lump sum settlements may be reviewed under a standard of reasonableness for the purposes of determining whether § 37 reimbursement is due.
Summary of this case from WALSH v. GTE GOVERNMENT SYSTEMS, NoOpinion
BOARD Nos. 059961-90, 021751-85
Filed: January 31, 1997
REVIEWING BOARD DECISION
(Judges Wilson, Fischel and Kirby)
Joseph Bachorowski, Esq., for the employee.
W. Frederick Uehlein, Esq., for the insurer (Aetna).
Paul R. Ingraham, Esq., for the Workers' Compensation Trust Fund.
Aetna Life and Casualty Insurance Company ("Insurer") and the Workers' Compensation Trust Fund ("Trust Fund") cross appeal a decision regarding reimbursement under § 37 for the insurer's payment on an industrial injury subsequent to a physical impairment. In that decision the administrative judge determined that 1) the Trust Fund was entitled to raise, as a defense, the occurrence of the subsequent industrial injury within the meaning of § 37, liability for which the insurer had accepted in the employee's original claim by way of a § 48 lump sum agreement, and 2) the subsequent industrial injury, attributable in this case to prolonged sitting, had indeed occurred entitling the insurer to reimbursement from the Trust Fund. We say at the outset that these issues of first impression are difficult.
At the time of the 1986 injury at issue here, § 37 provided in relevant part:
Whenever an employee who has a known physical impairment which is due to any previous accident, disease or any congenital condition and is, or is likely to be, a hindrance or obstacle to his employment, and who, in the course of and arising out of his employment, receives a personal injury for which compensation is required by this chapter and which results in disability that is substantially greater by reason of the combined effects of such impairment and subsequent personal injury than that disability which would have resulted from the subsequent personal injury alone, the insurer or self-insurer shall pay all compensation provided by this chapter. The insurer or self-insurer shall, however, be reimbursed by the state treasurer from the trust fund created by section sixty-five in an amount equal to seventy-five per cent of all compensation paid subsequent to that paid for the first one hundred and four weeks of disability.
. . . .
The attorney general shall in all instances have the authority to defend claims against the fund. No liability for any case arising under this section shall be redeemed by a lump sum payment as provided in section forty-eight, unless the attorney general or his designee has been given an opportunity to appear and be heard on behalf of the fund, but reimbursement from the trust fund may be made without the necessity of further approval of the lump sum by the state treasurer. No reimbursement shall be made covering the first one hundred and four weekly payments or for medical benefits during that period, whether paid under an agreement, decision, or lump sum settlement. St. 1973, c. 855, § 2; St. 1985, c. 572, §§ 48, 49.
The insurer argues that the judge erred by allowing the Trust Fund even to raise the issue of the occurrence of that injury, and that he also erred by failing to award § 50 interest and a § 13A attorney's fee to the insurer. We summarily affirm the judge's decision to deny interest and a fee on this § 37 claim, as there is no provision for either in the statute. We also affirm the decision, as to the Trust Fund's standing to litigate the occurrence of the subsequent injury, notwithstanding the insurer's prior acceptance of liability therefor. The Trust Fund appeals the judge's finding of that work injury. We agree that the finding cannot stand and, on the basis of Zerofski's Case, 385 Mass. 590 (1982), reverse the award of § 37 reimbursement.
The employee worked for the employer, New England Electric, for thirty-two years. During that time he suffered a series of industrial injuries to his back, the first being in 1960, while performing heavy physical labor. As of 1977, the employee started doing clerical work, ending up in customer service and billing in 1981. The employee was able to perform this job without incident until 1985. (Dec. 13-15.) On January 7, 1985, the employee reinjured his back while moving files. The employee was incapacitated due to this incident, and paid compensation until April 23, 1985, when he returned to work with the restriction that he not do any filing. (Dec. 15.)
The employee worked at his sedentary job without incident until the winter of 1986. At that time he began experiencing renewed episodes of back pain, coinciding with prolonged sitting and an increased work load due to less staffing. The employee requested a chair with arm support, but did not receive one. By late March or early April 1986, the employee could no longer work full time due to his increasing pain. The employee reported his injury to his supervisor, and last worked for the employer on April 7, 1986. (Dec. 16-17.) The insurer voluntarily commenced payment of compensation benefits based on the January 7, 1985 date of injury. (Joint Ex. 3.)
On November 13, 1990, the employee filed a claim for compensation benefits under §§ 34, 34A and 34B, based on the April 1986 date of injury. The employee subsequently filed a new claim for the same compensation benefits on May 6, 1991. The claims were denied by the insurer and were subsequently denied at conference by an administrative judge. The employee appealed that denial to a hearing de novo. (Dec. 3.)
The insurer moved for joinder of the Trust Fund to the claims of the employee on August 16, 1991. The insurer also filed a claim against the Trust Fund for reimbursement under § 37, which petition was filed with the Attorney General's office on August 23, 1991. Pursuant to 452 CMR 3.07, the insurer then requested a hearing on the petition for reimbursement. Over the next two years, a number of procedural oddities occurred that are not relevant to the issues on appeal. The insurer's claim for reimbursement under § 37 and motion to join the Trust Fund to the employee's § 34A claims then came before the present administrative judge, who allowed the joinder and consolidation of the claims on April 28, 1994. (Dec. 4, 6; Answer to Motion to Join.) By that time, the employee and insurer had settled the § 34A claims by Lump Sum Agreement, which settlements were approved on March 8, 1994. (Dec. 5.)
The employee was still prosecuting two claims, one for the January 7, 1985 date of injury, and the other alleging the April 7, 1986 date of injury.
The claim for benefits attributable to the April 7, 1986 date of injury was settled for $80,000.00, while the parallel claim for the same benefits attributable to the January 7, 1985 date of injury was settled for $1.00. (D.I.A. Ex. 1.) There is no issue in this case regarding notice to the Trust Fund of the settlement of these claims, as the Trust Fund was present at the March 8, 1994 lump sum conference. (Dec. 6; Answer to Motion to Join.)
We note that the Trust Fund's argument that the judge's joinder of the § 37 claim and the Trust Fund to a claim or claims that had already been settled has merit as a matter of formality. However, as the insurer had already filed an independent claim for reimbursement under § 37, and could have simply proceeded with that claim rather than join it to the employee's, we will not give it any more attention than this. We summarily affirm the judge's joinder of the Trust Fund into this proceeding as whatever the formal error, it was harmless. None of our analysis infra turns on any distinction between joinder of the Trust Fund and the § 37 claim to a different claim, and a straight forward § 37 claim against the Trust Fund.
The § 37 claim was heard on three days from July 18, 1994 until March 14, 1995. The stipulated issues relevant to this appeal were listed as follows:
1. Does the [Trust Fund] have standing (sic) raise as a defense to the "Insurer's" claim for reimbursement pursuant to Section 37, that a personal injury did not occur on April 7, 1986?
2. Did the Employee, Joseph Diliberto, suffer a "subsequent personal injury" pursuant to M.G.L.c. 152, Section 37 on April 7, 1986 or simply a recurrence of the symptoms of his previous compensable injury of January 5, 1985. (Dec. 5, quoting Joint Exhibit 1.)
The decision and the briefs use January 5 and January 7, 1985 interchangeably as the date of that injury.
The judge answered both questions affirmatively and awarded the insurer the § 37 reimbursement sought. (Dec. 28.) We discuss each seriatim.
The Trust Fund may raise the issue of whether a subsequent industrial injury occurred in its defense of a § 37 claim for reimbursement, where the underlying employee's claim was settled by § 48 lump sum agreement
Although it prevailed at hearing, the insurer argues to the reviewing board that it should not have been put through the exercise in the first place. This is because, it asserts, the issue of primary liability as between the employee and insurer was no longer open to litigation, having already been established by the insurer's acceptance of the case through its execution of the lump sum agreement. We disagree with the insurer's position on the facts of this case, where the underlying liability was redeemed by lump sum agreement without a hearing of the claim on the merits. We conclude that the Trust Fund has standing to litigate that element of proof for § 37 reimbursement, namely the occurrence of an industrial injury subsequent to a known physical impairment (a "second injury") under the circumstances presented by this case.
Although there were two lump sum agreements, one was only for $1.00. We will therefore refer to the lump sum agreement in the singular, that being the one that paid the employee $80,000.
We leave for another day the question of the Trust Fund's standing to argue "liability" — the occurrence of the "second injury" — where the issue has been previously determined by a hearing decision after a full evidentiary hearing that meets the requirements of due process.
The insurer accepted and redeemed liability in the present case for an industrial injury in April 1986 by way of a lump sum agreement, which only the employee and insurer signed; the Trust Fund was not a party to the agreement. G.L.c. 152, § 48 governs lump sum agreements and provides, in pertinent part:
Under the conditions and limitations specified in this chapter, the insurer and employee may, with the written consent of the employer if such employer is an experience modified insured, by an agreement pursuant to section nineteen, redeem any liability for compensation, in whole or in part, by the payment by the insurer of a lump sum amount. . . . [W]here any party requests that such agreement be approved by an administrative judge or administrative law judge prior to the filing of such agreement with the department, a lump sum agreement shall not have been perfected until and unless approved by an administrative judge, or administrative law judge as being in the claimant's best interest. (emphasis supplied).
The second sentence of the above-quoted language describes what is known as the "lump sum conference," the informal, non-evidentiary proceeding where counsel for the signing parties make presentations as to why the proposed agreement is in the employee's best interest, and the judge conducts a brief interview of the employee to ascertain that he or she understands the ramifications of the agreement. The merits of the claim are not at issue at the § 48 lump sum conference. The Trust Fund was present at the conference, as contemplated in § 37's statutory scheme. However, because there is no evidentiary record of the lump sum conference, the nature and extent of its participation can only be a matter of speculation. The conclusion appears inescapable, in any event, that since the "best interest" of the employee is the focus of the conference (barring lien discharges under § 46A not at issue here), the Trust Fund's role therein is necessarily circumscribed.
"No liability for any case arising under this section shall be redeemed by a lump sum payment as provided in section forty-eight, unless the attorney general or his designee has been given an opportunity to appear and be heard on behalf of the fund." G.L. c. 152, § 37, as amended by St. 1985, c. 572, §§ 48, 49.
We note the following ambiguous provision in the narrative attached to the lump sum agreement signed by the employee and insurer: "This settlement agreement . . . does not attempt to resolve the outstanding claim of the insurer and/or employer for reimbursement from the Workers' Compensation Trust Fund for benefits paid because of a 'second injury.'" (D.I.A. Ex. 1.) We are frankly at a loss to see what this sentence adds to the agreement, as the lump sum agreement between the employee and the insurer could not "resolve the outstanding claim" between the insurer and the Trust Fund, in any event. A clear statement could establish an insurer's intent to waive certain § 37 defenses. But that is not what we see here.
By way of example, the Trust Fund's objections to an insurer's "giving away the store" in a lump sum agreement logically should have no impact on the judge's determination of the "best interest" of the employee, which such an agreement certainly would serve. Such objections might give an insurer pause as to its settlement of the case, if the expectation of reimbursement is a factor in its decision to settle. In the present case, however, we may safely assume that the insurer was not swayed by whatever the Trust Fund represented at the lump sum conference.
The insurer argues that its acceptance of liability in the lump sum agreement with the employee forecloses a "relitigation" of the issue in the § 37 claim. (Insurer's Brief 14.) It is our view that nothing in the § 37 claim was "relitigated" because nothing in the primary claim was litigated on the merits. The initial case between the employee and insurer was settled without a merits hearing. Certainly the lump sum conference, where the judge determines, based on the non-evidentiary presentations of the parties, whether the settlement is in the best interest of the employee, is not a litigation of the merits of the claim. The Trust Fund's presence at the lump sum conference does not confer upon that informal proceeding any status of a merits determination of the issues involved.
The insurer cites Ruffino v. Isadore Rosen Sons, 142 A.D.2d 177, 535 N.Y.S.2d 488 (1988), in support of its argument against "relitigation." Ruffino is inapposite, however, as there was a hearing and decision on the merits of the underlying claim in that case. Id. at 178-179.
The 1986 version of § 37, applicable to this case, bestows upon the attorney general or his designee "the authority to defend claims against fund." In order to receive reimbursement under § 37, the insurer must prove that it paid more than two years of compensation to an employee with:
(1) "a known physical impairment which is due to any previous accident, disease or any congenital condition [which]"
(2) "is or is likely to be, a hindrance or obstacle to his employment, and"
(3) "who, in the course of and arising out of his employment, receives a personal injury for which compensation is required by this chapter and"
(4) "which results in a disability that is substantially greater by reason of the combined effects of such impairment and subsequent personal injury than that disability which would have resulted from the subsequent personal injury alone . . . ." G.L.c. 152, § 37, as amended by St. 1985, c. 572, §§ 48, 49 (emphasis added).
The insurer concedes, as indeed it must, that the Trust Fund can "defend claims" against it. In this case, however, the insurer would have it that the right and authority to defend extends only to three out of four of the statutory elements listed above, omitting the element corresponding to "liability," the occurrence of "a personal injury for which compensation is required by this chapter." (Insurer's brief 15.) The logic behind the proffered distinction eludes us. The lump sum agreement leaves open the question of whether the "compensation is required" within the meaning of § 37. And, as we already noted, there has been no hearing adjucation on the element of a compensable industrial injury, although we do not reach the question of how we would decide had there been such. In our view, the clear language of § 37 expressly affords the Trust Fund an opportunity to litigate all four of the standards set out above. We do not see why the Trust Fund should be constrained in its clear right to defend against reimbursement claims by the insurer's unilateral assertion of a self-proving "second injury" simply by virtue of its settlement of the employee's claim.
The insurer argues that the Trust Fund's role is analogous to that of "reinsurer." As such, it contends, the Trust Fund's standing to argue that no "second injury" occurred is contingent on its coming forward with evidence that the insurer's lump sum settlement of the employee's § 34A claim was in bad faith, or the product of collusion or gross negligence. (Insurer's Brief, 15-16.) We agree with the insurer that the Trust Fund does stand in a position of a partial reinsurer for insurers meeting the factual predicates of § 37. But the insurer cites no authority for its contention that a reinsurer must prove the willful or even fraudulent conduct implied by bad faith, collusion or gross negligence. We are not convinced that such a high standard obtains for a reinsurer to argue merits issues within the underlying claim.
In Friend Bros., Inc. v. Seaboard Surety Co., 316 Mass. 639, 642 (1944), the court addressed the question of whether an employer, which was self-insured for workers' compensation pursuant to the provisions of G.L.c. 152, § 25A, could lawfully enter into a contract for reinsurance, indemnifying it against catastrophic losses. Id. at 641. While the holding that the reinsurance contract was lawful is not relevant to the present case, the court's reasoning is of interest. The court stated:
Reinsurance has been defined as "an agreement to indemnify the assured, partially or altogether, against a risk assumed by . . . [it] in a policy issued to a third party." Royal Insurance Co. v. Vanderbilt Insurance Co., 102 Tenn. 264, 267. . . . Essentially it is a contract to indemnify one who has insured a risk. Boston Insurance Co. v. Globe Fire Insurance Co., 174 Mass. 229, 231. Allemannia Fire Insurance Co. v. Firemen's Insurance Co., 209 U.S. 326, 332.
Id. at 642. We therefore see an appropriate analogy to the disputed relationship between the insurer and Trust Fund: The Trust Fund as the "indemnitor" for the insurer/"indemnitee's" lump sum settlement of the employee's claim.
The general rule regarding the law of indemnity is that the indemnitee (here, the insurer) may enforce indemnification against the indemnitor (Trust Fund), even if it has concluded the primary claim with the third party (employee) by means of a settlement, without a trial on the merits.
Normally, our rule is that a person seeking common law indemnification may pursue the indemnification claim even if the claim is settled. [citations omitted]. "Indemnity may be had even though the indemnitee settled the claim against him without waiting for suit to be brought or judgment obtained." Hennessey, Torts: Indemnity and Contribution, 47 Mass. L. Q. 421, 424 (1962).
In addition to contract indemnity claims, the common law provides a right of indemnification in a negligence action to a person who "does not join in the negligent act but is exposed to derivative or vicarious liability for the wrongful act of another."Stewart v. Roy Bros., Inc., 358 Mass. 446, 459 (1970).
Fireside Motors, Inc. v. Nissan Motor Corp. of U.S.A., 395 Mass. 366, 370-371 (1985) (footnote added). Similarly, the applicable 1986 version of § 37 specifically provided for the Trust Fund's reimbursement to insurers when the underlying claim was settled by way of a lump sum agreement, as long as the agent of the fund "be given an opportunity to appear and be heard . . . ."
As discussed supra, however, the actual effect of Trust Fund's appearance at the informal lump sum conference would appear to be little more than notice to the insurer of the fund's intent to oppose or pay the claim for upcoming claim for reimbursement. We do not reach in this decision the question of how, if at all, the fund's failure to appear at the lump sum conference might effect the outcome of our analysis. We do note in passing, nevertheless, that the lack of any record of the lump sum conference could pose a problem for litigants raising the issue, barring a stipulation to that effect.
What, then, may a reinsurer or indemnitor raise in a defense of an action against it for indemnity on a primary claim that has been settled? The indemnitor can argue that the underlying claim was not meritorious. The indemnitee must demonstrate as part of his proof in the indemnity claim that he was legally obligated to pay that third party and that the settlement was reasonable. See Nolan and Sartorio, Torts § 438, at 187 (2d ed. 1981). We think it logically follows that, with regard to the § 37 reimbursement claim before us, the insurer must show that it was legally obligated to pay the employee, and that its lump sum settlement with the employee was therefore reasonable. Ipso facto, if the employee's claimed April 1986 injury was not compensable under the Act, the insurer's lump sum payment for that injury was unreasonable, and no reimbursement would be due. We see no basis for the insurer's requirement that the Trust Fund make showing of bad faith, collusion or gross negligence in order to raise the issue of whether that "second injury" occurred.
The cases that most clearly exemplify this principle involve an indemnitor's breach of the duty to defend the indemnitee as against a third party claim. In Monadnock Display Fireworks, Inc. v. Andover, 388 Mass. 153 (1983), the court held that Monadnock was entitled to recover as against the Town of Andover the amount of its settlement to a third party, based on a contract of indemnity.Id. at 158. The court's ruling hinged on the lower court's finding that the settlement was reasonable, which finding Andover did not contest. Id. at 157-158. In Berke Moore Co. v. Lumbermen's Mutual Casualty Co., 345 Mass. 66 (1962), the court determined that a settlement between the insured/indemnitee and a third party was no bar to that insured indemnitee's action against the insurer/indemnitor for the amount of the settlement and costs in defending. The court stated that the indemnitee (the insurer in the instant case) "should be able to take into consideration the likelihood of success or failure, the cost, uncertainty, delay, and inconvenience of trial as compared with the advantages of settlement. What is reasonable to do they should be permitted to do." Id. at 71 (emphasis added). The reasonableness of the settlement, therefore, is the focal point of the indemnity action. See New York Central Hudson River Railroad Co. v. T. Stuart Son Co., 260 Mass. 242, 249 (1927) ("The plaintiff [indemnitee], accordingly, must show that the settlement was fair and reasonable in view of the circumstances under the indemnity clause.") The necessary flip side to this analysis in the indemnity action is that the indemnitor can and obviously does raise the issue of the merits of the underlying claim — the potential liability that was settled out — as part of its defense of the indemnity action. This is precisely what the Trust Fund claimed a right to do in 37 claims with regard to the occurrence of the "second injury." We do not see that the Trust Fund was demanding too much when it exercised its one real opportunity to assert that the lump sum settlement between the insurer and the employee was unreasonable — that the insurer had paid for something that was not a "personal injury for which compensation is required by this chapter."
The insurer finally argues that the beneficial social policy underlying § 37, "to encourage the employment of persons who have previously suffered certain defined personal injuries by relieving the employer or the insurer from the burden of paying the entire compensation for further disability of the employee due to the combined effect of his previous injury and one later received in the course of his employment[,]" is thwarted by the view we adopt today. (Insurer's brief 19-20.) We disagree. We fail to see any beneficial social policy in encouraging insurers to pay on claims for which compensation is not due. We think that experience modified employers will be better served by vigilant claims adjustment practices by insurers, rather than by shifting the burden of paying questionable claims from premiums paid by employers to the insurer to the direct assessment paid by employers to the Trust Fund pursuant to G.L.c. 152, § 65.
Accordingly, we conclude that the judge did nothing arbitrary, capricious or contrary to law in allowing the Trust Fund to raise and litigate the element of § 37 addressing, for purposes of § 37 only, whether the employee "receive[d] a ["second"] personal injury for which compensation is required . . ." We turn now to the Trust Fund's issue on appeal: that no industrial injury occurred in April 1986.
Our determination that the Trust Fund has standing to raise as an issue the occurrence of the "second injury" in the § 37 reimbursement claim in no way effects the rights of the employee, whom the insurer voluntarily paid in the lump sum agreement. That liability was redeemed by that agreement and may never be reopened, regardless of the outcome in the reimbursement claim against the Trust Fund.
The Judge's finding of an industrial injury in April 1986 due to prolonged sitting was contrary to law.
The Trust Fund contends that there was no personal injury within the meaning of the Act that occurred on April 7, 1986, notwithstanding the insurer's acceptance and settlement of same. The Trust Fund urges that the decision is contrary to law in that it applies the analysis of Zerofski's Case, 385 Mass. 590 (1982), erroneously. We agree with the Trust Fund, and reverse the judge's award of reimbursement under § 37.
The judge's findings pertinent to the question of whether a subsequent industrial injury occurred as alleged in this case are on pages 19-25 of the decision and are summarized as follows:
The expert vocational opinion in evidence, and adopted by the judge, was that the employee's sitting for ninety-five percent of the day in a chair with no arms increased the risk of spine damage considering his pre-existing back condition, and that such factors comprised unique conditions of employment. (Dec. 20-21.) The expert medical opinion of the employee's treating physician, adopted by the judge, was that the employee's constant sitting between April 1985 and April 1986 caused a worsening of his symptoms and constituted an aggravation of his pre-existing back condition. (Dec. 22-23.) Based on these opinions and the testimony of the employee the judge concluded:
[T]he work condition of the Employee who is significantly handicapped, sitting in one position for extended periods of time against the advice of his doctor, doing the work of a decreasing staff, in an ergonomically inappropriate chair, and for over the period of a year, to be a unique work condition. This condition of employment of this particular Employee goes beyond the concept of the mere wear and tear that can occur in many occupations over an extended period of time.
For the same reasons . . . I also find that a new injury occurred in April of 1986 caused by the Employee's prolonged sitting. . . . The Employee's prolonged sitting, taking into consideration his already serious back condition, was not a common, human work activity . . . .
(emphasis supplied) (Dec. 24-25.) The judge thereby determined that the second prong of Zerofski's Case, supra, was satisfied, and awarded the insurer the § 37 reimbursement sought. The conclusion was wrong.
The oft-cited Zerofski's Case test of compensability under the Act reads:
To be compensable, the harm must arise either from a specific incident or series of incidents at work, or from an identifiable condition that is not common and necessary to all or a great many occupations. The injury need not be unique to the trade . . . [b]ut it must, in the sense we have described, be identified with the employment.
Id. at 594-595 (footnotes omitted). The Zerofski court, noting the delicate line between a compensable injury and mere "wear and tear," concluded that an employee with a pre-existing foot injury did not suffer a new compensable injury due to the wear and tear aggravation of that injury which indisputably occurred over a ten year period by prolonged standing and walking.
Zerofski's Case, id. is a successive insurer case where wear and tear over the years was found to be an aggravation that occurred payable by the first insurer on the risk and not a compensable injury for which the successive insurer was liable. Had the employee here not settled his claim stemming from the January 1985 injury, the insurer would be liable for compensation in April 1986 for a recurrence of injury.
There is nothing to distinguish these ten years of work from other occupations that Zerofski might have pursued. Prolonged standing and walking are simply too common among necessary human activities to constitute identifiable conditions of employment.
Id. at 595-596. The reviewing board applied the Zerofski analysis to a case of alleged compensable sitting, denying benefits therefor in Smick v. South Central Mass. Rehabilitative Resources, Inc., 7 Mass. Workers' Comp. Rep. 84 (1993). "The work-related activities the employee claims aggravated her back condition — sitting, driving, bending — are simply too common and necessary to a number of occupations to constitute identifiable conditions of employment subject to the Act." Id. at 88.
We view the instant case "as analytically similar to those cases in which recovery was denied because the disability resulted from wear and tear despite the employee's having engaged in a lengthy period of frequent activity." Adams v. Contributory Retirement Appeal Bd., 414 Mass. 360, 366-367 (1993). The judge's findings do not take this case of prolonged sitting out of theZerofski/Smick sphere of non-compensability. When the judge took into consideration the employee's "already serious back condition," he impermissibly wove the employee's pre-existing medical condition into the calculation of the "uniqueness" of the conditions employment. What the employee brings to the workplace activity, alleged as a compensable condition of employment, is irrelevant to the analysis of that work condition under Zerofski's Case. The doctrine of accepting the employee "as is," Madden's Case, 222 Mass. 487 (1916), has no import in the assessment of thenature of the work activity that allegedly cause the injury. So too, the adopted medical opinion that the prolonged sitting aggravated the employee's back condition is wholly beside the point. That fact could always be stipulated in these condition of employment cases with no effect on the outcome. It is the work activity qua "identifiable condition that is not common and necessary to all or a great many occupations" that is the sole focus of the analysis as to the occurrence of a work injury, not its effect on the employee.
In some cases work may be a contributing cause of injury, but only to the extent that a great many activities pursued in its place would have contributed. When this is so, causation in fact is an inadequate test.
Zerofski's Case, supra at 594 (emphasis added).
The sole finding that comes close to addressing the appropriate questions is the fact of the employee's having to sit in "an ergonomically inappropriate chair." Without addressing whether this single finding would be legally sufficient to transform sitting into an identifiable condition of employment, we think that the judge's reliance on this fact was misplaced. There is no expert medical or vocational opinion that adequately addresses the causal relationship of this fact to the employee's incapacity.
While we acknowledge the finding of an increased workload, we fail to see that this adds anything further to the already-noted finding that the employee sat for ninety-five percent of his time at work, i.e. "prolonged sitting."
Whether the employee sustained a personal injury by reason of the work done by him after his return to work on [April 23, 1985], and whether if he did there was a causal connection between the injury and the ensuing incapacity were not matters that could be determined by the [judge] from [his] own knowledge; these were matters calling for expert medical testimony. Sevigny's Case, 337 Mass. 747, 749 and the cases cited.
Casey's Case, 348 Mass. 572, 574 (1965). As the design of the chair was the only fact that might make the employee's incapacity reimbursable by the Trust Fund pursuant to § 37 as a matter of law under Zerofski's Case, an expert opinion had to address that fact. The medical expert was silent in this regard. The opinion of the vocational expert lacked any foundation to support her causation statement. She did not observe the chair and indicated no training in ergonomics or physiology that would qualify her to opine on the causal relationship between the structure of the chair and the employee's back condition. The insurer, therefore, did not meet its burden under § 37 of proving the occurrence of a personal injury under the Act on April 7, 1986. The judge's finding of such a personal injury was contrary to law. We reverse that finding and reverse his order that the Trust Fund reimburse the insurer under § 37 for payment on that alleged personal injury subsequent to physical impairment. The April 7, 1986 "injury" was a recurrence of the January 5, 1985 industrial injury, because it did not "arise out of" the employment as a matter of law. Zerofski's Case, supra at 594.
We reiterate that our decision in no way affects the Agreement to Pay Compensation and the Lump Sum Agreements, or the rights and obligations those agreements establish between the employee and insurer.
So ordered.
______________________________ Sara Holmes Wilson Administrative Law Judge
______________________________ Carolynn N. Fischel Administrative Law Judge
______________________________ Edward P. Kirby Administrative Law Judge
Filed: January 31, 1997 SHW/amt