Opinion
BOARD No. 08227190
Filed: July 8, 1997
REVIEWING BOARD DECISION
(Judges Fischel, Wilson and Levine)
APPEARANCES
Ronald L. St. Pierre, Esq., for the employee.
Stephen P. Rowley, Esq., for the self-insurer at hearing.
David W. Perry, Esq., for the self-insurer.
The employee appeals from a decision in which the administrative judge awarded closed periods of weekly benefits under §§ 34 and 35 on an initial liability claim. (Dec. 30.) The employee argues that the judge miscast the causation opinion of Dr. Charles A. Boucher, and based his termination of all weekly incapacity benefits on that errant view of the medical evidence. We agree that the judge did misconstrue the expert's opinion. Because that medical opinion can support only one result as of the termination date, we reverse the termination of incapacity benefits. See Mederios v. San Toro Mfg., 7 Mass. Workers' Comp. Rep. 66, 68 (1993). We recommit the case for an assessment of the employee's capacity to earn substantial wages since the cessation of benefits.
The employee was employed by the City of Lynn as the Commissioner of Public Works, a job that entailed multiple responsibilities including management of the golf course, the stadium commission, parks/tree warden, trash pick up and pest control. (Dec. 6.) He was called upon to maintain working relations with the City Council, the Mayor, and was in charge of all personnel matters in the Department of Public Works, overseeing approximately one hundred permanent employees. (Dec. 7-8.) The job was a very stressful one. (Dec. 8.)
On November 28, 1990, the employee was at a particularly stressful meeting in which he was called upon to address numerous and long-standing complaints regarding trash pickup by the company contracted to do that service. (Dec. 8, 9, 11.) He felt a pain going down his right arm after taking a sip of tea. (Dec. 9.) The pain increased and, thinking that he might be having a heart attack, the employee left and went directly to the Union Hospital. (Dec. 9.)
The employee was transferred immediately to Massachusetts General Hospital, where he was diagnosed as having a blockage of his coronary artery. Id. The employee underwent two angiograms and an angioplasty, performed by Dr. Boucher to clean out the blocked artery. Id. The employee underwent a period of cardiac rehabilitation, during which time he worked at home on a computer doing the best he could to produce budgets for the DPW. Id. He worked on a part time basis this way from February to April 1991.Id. During this period of work the employee had chest pains and was afraid of having a heart attack, because he could not deal with stress. (Dec. 10.) He stopped working altogether in April 1991. (Dec. 12.) The employee had another angioplasty in July 1992, and has experienced occasional chest pain since. (Dec. 10.)
The self-insurer resisted the employee's claim for workers' compensation benefits based on the November 28, 1990 work incident. (Dec. 2, 3, 5.) The claim was denied at the § 10A conference, and the employee appealed to a full evidentiary hearing. (Dec. 2.) The employee was examined pursuant to the provisions of G.L.c. 152, § 11A on April 9, 1993. (Dec. 3.) The judge allowed the employee's motion to declare the § 11A medical examiner's report inadequate. Id. The parties therefore introduced their own medical testimony. (Dec. 4.)
The judge found the employee's account of his industrial accident — his experiencing a heart attack while attending the stressful November 28, 1990 meeting — to be credible. (Dec. 8, 26.) The judge adopted the opinion of Dr. Julian Aroesty, the § 11A examiner, and the opinion of Dr. Allen Balsam, that the stress experienced by the employee during that meeting caused the employee's heart attack. (Dec. 27.) The judge adopted Dr. Aroesty's opinion that the employee suffered a temporary total disability as a result of the industrial accident. (Dec. 28.) The judge rejected Dr. Aroesty's opinion that the employee was able to return to his past work. Id. He adopted the opinion of the self-insurer's expert, Dr. Lawrence Baker, that the employee was partially disabled as of his July 18, 1992 examination. Id. The judge adopted the opinion of the employee's treating physician, Dr. Boucher, whom the judge understood to opine that "any work restrictions that are placed on the employee at the present time are due to his pre-existing coronary disease." Id.
Dr. Boucher advised the employee to avoid extremes of any physical activity or emotional stress, and to avoid extremes of temperature, hot and cold. (Boucher Dep. 8, 12-13.)
As a result, the judge concluded that the employee had sustained his burden of proving temporary total incapacity from the date of injury until July 18, 1992, with the stipulated exception of the two months of part time work performed by the employee from February to April 1991, for which the judge assigned a $550.00 earning capacity. (Dec. 29-30.) The judge concluded that the employee was partially incapacitated from July 18, 1992 onward, but that such incapacity was caused by the employee's underlying coronary disease, not the industrial injury. (Dec. 28, 29.)
The employee's pre-injury average weekly wage was $1,139.04. (Dec. 4, 30.)
The employee appeals to the reviewing board. He contends that Dr. Boucher did not state, as the judge reports, that the employee's present restrictions were not causally related to his industrial myocardial infarction.
In order to assess the validity of the contention, we must review the deposition testimony of Dr. Boucher. A fair reading of the deposition supports the employee's contention that Dr. Boucher did causally relate the employee's present restrictions to the work related aggravation as well as to the underlying condition. The judge's finding that Dr. Boucher's adopted opinion did not causally relate the employee's present work restrictions to the industrial myocardial infarction is without support in the evidence and thus is arbitrary and capricious.
Dr. Boucher testified, in pertinent part:
Q: So it's the underlying coronary artery disease to which you relate any type of restriction [the employee] may have had upon him after November 1990, correct?
A: That's correct; and, the —
. . .
Q: Okay. When . . . do you think he was back to what he was on November 27th, based upon your review of the records and your treatment in this case?
A: Well, I'm not sure that he is because he has a lesion there now which has — which has aggravated and — It's hard to say.
. . .
Q: When [counsel] asked you questions about [the employee's] restrictions, and [it was] stated that they were related to his coronary artery disease, what do you include in your definition of coronary artery disease?
A: I include in the definition, the layering of arteriosclerosis in a coronary artery which is normally a nice, smooth thin lining.
Q: Do you . . . include the impact of the myocardial infarction, also?
A: That's part of coronary disease, sure.
Q: With respect to the incident of November 28, [1990], you testified that there was an aggravation of his pre-existing condition. What did you mean by aggravation?
[Objection overruled.]
A: Well, on the basis of his — what he did clinically, he did something to that circumflex artery to cause it to manifest a narrowing and impede blood flow which is why he developed the pain which is why he went to the hospital — to Union Hospital.
Q: And the restrictions that you gave him, would they be related to the aggravation?
A: Sure; the aggravation as well as the underlying condition in general —
(Boucher Dep. 19, 24, 36-37.)
This case is governed by the simple contributing cause standard that preceded the changes wrought by the 1991 amendments to § 1 (7A). Under that "as is" standard of causation, "[a]n aggravation or acceleration of a pre-existing disease or infirmity to the point of disablement is as much a personal injury as if the work had been the sole cause. This is so, even though there is no evidence by just how much . . . disability had been accelerated." L. Locke, Workmen's Compensation, § 173, at 178 (2d ed. 1981). See Long's Case, 337 Mass. 517, 521 (1958). An employee whose claim falls within the "as is" standard needs only show that the employment was one of the contributing causes of an injury. Cadigan v. M.W.R.A., 10 Mass. Workers' Comp. Rep. 844, 846 (1996). "As is" liability under the Act attaches for an aggravation of a preexisting medical condition so long as the industrial aggravation is "even to the slightest extent a contributing cause of the subsequent disability" of the employee.Massarelli v. Acumeter Labs, 10 Mass. Workers' Comp. Rep. 703, 706 (1996). Under this standard, the adopted expert opinion of Dr. Boucher can support only one result. See Newton v. Merrimac Paper Co., 10 Mass. Workers' Comp. Rep. 499, 501-502 (1996).
We affirm the judge's finding that the employee sustained a work related myocardial infarction on November 28, 1990, and that he was totally disabled until July 18, 1992. (Dec. 29.) We reverse the termination of weekly incapacity benefits as of July 18, 1992, because the opinion of the adopted expert, Dr. Boucher, was that the employee's partial incapacity as of that time was still causally related to the industrial injury. See Newton v. Merrimac Paper Co., supra, at 501-502; see Mederios v. San Toro Mfg., supra, at 68.
We recommit the case for further findings on the work injury's impact on the employee's earning capacity as of July 18, 1992 and continuing. Because the administrative judge is no longer a member of the department, we transfer the case to the senior judge for reassignment. The new judge will consider the employee's earning capacity as of July 18, 1992.
So ordered.
__________________________ Carolynn N. Fischel Administrative Law Judge
__________________________ Frederick E. Levine Administrative Law Judge
__________________________ Sara Holmes Wilson Administrative Law Judge Filed: July 8, 1997