Opinion
BOARD No. 04039292
Filed: January 31, 1997
REVIEWING BOARD DECISION
(Judges Fischel, Wilson and Kirby)
APPEARANCES
Paul M. Moretti, Esq., for the employee on appeal.
Gerald A. Feld, Esq., for the employee at hearing.
Pamela Manson, Esq., for the insurer.
The employee appeals from a decision in which the administrative judge granted the insurer's request for discontinuance of his § 34 benefits for total incapacity. The employee contends, inter alia, that the judge's application of G.L.c. 152, § 1(7A), through which she concluded the employee's industrial injury no longer remained a major cause of his present incapacity, was erroneous. Although we reject the several narrow arguments raised by the employee, we must remand the case for further findings regarding the application of § 1(7A), due to problems we see in the judge's construction of that confounding statute.
General Laws c. 152, § 1(7A), as amended by St. 1991, c. 398, § 14, states in pertinent part:
If a compensable injury or disease combines with a preexisting condition, which resulted from an injury or disease not compensable under this chapter, to cause or prolong disability or a need for treatment, the resultant condition shall be compensable only to the extent such compensable injury or disease remains a major but not necessarily predominant cause of disability or need for treatment.
The employee, an obese, fifty-nine year old, lifetime laborer, was injured at work after he spent two weeks loading and unloading seventy to one hundred pound sandbags. On October 6, 1992, he experienced pain in his stomach and back. The next day he was diagnosed as having an incisional hernia and a mild back strain. (Dec. 3-4.) The insurer accepted the hernia injury, which was repaired on April 16, 1993. (Dec. 2, 5.) The hernia is not a factor in the employee's inability to return to work. (Dec. 5.)
The insurer filed a complaint for discontinuance of weekly incapacity benefits, which was denied at conference on January 11, 1994. The insurer appealed to a hearing de novo. (Dec. 2.) At hearing, the insurer denied the occurrence of a work injury and disability causally related to the employee's alleged back strain. The insurer also denied that the employee's back injury, if it occurred, constituted a personal injury under the relevant definition provided in G.L.c. 152, § 1(7A). (Dec. 2.) See note 1,supra.
The employee underwent a medical examination pursuant to G.L. c. 152, § 11A. The judge found the report prepared as a result of that examination to be adequate. (Dec. 3.) The § 11A physician diagnosed the employee as having a persistent low back strain/sprain syndrome, clinically insignificant multiple level disc bulging and long standing, significant exogenous obesity. (Dec. 5.) The § 11A physician opined that the back strain that occurred at work was one of four factors causing the employee's ongoing low back pain. The other factors cited by the doctor were the employee's age, his long-term employment in the construction industry, and his long-standing obesity. (Dec. 6.) Regarding the employee's obesity, the doctor noted, and the judge found, that the employee weighed over two hundred and fifty pounds and stands five feet seven inches, and that he has an extremely pendulous abdomen causing him to pitch forward slightly. The doctor opined that the employee's obesity could cause the type of symptoms that he exhibited at the examination, but that his work for the employer was a major contributing factor in the emergence of the low back symptoms. (Dec. 6-7.)
The judge concluded that the employee had suffered a back injury while lifting sandbags over a two week period in September-October 1992. The judge, however, further concluded that this back injury was no longer a major cause of his ongoing disability. Instead, the judge determined that the employee's continuing symptoms were the result of a chronic predisposing condition brought about by the employee's age, long term employment in the construction industry and long-standing, significant obesity. As a result, the judge concluded that the employee's present incapacity was not causally related to his industrial injury, since that injury was no longer compensable under the relevant provisions of § 1(7A). (Dec. 7-8.) The judge authorized the insurer to discontinue payment of weekly incapacity benefits. (Dec. 9.)
The judge assigned October 7, 1992 as the date of injury. (Dec. 7.) We note a minor discrepancy between the assignment of that date of injury and the subsidiary findings. On October 7, 1992, the employee was diagnosed as having suffered an industrial injury the day before. (Dec. 3-4.) Therefore, October 6, 1992 is the proper date of injury.
As an initial matter, we reject the employee's argument that the decision is incapable of review, due to its recitation of testimony in lieu of proper subsidiary findings of fact. While we note that the judge's medical findings of fact closely track the testimony of the § 11A physician in his report and at his deposition, this does not constitute "recitation." There is, in fact, a marked paucity of the telltale indicia of recitation that can render a decision unreviewable: namely, the witness "testified," "stated," "admitted," "insisted," and the like. See Leveille v. AT T Communications, Inc., 9 Mass. Workers' Comp. Rep. 508, 511 n. 4 (1995). In the instant decision, we understand the judge to find the facts as set out in her subsidiary findings.
The employee specifically attacks the judge's findings, based on the prima facie medical evidence of the § 11A examiner, that there was no "specific back injury," but that the employee did indeed sustain "a personal injury arising out of and in the course of employment on October 7, 1992." (Dec. 6, 8.) The employee asserts that such findings are conflicting, inconsistent and confusing. They are not. The judge appropriately found that the employee experienced pain in his lower back as a result of working for two weeks lifting heavy sandbags. (Dec. 4.) This constituted a c. 152 "personal injury," with regard to the initial emergence of the employee's lower back symptomatology. (Dec. 7-8.) The judge's finding that there was no specific event is not pertinent, as such is not required for a finding of a personal injury under the Act. See Zerofski's Case, 385 Mass. 590, 594-595 (1982) (industrial injury can 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"). Therefore, the challenged finding is, at most, superfluous.
The employee's related argument that the judge failed to apply the proper legal analysis under Zerofski's Case, 385 Mass. 590 (1982), is simply a reiteration of his argument regarding his purported confusion over the findings on the "specific work injury." We see no error in the judge's omission of the Zerofski "magic words." We summarily affirm the decision as to that argument.
The employee's contention regarding the application of § 1(7A) in the instant decision is similarly misplaced. The employee urges that the judge must make findings regarding the issue of whether there was a prior compensable injury or disease involved in this case. We think that would be a pointless exercise. There was no evidence adduced of a work injury or disease for which compensation was paid, prior to the subject October 1992 industrial injury. If this case were, in fact, governed by the "successive insurer" doctrine, such evidence was not brought forward at the hearing. See Rock's Case, 323 Mass. 428, 429 (1948) (where employee sustains two compensable injuries, insurer on the risk at the time of second injury liable for payment of entire compensation). We will not remand the case for a determination not placed at issue in the first hearing.
Nonetheless, we do see a pivotal issue regarding the application of § 1(7A) in this case that, while not precisely argued, is frankly too fundamental to disregard. The judge found that "the [employee's] symptoms are as a result of a chronic predisposing condition brought about by the employee's age, long term employment in the construction business and long-standing significant obesity." (Dec. 7.) Based on this finding the judge went on to conclude:
Thus, while the work the employee did lifting sandbags weighing between seventy and one hundred pounds, may have been a major contributing factor in the initial emergence of the low back symptoms, I do not find that it is a major cause of the employee's continued, ongoing disability. I find instead that the employee's continued ongoing disability is a pre-existing condition. Because the employee's initial compensable injury is not a major cause of the ongoing disability, it is not compensable under the Act. (Dec. 7-8.)
In reaching this conclusion, the judge relied on the opinion of the § 11A physician. (Dec. 6.) We do not gainsay the judge's reading of the medical evidence. The employee's age and work history, however, while clearly relevant to the physician's assessment, are not appropriate factors to be considered under the § 1(7A) definition of "personal injury." Age and work history per se are not included within the § 1(7A) concept of "a pre-existing condition, which resulted from an injury or disease not compensable under this chapter . . . ." Is age "an injury or disease?" Is any particular employee's work history "an injury or disease?" We think not. The judge's inclusion of these non-medical factors into the § 1(7A) "pre-existing condition" category is error. We remand the case for the judge to look again at the question of the causal relationship between the employee's industrial injury and his present incapacity, without weighing age and work history as "pre-existing conditions" under the § 1(7A) "major cause" analysis for noncompensable/compensable combination injuries.
Age and work history are, of course, factors to be weighed in the judge's incapacity analysis. See Frennier's Case, 318 Mass. 635 (1945). Alternatively, if the administrative judge views the work history evidence as repetitive trauma in the sense of multiple mini-injuries, it may indeed be considered as part of a compensable injury that, together with the final trauma, culminated in incapacity.
We must point out, nevertheless, that the remaining factor the judge listed as a § 1(7A) "pre-existing condition, which resulted from an injury or disease not compensable under this chapter," the employee's significant long-standing obesity, stands on a different footing than age and work history. The medical evidence, supplied exclusively by the § 11A physician in this case, specifically addressed that pre-existing condition of obesity. The judge must assess the medical evidence to determine whether this employee's undisputed obesity should be classified as a "pre-existing condition, which resulted from a . . . disease not compensable under this chapter," that combined with the compensable injury, within the meaning of § 1(7A).
The impartial medical report lists as one of four diagnoses, "Significant exogenous obesity longstanding." (Ex. 3.) The § 11A physician opined in his report and at his deposition that "at 250 pounds, five foot seven . . . I would classify him as unfit for heavy construction work if he didn't have a back problem." (Dep. 22.) The doctor observed at the examination that the employee "has a large pendulous abdomen which significantly inhibits his ability to move about." (Ex. 3.) The doctor also stated, "Certainly it's commonly accepted that a person with an obese abdomen with all the forward weight, that this can lead to the type of symptoms that I found . . . at the time of the examination." (Dep. 17.)
The only authority we find in the Massachusetts case law addressing obesity as a disease held on the facts of the case that morbid obesity can reasonably be found to be a physical impairment serving as the basis for inclusion as a "disability" under the Rehabilitation Act of 1973, as amended in 29 U.S.C. § 794. Cook v. State of Rhode Island, Dept. of Mental Health, Retardation, and Hospitals, 10 F.3d 17 (1st Cir. 1993). The decision is instructive in its observation that "[the plaintiff] presented expert testimony that morbid obesity is a physiological disorder involving a dysfunction of both the metabolic system and the neurological appetite-suppressing signal system, capable of causing adverse effects within the musculoskeletal, respiratory, and cardiovascular systems." Id. at 23.
Cook used the definition of morbid obesity as set out in the Merck Manual — more than twice optimal weight. Cook at 20-21, n. 1. See Merck Manual, 981 (16th ed. 1992). We note that morbid obesity is not synonomous with obesity.
Frierson, Obesity as a Legal Disability Under the ADA, Rehabilitation Act, and State Handicapped Employment Laws, Labor Law Journal 286-296 (May 1993), argues that obesity often constitutes an inherited physiological disorder that is involuntary.
Id. at 295.
Other law review authors have compiled references to authorities and research data to support the argument that obesity, whether moderate, severe or morbid, is a disease that may be the result of involuntary genetic, physiological or psychological factors. See Baker, Comment, The Rehabilitation Act of 1973: Protection of Victims of Weight Discrimination, 29 UCLA L. REV. 947, 948-952 (1982); Zioze, Employment Law — Morbid Obesity Considered Perceived Disability Under Section 504 of the Rehabilitation Act, 28 Suffolk Univ. L. REV. 826-827 (1994); Facial Discrimination: Extending Handicap Law to Employment Discrimination on the Basis of Physical Appearance, 100 HARV. L. REV. 2036 n. 5 (1987).
The question of the classification of obesity as a preexisting disease under § 1(7A) undoubtedly differs from the strict requirements that qualify as a "disability" under federal law. If, based on medical evidence, the judge determines that the employee's obesity is of such a nature that it reasonably can be considered a pre-existing condition — a "disease" under § 1(7A) — she must then analyze whether the industrial injury combined in any way with this pre-existing condition, and whether it "remains a major but not necessarily predominant cause of disability or need for treatment." See Robles v. Riverside Management Co., 10 Mass. Workers' Comp. Rep. 191 (1996). As discussed above, the judge must disregard the employee's age and work history per se when engaging in this § 1(7A) analysis.
The case is remanded for further findings consistent with this opinion. The judge may entertain either party's request for a declaration of inadequacy of the impartial report, or complexity of the medical issues. See O'Brien v. Blue Cross/Blue Shield, 424 Mass. 16 (1996).
So ordered.
______________________________ Sara Holmes Wilson Administrative Law Judge
______________________________ Carolynn N. Fischel Administrative Law Judge
______________________________ Edward P. Kirby Administrative Law Judge
Filed: January 31, 1997