Opinion
BOARD No. 05113691
Filed: October 23, 1996
REVIEWING BOARD DECISION (Judges McCarthy, Maze-Rothstein and Smith)
APPEARANCES
Robert F. Gabriele, Esq., for the employee at hearing.
Edward FitzGerald, Esq., for the employee on brief.
Jean M. Shea, Esq., for the insurer.
In this appeal we are presented with a two part claim. The employee contends that he suffers mental disability causally related to incidents which occurred at work and that he also suffers from work related, disabling cluster headaches.
Robert Lavin was fifty-one years old at the time of the hearing. He began his employment with Automotive Parts Warehouse ("APW") in 1978 doing sales and marketing as manager of one of its subsidiaries. (Dec. 5-6.) In 1988 his duties were expanded when he was placed in charge of another APW subsidiary where he supervised two salespersons and two office workers as well as handling the accounts of the two subsidiaries. (Dec. 6.)
By 1991, Mr. Lavin felt pressured due to increased job duties and his deteriorating relationship with his supervisor with whom he argued about issues such as staffing, travel expenses and his need for a company car. These arguments were often public with profanity used by his supervisor. (Dec. 7.)
On April 11, 1991 Lavin had a routine non-confrontational conversation with his supervisor. Later as he thought about various contentious employment issues, Lavin felt tightness in his chest and neck and experienced a severe headache. When he got up to walk out of the office he lost consciousness. He was transported by ambulance to a hospital, treated and released. The next day he returned to work. (Dec. 7.)
In June, 1991 the employee had an argument with his supervisor about increased staffing and an additional telephone. His supervisor used profanity in the course of this exchange. (Dec. 8.) On July 15, 1991 Lavin and his supervisor had another argument, this time over business calls made by Lavin. After this argument Lavin went home sick. He has not returned since. (Dec. 8.)
After examining the employee on July 10, 1991, Dr. Lawrence Peltz, Lavin's treating psychiatrist, diagnosed major depression with anxiety and opined that the employee was disabled from work due to overwhelming headaches. (Dec. 8.) Lavin had a thirty year history of headaches. He also suffered from depression following multiple surgeries performed in the seventies to correct a hiatal hernia. (Dec. 5.)
The insurer resisted Lavin's claim for compensation benefits. Following a conference denial, the employee appealed and a full evidentiary hearing was held. On November 8, 1993 the administrative judge issued his decision denying and dismissing the employee's claim. The case is before us on the employee's appeal.
Central to the employee's first argument are the following subsidiary findings which the administrative judge credited in his general findings.
Dr. Ellis [the insurer's doctor] indicated that the employee has `a lifelong history of personality disorder which is manifested by an angry affect and a tendency to place himself in the role of a victim.' Dr. Ellis also indicated that the employee was mildly anxious. However, Dr. Ellis opined that the employee was not depressed, but that he was `predominantly angry about his current life situation.'
(Dec. 10-11.)
Nevertheless, Dr. Ellis noted that, from the history that she obtained from the employee, he developed anxiety and depression during 1990 and 1991. Still, Dr. Ellis opined that there was no aspect of Mr. Lavin's employment which served to either cause or exacerbate his depression.
(Dec. 11.)
The employee argues that the administrative judge's adoption of Dr. Ellis' testimony was error because she based her opinion on a letter from the insurer's claims adjuster which was not a part of the record. However, Dr. Ellis testified that she relied on what Lavin had himself told her in forming her opinion. (Dep. of Dr. Ellis 38.) So if the doctor should not have been given the adjuster's letter, the mistake was harmless.
The employee further argues that Dr. Ellis' opinion on causation did not address the period of time prior to her examination of him on September 9, 1992. We agree. In her deposition Dr. Ellis stated that she was unable to render an opinion on his mental state prior to examining him. (Dep. of Dr. Ellis 41-43.) The only psychiatric medical testimony in evidence for the period in question was that of the employee's treating psychiatrist, Dr. Peltz whose testimony supported emotional disability and causal relation. Where that expert testimony is uncontroverted there must not only exist a basis for rejection of the testimony on the record, but the administrative judge must accompany the express rejection with clear and sufficient findings supportive of his conclusion. Cook v. Somerset Nursing Home, 8 Mass. Workers' Comp. Rep. 164, 166 (1994). Here the administrative judge noted Dr. Peltz' testimony in his subsidiary findings but did not expressly reject it. Thus the judge could not dispose of the emotional incapacity claim for the period July 15, 1991 to September 9, 1992 by simply crediting Dr. Ellis.
The difficulties with the medical evidence discussed above, became moot, however, because the judge effectively denied the emotional disability claim before reaching the medical piece. He accomplished this by making the factual finding that the various incidents at work were bona fide personnel actions and therefore by § 1 (7A) definition not a "personal injury" compensable under c. 152.
The judge concluded his decision with a single general finding, as follows.
I credit the testimony of Dr. Ellis. Based on all the evidence, lay testimony and medical testimony, I find that the Employee did not incur a personal injury while employed at APW (i.e., all personnel actions that occurred at APW vis-a-vis the Employee were bona fide personnel actions). I further find that work incidents involving the Employee at APW were not a significant contributing cause of his disability.
(Dec. 12.)
This finding, contends the employee, is so vague that it is impossible to know whether the judge understood and correctly applied the appropriate rules of law in reaching his decision.
Section 1 (7A), applicable to this date of injury states, in pertinent part:
`Personal injury' includes infectious or contagious diseases if the nature of the employment is such that the hazard of contracting such diseases by an employee is inherent in the employment. . . . Personal injuries shall include mental or emotional disabilities only where a significant contributing cause of such disability in [sic] an event or series of events occurring within the employment. No mental or emotional disability arising principally out of a bona fide personnel action including a transfer, promotion, demotion, or termination except such action which is the intentional infliction of emotional harm shall be deemed to be a personal injury within the meaning of this chapter.
St. 1985, c. 572 § 11, effective January 1, 1986
Section 1 (7A), as in effect at times pertinent to this case, established a higher standard to be applied in determining compensability in emotional disability claims. In this case the employee alleged that stressful incidents at work incapacitated him both mentally and physically. The judge found no mental personal injury because the stressful events at work were bona fide personnel actions and they ". . . were not a significant contributing cause of his disability." (Dec. 12) That finding disposes of the mental claim but bona fide personnel actions are not part of the analysis in claims of physical disability. Here, the judge failed to make express findings about the employee's claim of physically incapacitating headaches and a finding cannot be inferred from the judge's adoption of Dr. Ellis' testimony because she did not offer an opinion regarding the cause of the headaches. The physical aspect of the employee's claim thus remains unresolved.
With respect to the mental aspect of the employee's claim we affirm the judge's decision. To the extent that the decision denies the employee's claim for work related medically disabling headaches we reverse it. The administrative judge who heard this case no longer serves in the department. We therefore forward the case to the senior judge for reassignment and a limited hearing de novo on the claim of physical disability.
So ordered.
____________________________ William A. McCarthy Administrative Law Judge
____________________________ Susan Maze-Rothstein Administrative Law Judge
Filed: October 23, 1996
Robert Lavin appeals from the denial of his claim for compensation for an "unspecified" injury to his head described alternatively as "mental disorders", "symptoms and ill-defined conditions," and "other injury, not elsewhere defined." (Employee's Claim, boxes 16 18.) Although he raises four issues on appeal, the last three are indivisibly intertwined and will be discussed together. The issues as stated in the employee's brief are:
1. Whether the administrative judge's adoption of the testimony of Doctor Ellis was contrary to law, and/or arbitrary and capricious where said testimony was not based upon the expert's personal knowledge, or evidence already in the record.
2. Whether the administrative judge's decision is invalid where after accepting into evidence the records of Dr. Marvin J. Hoffert as a joint exhibit, he merely recited from them, made no findings with respect to them, and failed to make any finding with respect to the employee's claim and argument that he sustained a work-related exacerbation of an underlying headache condition to the point of disablement.
3. Whether the administrative judge's decision is invalid where the findings made are insufficient, and inadequate to determine with reasonable certainty whether correct rules of law have been applied to facts which could properly be found.
4. Whether the administrative judge's decision was contrary to law arbitrary and/or capricious and/or against the weight of the evidence.
(Employee's Brief at 1.) Although my reasoning is different, I agree with the affirmation of the psychiatric claim and the recommittal of the neurological claim.
I. FOUNDATIONAL REQUIREMENT FOR EXPERT MEDICAL OPINION.
Experts are entitled to rely upon hearsay, if the facts and data are independently admissible and constitute a permissible basis for an expert to consider in rendering an opinion. Liacos, Handbook Of Massachusetts Evidence, § 1.10.2. Like all hearsay, such basis for an expert opinion must be timely objected to. To fail to object to a question (or move to strike the answer) is to waive the objection to the testimony. The testimony, even though it may have been excluded upon objection, then retains its full probative value. Id., § 3.8.4. When objecting, counsel should state the specific ground of the objection unless it is apparent from the context. Id., § 3.8.2. A general objection must be overruled if the evidence is admissible for any purpose. Id. If the objection is too broad, including unobjectionable matter within its scope, the overruling of the objection is not error. Id.
The employee did not properly object to the admission of Dr. Ellis's opinions on causal relationship. The insurer asked Dr. Ellis: "Do you have an opinion based upon your review of the records, your examination of Mr. Lavin, and to a reasonable degree of medical certainty whether or not there's a causal relationship between his psychiatric condition and his employment at Automotive Parts Warehouse?" (Ellis Dep. 23.) The employee merely objected to "the form of the question". (Id.) He did not specify that the question assumed a material fact not in evidence. Even if he had specified that the opinion was inadmissible as it was based in part on the hearsay statements of the adjuster, it would have still been admissible in light of the doctor's testimony that "[t]he claims adjuster letter didn't influence my diagnostic assessment." (Ellis Dep. 44.) The judge properly overruled that objection. (Dec. 13.) Therefore, the opinion "that there was no aspect of his employment which served to either cause or exacerbate his depression" was properly admitted into evidence.
In addition, the insurer asked a similar question: "Do you have an opinion whether or not the fact that he could gainfully work or not was causally related to his employment at Automotive Parts?" (Ellis Dep. 24.) The employee did not object to this question. Thus the answer came into evidence: "No. I did not think it was causally related." (Ellis Dep. 24-25.)
The judge explicitly credited the testimony of Dr. Ellis. (Dec. 12.) Her testimony provided competent evidence for the judge's conclusion that "work incidents involving the employee at APW were not a significant contributing cause of his disability." Id. The judge's conclusion was not arbitrary or capricious, and employed the correct legal standard for the emotional disability claim. See Scheffler's Case, 419 Mass. at 258, citing Robinson's Case, 416 Mass. 454, 457-458 (1993); Attorney Gen. v. Sheriff of Worcester County, 382 Mass. 57, 62 (1980); and Howe v. Health Facilities Appeals Bd., 20 Mass. App. Ct. 531, 534 (1985). We therefore must affirm the denial of the employee's claim based on a reactive depression and psychiatric tension headache symptoms.
II. INADEQUATE FACTUAL FINDINGS WITH RESPECT TO AGGRAVATION OF THE EMPLOYEE'S PRE-EXISTING CLUSTER HEADACHE CONDITION.
In any pre-existing condition case, the judge must determine the pre-injury baseline, the work-related diagnosis and the duration of the work-related condition. Pelletier v. Bristol County, 8 Mass. Workers' Comp. Rep. 294, 295 (1994). When the employee regains the medical ability to perform some remunerative work, then the judge must determine the medical limitations from the work-related problem affecting the employee's ability to labor and then make a realistic appraisal of the amount which the employee is capable of earning post-injury, considering the employee's education, training, age, and experience. Scheffler's Case, 419 Mass. 251, 256, 643 N.E.2d 1023, 1026 (1994). At each change in medical condition, then judge must reassess the extent of incapacity from the work-related condition. Saracino v. Commonwealth, 8 Mass. Workers' Comp. Rep. 422, 426 (1994).
This employee had suffered from a neurological condition of cluster headaches for thirty years pre-injury. (Dec. 5.) He presented evidence from one expert, Dr. Hoffert, that his reactive depression and psychiatric tension headache symptoms complicated his cluster headache management. (Dec. 9.) The Faulkner Hospital records, which included a report of Dr. Hoffert, indicated a cluster headache problem in 1990 and 1991. (Ellis Dep. 35; Employee Ex. 1.) The only medical expert adopted by the judge, Dr. Ellis, did not feel competent to discuss the cluster headaches as they are a neurological rather than a psychiatric problem. See Ellis Dep. 27.
When interviewed by Dr. Ellis, the employee denied this history and maintained that his headaches began in 1991. (Ellis Dep. Ex. 2, 2.)
The employee correctly argues that the judge did not adjudicate his neurological claim. The decision lacks factual findings concerning the employee's baseline condition preinjury, and the nature and extent of an increase in his neurological disability and does not discuss the appropriate legal standard. The decision on the cluster headache portion of the employee's claim is inadequate for proper appellate review. Therefore, I agree that it is appropriate to recommit for further findings of fact on that issue.
Because the alleged injury here occurred prior to December 23, 1991, the version of G.L.c. 152, § 1 (7A) requiring that work be a "major cause" of the medical disability or need for treatment does not apply. The employee would be entitled to benefits if work caused a change in his neurological condition resulting in a need for additional medical treatment or causing a loss of full wages for a period of five or more calendar days. See G.L.c. 152, §§ 29 30.
As the judge who heard the case no longer serves the department, the neurological case must be heard de novo. Pursuant to 452 Code Mass. Regs. § 1.10 (7) (1993), in the absence of agreement of the parties and continued "dispute over medical issues," the remand proceeding should include the participation of an impartial medical examiner pursuant to G.L.c. 152, § 11A.
____________________________ Suzanne E.K. Smith Adminstrative Law Judge
Filed: October 23, 1996