Opinion
BOARD No. 000938-97
Filed: December 6, 2001.
REVIEWING BOARD DECISION
(Judges McCarthy, Wilson and Maze-Rothstein)
APPEARANCES
Michael A. Torrisi, Esq., and Wilbur Hyatt, Esq., for the employee
Stephen R. McNaught, Esq., for the self insurer
The self insurer appeals the award of § 34 weekly temporary total incapacity benefits on three grounds. We recommit the judge's decision based on one issue raised by the self insurer — that the administrative judge failed to address and apply relevant elements of G.L.c. 152, § 1 (7A).
Felix Nunez, a native of the Dominican Republic with a seventh grade education, came to the United States in 1979. At the time of the hearing he was forty-four years old, could speak, understand and read some English though his primary language is Spanish. His work experience in this country includes making belts for a leather company, making wigs, working as an apprentice for an upholstery company and doing unspecified work for a clothing manufacturer and sign company. He had two prior industrial injuries, one to his back and another to his back and finger. In addition, he had three or four motor vehicle accidents between 1993 and 1996, at least two of which involved neck and back injuries. (Dec. 5.)
Mr. Nunez began working for the employer in its warehouse on December 9, 1996, regularly lifting boxes of food products weighing between ten and seventy pounds each. He also operated a forklift and occasionally worked in the freezer. Prior to beginning work, he had undergone a complete physical examination, after which he was cleared for work without restrictions. On January 17, 1997, while lifting a fifty to sixty pound box at work, Mr. Nunez fell backwards off a pallet and landed on a cement floor with the box on top of him. He struck the back of his head and injured his neck, back, shoulder and left knee. He was taken by ambulance to the hospital and has not returned to work since the accident. (Dec. 6, 8.) He has had physical and aquatic therapy, but refused proffered surgery for his neck, low back and shoulder, as well as epidural steroid injections. (Dec. 7.)
The self insurer accepted liability for the employee's injury and paid him weekly § 34 benefits. (Dec. 1.) On July 29, 1998, the self insurer filed a complaint to discontinue benefits. (Self insurer brief, 2.) Following a conference, an administrative judge ordered the employee's benefits modified effective January 12, 1999. Both parties appealed to a de novo hearing. The report and deposition testimony of Dr. David Glazer, the impartial physician, were admitted in evidence. (Dec. 1.) Doctor Glazer stated in his report that the employee's work accident caused some of his diagnosed conditions, but he was not sure that it caused all of them. (Dec. 8, Employee Ex. 2.) In his deposition testimony the impartial physician appeared to modify his position on causation. Without specifying what the impartial physician's final opinion on causation was as expressed via deposition, the judge found it to be confusing and unclear and therefore allowed the parties to submit additional medical evidence. (Dec. 2, 8-9.)
Doctor Glazer testified variously that the employee's work accident "probably aggravated some preexisting problems," (Dep. 39); that he wasn't changing his diagnosis or the findings in his report, IA.; that he couldn't say which diagnosed conditions the accident caused, (Dep. 40); and that he thought the accident aggravated rather than caused the employee's conditions. (Dep. 40-41.)
At hearing, the employee sought § 34 benefits from January 12, 1999, the date his weekly benefits were reduced by conference order. The self insurer disputed disability and causal relationship and alleged that the § 1 (7A) standard of major causation should be applied. In his decision, the judge found that the employee was still experiencing pain in his back, neck, left shoulder and left leg. He had difficulty lifting anything heavy with his left arm and had trouble bending and sitting for long periods. He needed pain medication to help him sleep. He could walk for about twenty minutes, but sometimes used a cane. He was able to drive but performed few household chores. (Dec. 7-8.)
The judge adopted the diagnoses of the impartial physician, Dr. Glazer, which were: 1) cervical radiculitis secondary to a disc herniation; 2) low back degenerative disc disease with some bulging; 3) torn meniscus in the left knee; and 4) rotator cuff impingement syndrome and probably arthritis. He further adopted Dr. Glazer's opinion on extent of medical disability and found the employee to be totally incapacitated. However, because Dr. Glazer's opinion on causation, as expressed in his deposition, was "confusing and unclear," (Dec. 8), the judge adopted the opinion of the employee's expert, Dr. Courville, on causal relationship. Doctor Courville, whose diagnoses were "similar" to Dr. Glazer's, opined that the employee's "present total disability is causally related to the fall which occurred on 1/17/97." (Employee Ex. 10.) The judge then concluded as follows: "I adopt the opinion of the employee's expert, Dr. Courville, that the employee's cervical, left shoulder, lower back and left knee conditions are causally related to the injury he suffered on January 17, 1997. To the extent any of these conditions pre-existed his work injury, they were aggravated by the work injury to the extent that they combined to render him unable to maintain any substantial gainful employment." (Dec. 10.) The judge awarded the employee ongoing § 34 temporary total incapacity benefits beginning on January 12, 1999. (Dec. 11.)
Making two related arguments, the self insurer basically alleges that the judge erred in relying on the impartial physician to find the employee totally incapacitated. We disagree and summarily affirm the judge on this issue, noting that the judge adopted the opinion of the impartial physician only as to extent of disability, while adopting the opinion of the employee's treating physician regarding causal relationship. (Dec. 10.) The impartial physician, though unable to state whether all the employee's medical problems resulted from his industrial injury, (Tr. 29-30, 40-43), nevertheless maintained his position that he believed the employee to be totally disabled. (Tr.30-3 1.) In addition, the judge made specific findings regarding the employee's limitations, which would support a finding of total incapacity. (Dec. 7-8.)
Next, the self insurer argues that the judge failed to apply the heightened § 1 (7A) causation standard which it raised as an issue at hearing. We agree that the judge was required to do at least a threshold analysis under § 1 (7A), given the evidence presented regarding potentially combining pre-existing conditions. G.L.c. 152, § 1 (7A), provides that:
If a compensable injury or disease combines with a pre-existing 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.
In order for § 1 (7A) to come into play the self insurer must ". . . produce evidence which would support a finding of a non work related pre-existing condition." Cook v. Stop Shop Co., 15 Mass. Workers' Comp. Rep. 252, 257 (2001); Fairfield v. Communities United, 14 Mass. Workers' Comp. Rep. 79, 83 (2000). Based on testimony elicited from the employee by the self insurer, the judge found that Mr. Nunez had been involved in several motor vehicle accidents between 1993 and 1996, at least two of which involved neck and back injuries. (Dec. 5; Tr. 50-53.) In addition, Dr. Courville, whose causation opinion the judge adopted, stated that the cervical disc injury and disc bulging were more likely than not present prior to the injury, and that the employee had had a "bout of spine pain several years ago." (Employee Ex. 10.) The judge rejected the causation opinion of Dr. Glazer, the impartial physician, but adopted his diagnoses, which included low back degenerative disc disease, (Dec. 8), which Dr. Glazer opined was probably a pre-existing condition. (Dep. 23.) This evidence called for a threshold § 1 (7A) finding as to whether or not any pre-existing non-compensable injury or disease combined with the employee's compensable injuries to cause or prolong disability or a need for treatment.
Though there is no explicit § 1 (7A) finding, the judge seemed to be heading in that direction when he wrote, "Prior to beginning work, [t]he [employee] underwent a complete physical exam, after which the physicians placed no restrictions on his physical activities." (Dec. 6.) Other testimony of Mr. Nunez is also pertinent. He testified that, prior to his industrial injury of January 17, 1997, he was in "perfect condition," (Tr. 16), and that he suffered minor injuries in several motor vehicle accidents, so that he was "one hundred percent in health and . . . had no pains" when he went for his pre-employment physical. (Tr. 52-53.) If credited, this testimony, in combination with the adopted medical evidence, would support a finding that the employee had no pre-existing noncompensable conditions that combined with his work injury to cause or prolong disability or a need for treatment. Compare Bedugnis v. Paul McGuire Chevrolet, 9 Mass. Workers' Comp. Rep. 801, 803 (1995) (judge has authority to find causal relationship where expert testimony and lay evidence taken as a whole warrant that result); Greci v. Visiting Nurses Assoc., 12 Mass. Workers' Comp. Rep. 462, 465 (1998) (findings on incapacity may be based on employee's testimony and on the judge's observation of the employee in the courtroom and on the witness stand, in conjunction with expert medical opinion).
The self-insurer argues that the judge's finding is based only on the employee's testimony, which was unsupported hearsay. However, regardless of whether the basis for this finding was hearsay or not, the testimony was admitted without objection, (Tr. 16), and therefore is entitled to its full probative force. Nancy P. v. D'Amato, 401 Mass. 516, 524 (1988); Santos v. George Knight Company, 14 Mass. Workers' Comp. Rep. 289, 292-293 (2000). See generally P.J. Liacos, Massachusetts Evidence § 3. 8.1, at 78 (7th ed. 1999).
We therefore recommit this case for findings on whether any pre-existing noncompensable condition or conditions combined with the employee's work injury. If the judge finds that they did not, then he need go no further with a § 1 (7A) analysis. The employee's medical disability is analyzed under a simple "as is" causation standard. Cook, supra at 258, citing Robles v. Riverside Mgmt., Inc., 10 Mass. Workers' Comp. Rep. 191, 195 (1996). If he finds a combining pre- existing non-compensable condition
or conditions, then he must go on to determine whether the work injury remains a major cause of any ongoing disability or need for treatment.
In the interest of justice, the judge may take such further evidence as he deems necessary.
So ordered.
________________________ William A. McCarthy Administrative Law Judge
________________________ Sara Holmes Wilson Administrative Law Judge
________________________ Susan Maze-Rothstein Administrative Law Judge
Filed: December 6, 2001