Opinion
BOARD No. 06091294
Filed: March 20, 1998
REVIEWING BOARD DECISION
(Judges Maze-Rothstein, McCarthy and Smith).
APPEARANCES
Elena M. Schineller, Esq., for the employee.
Wendy M. Bittner, Esq., on the brief.
Marybeth Guthro, Esq., for the self-insurer.
Ellen Harrington Sullivan, Esq., and Stephen R. McNaught, Esq., on the brief.
The self-insurer appeals from a decision which awarded the employee ongoing weekly compensation benefits. It asserts the decision is contrary to law because the causation standard under G.L.c. 152, § 1(7A), St. 1991, c. 398, § 14 was not applied. We affirm the finding of an industrial injury arising out of and in the course of the employment and recommit for further findings on whether the employee's compensable injury remains a major cause of any ongoing medical disability or need for treatment.
Reynolds worked as a baker for the employer, Shaw's Supermarkets. On January 7, 1993, at work he first experienced chest pains while carrying a case of bread dough that weighed approximately forty pounds. (Dec. 5.) He reported to his supervisor that he wasn't feeling well, left work and was inpatient at a hospital for two days where hypertension was diagnosed. (Dec. 4-5.) He returned to work shortly after this incident. (Tr. 16.)
Beyond the bare finding, the record is silent regarding this incident.
Approximately two weeks later, on January 28, 1993, the employee was transferred to a store closer to his home "for the betterment of his health." (Dec. 5-6.) On March 11, 1994, while loading a sub-zero freezer, he felt sharp burning chest pains. (Dec. 6.) He continued to perform his baking duties with this discomfort for several hours, until his supervisor ordered him to go home. His wife picked him up nearly two hours before the end of his shift. (Dec. 6; Tr. 23-27.)
The decision reads "January 28, 1994." It appears to be a scrivener's error.
The employee's chest pains continued at home. That evening, his wife took him to the hospital where he was diagnosed as having a heart attack in progress. He was admitted for approximately one week and then discharged with several medications. On April 21, 1994, and on May 4, 1994, cardiac surgeries were performed. (Dec. 6.) In September of 1994, while in cardiac rehabilitation the employee was diagnosed with diabetes. He was cleared for work in October 1994 with a twenty-five pound lifting restriction. (Dec. 7.) On January 26, 1995, he secured work as a school bus driver earning much less than he had as a baker. (Dec. 8.)
The employee filed a claim for G.L.c. 152, § 34 temporary total and § 35 temporary partial weekly incapacity benefits and related medical benefits under § 30. These claims were denied after a § 10A conference. (Dec. 2.) The employee appealed to a hearing de novo.
At the hearing, the report of the § 11A medical examiner was admitted into evidence. G.L.c. 152, § 11A. The doctor at that time did not feel that the employee's March 11, 1994 work activities caused his heart attack. The employee deposed the § 11A physician, who testified that the major and predominant cause of the heart attack was the employee's severe coronary artery disease which resulted from multiple pre-existing risk factors. (Dec. 7; Dep. 20, 35, 40.) Upon cross-examination, however, the doctor testified that if the employee had been lifting in a cold environment, that activity could have triggered a myocardial infarction and could have been a significant factor and one of a number of major causes of the heart attack. (Dec. 7; Dep. 34-35, 41-42.)
In response to the employee's motion for the allowance of additional medical evidence, the judge ruled the § 11A report was "inadequate due to the complexity of the medical issues involved and additional medical testimony was authorized." (Dec. 3.)
General Laws c. 152, § 11A gives an impartial medical examiner's report the effect of "prima facie evidence" with regard to the medical issues contained therein, and expressly prohibits the introduction of other medical evidence to meet it unless the judge finds the additional medical testimony is required due to the complexity of the medical issues involved or the inadequacy of the report.
The employee submitted a medical report from Dr. Lawrence Baker. He opined that the underlying arteriosclerotic coronary artery disease was acted upon by the physical exertion at work to cause the heart attack, which necessitated the cardiac surgeries. (Dec. 8, 9.) Taking this together with the § 11A doctor's testimony on cross-examination, the judge adopted Dr. Baker's view of causation. Id.
The self-insurer submitted a medical report from Dr. Elliot Sagall, who concluded that the major and predominant cause of the employee's disability was his underlying coronary arterio-sclerotic disease and not the myocardial infarction. However, he conceded that if the history as recited by Dr. Baker was accepted, then the physical exertion at work superimposed on the underlying coronary disease could be a triggering cause of his myocardial infarction. (Dec. 7.)
The judge found that the employee was incapacitated as a result of his industrial accident and ordered § 34 temporary total incapacity benefits from March 12, 1994 to January 25, 1995, when the employee returned to work, and ongoing § 35 partial incapacity benefits from January 26, 1995. (Dec. 10.)
The self-insurer appeals alleging error in the failure to apply the causation standard in § 1(7A). The self-insurer argues that the judge's statement that "an employer accepts an employee as is" (Dec. 7) in declaring the medical issues complex and allowing submission of additional medical evidence establishes the judge's confusion as to the proper standard. We agree, in part, with the self-insurer's arguments. The medical opinion adopted by the judge more than met the correct § 1(7A) standard for initial causation. The error is harmless. However, the judge failed to complete the appropriate analysis required by that section leaving unaddressed whether the employee's compensable injury remains a major cause of his incapacity.
Where, as here, a pre-existing non-compensable injury or condition combines with a work-related injury to cause or prolong medical disability, the appropriate analysis regarding on going causal relationship is no longer the simple requirement to take the employee "as is." Rather, the standard to be used is governed by § 1(7A). In Robles v. Riverside Mgmt., Inc., 10 Mass. Workers' Comp. Rep. 191 (1996), we stated that, judges must determine:
As discussed in Robles, the "as is" simple contribution standard still applies where the pre-existing condition is work-related and thus compensable. Id. at 195.
General Laws c. 152, Section 1(7A) (St. 1991, c. 398, Section 14), applicable to injuries sustained on or after December 23, 1991, provides:
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.
1) whether there was a physical change (and what it was) occasioned by an . . . (industrial injury as it has always been understood); and 2) whether the industrial injury combined with an identified 'pre-existing condition which resulted from an injury or disease not compensable under this chapter, to [; 3) cause or prolong disability . . ."
* * *
[4) O]nce caused or prolonged, the medical disability or "resultant condition" is then compensable "only to the extent" that such industrial injury "remains a major but not necessarily predominant cause of disability or need for treatment"
Id. at 195-196 quoting G.L.c. 152, Section 1(7A) (emphasis in original); Martinez v. Goddard House Nursing Home, 10 Mass. Workers' Comp. Rep. 566, 568 (1996). The first three prongs of theRobles test go to the question of initial causation, which governs whether there was a "compensable injury." As to that question, the analysis does not differ from the pre-1991 amendment causation standard. In applying the first three steps of the analysis, judges need not determine whether the industrial injury was "a major" cause of any resulting disability; rather, they need only determine whether "but for" the combination of a work-related event and a non-work-related pre-existing condition, there would have been no medical disability or need for treatment. Robles at 196.
In the instant case, the first three prongs of the analysis required by Section 1(7A) as interpreted by our decision inRobles, have been met. The judge first found that there was a physical change (a myocardial infarction) occasioned by an industrial accident (the employee's exertional activities at work on March 11, 1994). Second, he indicated that the industrial accident combined with a pre-existing condition (arteriosclerotic coronary artery disease) which resulted from a non-compensable injury or disability. Third, the administrative judge found that the employee was medically disabled as a result of his work-related injury. (Dec. 9-10.) Thus, the first three prongs of the Robles "but for" analysis have been met.
What the judge meant by his use of the term "as is" we can only speculate. As the employee points out, the phrase appears only in reference to the judge's determination that the impartial medical examiner's report is complex. As stated, given the medical evidence adopted, the error is harmless. Doctor Baker opined that the exertional efforts expended at work on March 11, 1994, superimposed on his underlying condition represented "the major contributory factor in his development of an acute myocardial infarction." This opinion exceeds the requirements for a finding of initial causation under § 1(7A) as discussed above. In Dr. Baker's opinion, "As a direct consequence of the work-related MI of March 11, 1994, he suffered a diminution of coronary and cardiac reserves, required cardiac catheterization and required angioplasty." (Baker Rep. 3-4.)
However, the judge failed to apply the fourth prong of the § 1(7A) analysis in that he made no specific finding whether the employee's "compensable injury" thereafter remained a major cause of his ongoing disability or need for treatment. As we stated inRobles, judges must find whether the compensable injury "continues to be 'a major cause,' among any number of major causes of medical disability throughout the course of extended physical effects, by contemplating not the magnitude of the incident itself, but the harm flowing specifically from the industrial injury." Id. at 196. They must "comb the expert medical opinion(s) for indications of either continuity or change in the causal status." Id. at 197.
Here, the judge determined that the employee "began to suffer burning chest pains while working in the freezer and that it continued for the rest of the day." (Dec. 9.) The judge concluded that the exertions in the freezer "acted upon his pre-existing . . . coronary . . . disease to cause a myocardial infarction." Id. As a result of this compensable injury (i.e. the heart attack), the employee suffered some incapacity. Yet, there are no findings on how long the compensable injury remained a major cause of any ongoing disability or need for treatment. The judge stated only that Dr. Baker indicated that the myocardial infarction necessitated the cardiac catheterization and angioplasty. (Dec. 8.) This statement is insufficient under Robles, there must also be a finding that the compensable injury "remains" "a major" cause. Id. at 197. Thus, we recommit the case for proper application of the law and further findings consistent with this opinion. See Prendergast v. Bay State Volkswagen, 11 Mass. Workers' Comp. Rep. 141, 144-145 (1997).
We affirm the finding that the employee suffered an industrial injury arising out of and in the course of his employment. On recommittal, the judge need only make findings on the limited question of how long the compensable injury continued (or continues) to be a major cause of the employee's medical disability or need for treatment.
Because the judge who heard the case is no longer with the Department, we return the case to the senior judge for reassignment to another administrative judge for further findings.
____________________ Susan Maze-Rothstein Administrative Law Judge
____________________ William A. McCarthy Administrative Law Judge
FILED: 3/20/98
The judge's ruling that the § 11A impartial medical report was inadequate, and his decision on the merits of the employee's claim, were both tainted by his failure to apply G.L.c. 152, § 1(7A). There is no assurance that his decision would have been the same had he applied the correct law.
The judge relied on, and the majority affirms based upon, medical evidence that was inadmissible without judicial approval. G.L.c. 152, § 11A(2). If incompetent evidence may have influenced judge's fact finding, then the appellant is entitled to a new decision. If an error of law may have affected the judge's inadequacy ruling, then the appellant is entitled to a new ruling on the motion for additional medical evidence. The determination of causation under § 1(7A) must be based upon probabilities. Here, the impartial medical examiner opined that it was impossible to say with any certainty that physical exertion can trigger a heart attack. (Dep. 22.) He directly and clearly disagreed with the additional medical evidence, Dr. Baker's opinion, relied upon by the judge and the majority. (Dep. 35.) The impartial physician testified that physical exertion can cause angina but it is impossible to say with any certainty that it can trigger a heart attack. (Dep. 22, 34, 36.) The most he would say was that the exertion could cause angina, which then could cause a heart attack. (Dep. 24.) There is no evidence in the record, based on probabilities and not just possibilities, except for the additional medical evidence, that Reynolds's work caused his myocardial infarction or that the physical change in his body, which work produced, remained a major cause of his myocardial infarction.
". . . no additional medical reports or depositions of any physicians shall be allowed by right to any party; provided, however, that the administrative judge may . . . authorize the submission of additional medical testimony when such judge finds that said testimony is required due to the . . . inadequacy of the report submitted by the impartial medical examiner."
A board certified cardiologist. (Dep. Ex. 1.)
A well-known expert witness, who is not a cardiac specialist. (Employee Ex. 2.)
"We know that people have heart attacks in their sleep and all sorts of situations, and whether what they are doing at that moment actually caused it or not, we are not able to say with certainty." (Dep. 34.)
"Just from experience that this happens to people regardless of what they're doing, and there have been studies, actually, that have not shown work stress to bring on heart attacks any more than anything else. There's no good cause-and-effect correlation." (Dep. 36.)
Which then could lead a patient to cardiac catherization or angioplasty. (Dep. 25.)
In ruling on a motion for additional medical evidence, a judge should determine whether the preferred opinion is otherwise admissible under the evidentiary rules of the Commonwealth. Following the guidance of the Supreme Court in Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 113 S. Ct. 2786 (1993), the judge should consider whether the etiological theory underlying the competing medical opinion is based on the scientific method, has reproducible methodology, appears in peer journals or is otherwise generally accepted in the medical community. See Commonwealth v. Lanigan, 419 Mass. 15, 26 (1994);Commonwealth v. Paul J. Sands, 424 Mass. 184 (1997). See also Linda Sandstrom Simard William G. Young, Daubert's Gatekeeper: the Role of the District Judge in Admitting Expert Testimony, 68 Tul. L. Rev. 1457 (1994). The overarching issue is the scientific validity — and thus the evidentiary relevance and reliability — of the principles that underlie the proposed additional medical evidence. See Rotman v. National R.R. Passenger Corp., 41 Mass. App. Ct. 317, 319 (1996) quoting Commonwealth v. Lanigan. The impartial medical opinion quoted in notes 10 and 11, infra, casts doubt on whether this threshold for admission was reached. However, the insurer did not raise an explicit objection on this basis.
"Given . . . the fact that under the workers compensation law an employer accepts an employee as is physically, [the judge] declared the impartial report of Dr. Franklin M. Scheel to be inadequate" (Dec. 7) and allowed additional medical evidence. Because the otherwise inadmissible medical opinion sharply contradicted that of the impartial medical examiner, there is no basis for deeming harmless the judge's legal error in his ruling on the motion for its submission. Gompers v. Finnell, 35 Mass. App. Ct. 91, 95 (1993); Grant v. Lewis/Boyle, Inc., 408 Mass. 269, 275 (1990). Under these circumstances, where the key evidence on which the award is based was expressly admitted as a result of the application of the incorrect "as is" legal standard, the decision should be reversed and the case recommitted for a new decision based on the proper law. G.L.c. 152, § 11C.
The judge's legal error also permeated his decision on the merits. The judge failed to perform the required § 1(7A) analysis necessary to support an award for the heart attack. He did not mention § 1(7A) in his decision and failed to provide any of the definitional steps required by Robles v. Riverside Mgmt., Inc., supra. He did not clearly define the physical change occasioned by work. The record does not compel a conclusion that this physical change was the myocardial infarction. To the contrary, it appears that the judge found a "compensable injury" of anginal spasm produced as a result of lifting in the cold freezer. (Dec. 6.)
Section 1(7A) required a determination of whether the angina, which Reynolds experienced on the job and as a result of work activity, remained a major cause of his evolving anteroseptal myocardial infarction diagnosed in the hospital hours after he left work. See (Id.). A myocardial infarction occurs when arterial plaque narrows the lumen of the arteries so that the blood can no longer flow through the artery, and the heart tissue, deprived of oxygen, dies. (Dep. 11.) It is clear from the record that Reynolds's myocardial infarction had many contributory causes, in addition to the changes in his heart caused by his work on March 11, 1994: a 40 year history of cigarette smoking which accelerated his arteriosclerosis, essential hypertension, high cholesterol, genetic predisposition to the development of coronary artery disease, and diabetes mellitus. (Dep. 8-15.) When he went to work on March 11, 1994, Reynolds had severe coronary artery disease, i.e. lots of arterial plaque. In other words, he was a walking time bomb for a heart attack. (Dep. 20.) Because the judge failed to perform the required § 1(7A) analysis, his liability decision should be reversed.
The case should be recommitted for hearing de novo on all the issues, including reconsideration of the motion for additional medical evidence and liability for the myocardial infarction. Only in that fashion can we be assured of a decision based on correct legal principles and facts grounded in properly admitted evidence. I would so order.
The judge has retired and is not available to render a decision on recommittal.
___________________ Suzanne E.K. Smith Administrative Law Judge