Opinion
BOARD No. 08463689
Filed: June 29, 1995
REVIEWING BOARD:
Judges Maze-Rothstein, Kirby, and Smith.
APPEARANCES:
Joseph F. deMello, Esq., for the employee.
David N. O'Connor, Esq., for the insurer.
The employee appeals a decision that authorized discontinuance of temporary total benefits and instead ordered payment of partial incapacity benefits for a prior closed period. She argues the judge overreached in finding liability ceased after evidence was advanced of a theretofore undiagnosed congenital condition. We hold that the judge erred as a matter of law because she inappropriately consigned all of the employee's then present disability to the pre-existing condition. That causal conclusion was not supported by the evidence. However, the judge's error was harmless because, viewing the evidence most favorably for the employee, she could not ultimately establish her burden of proof. We affirm the decision of the administrative judge.
The employee worked as a tester for a cable company. (Dec. 3.) She tested cords, plugs and switches in a manner that required a variety of repetitive motions. (Dec. 3-4.) In September of 1989, the claimant began to experience discomfort, pain and loss of strength while engaged in her job duties. (Dec. 4.) She went to her family doctor complaining of pain, both in her left wrist and right shoulder. She was subsequently referred to a second doctor who diagnosed her as suffering from carpal tunnel syndrome. On February 7, 1990, he performed surgery on her left, "non-major" hand. (Dec. 4.) Although results seemed initially "good," the employee began to experience renewed pain and swelling "approximately" one month after the operation. (Dec. 4.) On April 6, 1990 an MRI diagnostic test revealed a congenital condition medically identified as an Arnold Chiari Type I malformation. (Employee Ex. 2.) The congenital condition was medically described as a malformation at the base of the brain that extruded brain matter out of the skull in to the fluid-filled portion of the spinal cord. (Fox Dep. at 22-23.) In this way the malformation could "intermittently" compress the spinal cord resulting in peripheral symptoms in the arms, hands, etc. Id. Moreover, the employee claimed at hearing that her "hand is now getting worse with a feeling as if something is out of place in her wrist." (Dec. 4.)
Beginning on December 30, 1989, the employee was voluntarily paid temporary and total benefits. On August 20, 1990, the insurer filed a complaint for discontinuance or modification and a § 10A conference was held. (Employee's Brief at 1.) The ensuing order modified the employee's benefits to partial incapacity compensation from June 28, 1991 and continuing. (Employee's Brief at 1.) The employee's conference order appeal triggered a de novo hearing held before the same administrative judge. We take up the appeal generated therefrom.
The judge found, on the medical evidence presented at hearing, that "[t]he employee ha[d] a pre-existing, non-work related medical condition, . . . [t]hat condition can explain the employee's numerous physical symptoms about which she ha[d] complained for years, including her `nerves.'" (Emphasis added.) (Dec. 9-10.) Moreover, the judge found that, "[t]he employee sustained a personal injury to her left upper extremity as a result of the repetitive nature of her job operation, culminating on December 30, 1989. Her present conditions and symptoms, however, are causally related to her non-work related situation." (Emphasis added.) (Dec. 10.)
Because these findings involve complex medical questions beyond the realm of layperson knowledge, the legal conclusion on causation could only be reached with the assistance of expert medical testimony. See King's Case, 352 Mass. 488, 490 (1967); Medeiros v. San Toro Mfg., 7 Mass. Workers' Comp. Rep. 66, 68 (1993). The medical evidence upon which the judge presumably based her decision does not establish that the Arnold-Chiari Type I malformation was the sole cause of the claimant's "present condition and symptoms." (See Dec. 10.) Such a finding could derive only from the medical evidence. See King's Case, supra at 491. That evidence was limited to the depositional testimony of Dr. Fox and the medical reports of Dr. Hantman.
Regarding causation, Dr. Fox specifically disqualified himself as to the Arnold-Chiari Type I malformation, stating, "[I am] not by any stretch of the imagination an expert or pretend to be an expert in the problems of the neck and spinal cord nor do I treat them." (Fox Dep. at 11.) Later in his testimony, he reaffirmed his lack of knowledge on the congenital condition. Dr. Fox asserted that ". . . [I] would like to just underscore for the record [I am] not a surgeon who treat[ed] the spinal cord or problems of the spinal cord and [was] not pretending to be an expert witness in this area." (Fox Dep. at 25.) With this, the doctor deflected making definitive responses that would establish the interplay of the two conditions — carpal and congenital — in her then current symptomatology. (Fox Dep. at 26 and 29.) ("I cannot answer . . . because I am not the treating physician and my knowledge of [Arnold-Chiari] is not strong enough to . . . make an expert comment on that." And as to the carpal present causation ". . . [the symptoms] certainly can be but they are not exclusive of other [Arnoid-Chiari] difficulties.") (Emphasis added.) Any testimony proffered by Dr. Fox regarding the congenital Arnold-Chiari Type I malformation condition could not have been afforded the status of expert testimony. Josi's Case, 324 Mass. 415, 417-418 (1949); see Ruschetti's Case, 299 Mass. 426, 431 (1938); see also Commonwealth v. Mendrala, 20 Mass. App. Ct. 398, 403 (1985). Dr. Fox, therefore, lacked expertise as to the congenital condition and was without the necessary medical certitude as to the carpal condition.
Dr. Hantman, while causally relating the congenital infirmity to the employee's "present condition and symptoms," fell short of reaching the medical conclusion that the congenital condition had become the sole cause of the claimant's incapacity. Dr. Hantman reported that the "[the Arnold-Chiari Type I malformation was] probably responsible for most of [the employee's] proximal symptoms. [The employee] also had carpal tunnel syndrome." (Emphasis added.) (Hantman letter of 7/19/90, Employee Ex. 1B.)
However, even though the medical evidence demonstrated that the claimant's congenital condition was the present cause of most of the claimant's "proximal symptoms," it could not be taken to mean that it had caused all of the claimant's symptoms. Thus, the judge's conclusion that the congenital condition was the sole cause of the claimant's present incapacity was not supported by the evidence. That which Dr. Hantman was unable to ascribe to the congenital condition was available to the employee to establish as work related. In fact, Dr. Hantman did not address the present causation of the residual disability beyond that accountable to the congenital condition. Dr. Hantman's statement that the employee "also had carpal tunnel syndrome" does not identify the industrial condition as contributing to the currency of her symptoms. (Hantman letter of 7/19/90.) (Emphasis added.)
Given the congenital and therefore pre-existing nature of some aspect of her impairment, which anomaly could intermittently mimic the industrial carpal injury, the employee's claim for continuing benefits was underpinned by the premise that an employer must take an employee "as is" regardless of any unique vulnerabilities to injury. Id. at 593; Crowley's Case, 223 Mass. 288, 289 (1916); Leak v. F.A. Bassett Printing Co., 4 Mass. Workers' Comp. Rep. 206, 213 (1990). The employee's own peculiar vulnerabilities, thus, did not detract from her right to be compensated for an industrial injury. Hence at the hearing, the employee did not have to prove that her then present condition was wholly caused by the employment; it would have sufficed if the accepted work injury continued to contribute to any of the lingering incapacity. See Cornell v. Massachusetts Bay Transp. Auth., 4 Mass. Workers' Comp. Rep. 26, 29 (1990).
This is not an aggravation case. See Madden's Case, 222 Mass. 487, 493-496 (1916); Trombetta's Case, 1 Mass. App. Ct. 102, 103 (1973); Edwards v. Warwick, 317 Mass. 573, 578 (1945). In an October 30, 1990 report, Dr. Hantman indicated he had no medical knowledge or information that the subject congenital condition could be aggravated by work. (Employee Ex. 1B.)
However, the employee bore the burden of proof on each element of her claim. Sponatski's Case, 220 Mass. 526, 527-528 (1915); Leontakianokos v. United Welding Processes, 4 Mass. Workers' Comp. Rep. 128, 129 (1990). One of the critical elements is causal relation. See Yates v. ASCAP, 6 Mass. Workers' Comp. Rep. 97, 101 (1992). We have held that it was clear error for the judge to have found the congenital condition solely caused the employee's incapacity because medical evidence that most of the then present disability derived congenitally could not support a finding that all of it did. Yet, the employee was not thereby relieved from her burden to show a work-related cause for the residual incapacity beyond that mostly accountable to the congenital condition. To support her claim, the employee had to "fill the gap" created by the medical evidence. She did not, nor could she, on the evidence submitted.
We agree with the claimant's argument that "the judge's findings were not consistent with the undisputed medical evidence submitted on behalf of the employee at the proceeding." (Employee's Brief at 2.) However, we must, in the end, agree with the insurer's argument that "even if the form of the decision is deficient, reversal is unwarranted because the employee failed her burden to prove all elements of her claim." (Insurer's Brief at 11.) On examination, the insurer's proposition holds.
Wherefore, although the administrative judge erred in her unsupported legal conclusion of causal relationship, the employee did not ultimately meet her burden to establish all the elements of her claim including causal relationship. We therefore affirm the decision of the administrative judge.
So ordered.
Judge Kirby concurs.
I agree with the result but disagree that the dicta is applicable to the facts of this case. The case turns solely on the employee's failure to establish a causal connection between her current symptoms and her work injury. The insurer here requested permission to discontinue benefits for a work injury based upon the discovery, since the acceptance of initial liability, of a previously undiagnosed condition which could explain all the employee's symptoms. The judge's decision granting that request was neither beyond the scope of his authority, arbitrary or capricious or contrary to law and therefore is properly affirmed. G.L.c. 152, § 11C.
I disagree that the insurer would be responsible for incapacity resulting from the Arnold Chiari malformation if the employee continued to have any, even the slightest disability resulting from the carpal tunnel syndrome. Instead, the case law indicates that under these circumstances the extent of incapacity should be judged solely on the residual effects of the work injury.
This is not an aggravation of a preexisting condition case, see Zerofski's Case, 385 Mass. 590 (1982). Nor is it a case where the employee had a known physical impairment due to a previous congenital condition and received a personal injury resulting in disability which was substantially greater than the previous disability by reason of the combined effects of the prior impairment and the subsequent work injury than would have resulted from the work injury alone. See G.L.c. 152, § 37. In both such cases the insurer has to pay all the compensation provided by the workers' compensation act without apportionment.
In contrast, where the employee has a work injury and there is a subsequent intervening independent cause of incapacity, the insurer is only responsible for the level of benefits attributable to the work injury. See Roderick's Case, 342 Mass. 330, 334 (1961) citing Whitehead's Case, 312 Mass. 611, 613 (1942) ("the supervening of a noncompensable injury sufficient in itself to produce total incapacity does not excuse the insurer from paying the compensation which would otherwise be payable for a compensable injury"). If an employee with a compensable injury sustains a later unrelated injury or disease causing additional, and perhaps even overwhelming, incapacity, this non-related superseding incapacity will be disregarded in determining the employee's right to compensation thereafter. Locke, Workmen's Compensation § 308 (1981 Ed.), citing Hummer's Case, 317 Mass. 617 (1945); Gollant's Case, 329 Mass. 607, 608 (1953) and Walsh's Case, 227 Mass. 341, 343 (1917) (subsequent insanity); (partial ability continues, even though subsequent injury causes total inability to work).
The circumstances of this case are most similar to those in LaFleur's Case, 398 Mass. 254 (1986) where the Supreme Judicial Court adopted the "unknown injury" rule and allowed a party to escape liability under an approved lump sum agreement on the basis of mutual mistake.
These fine legal distinctions are unimportant in the present case. The evidence taken at its best for the employee does not go beyond showing a possible causal connection between the employee's current symptoms and her work injury. The judge's denial of the claim for continuing compensation was therefore proper. See G.L.c. 152, §§ 34 and 35 which provide for payments based on incapacity for work "resulting from the injury." See also Sevigny's Case, 337 Mass. 747, 753, 151 N.E.2d 258, 262 (1958) (evidence insufficient to support award of compensation on ground of failure of proof of causal relationship between contracting of leukemia and the preceding injury to the employee).
For these reasons I concur in the result.