Opinion
BOARD No. 29290072
Filed: May 30, 1995
REVIEWING BOARD:
Judges Wilson, Fischel, and McCarthy.
APPEARANCES:
Edward J. Spence, III, Esq., for the employee.
Daniel P. Napolitano, Esq., for the insurer at hearing; Ana Mari de Garavilla, Esq., for the insurer on brief.
The employee appeals from the decision of the administrative judge that denied and dismissed his claim for failure to prove a causal relationship between present incapacity and an accepted neck injury on November 17, 1972. We vacate the decision and recommit the case to the administrative judge.
Following a hearing at which the employee sought § 34 benefits from July 2, 1989 and continuing for alleged total incapacity resulting from the original 1972 neck injury, the judge found no causal relationship between that injury and the employee's present incapacity. In so finding, he adopted the opinions of Dr. Norwood and Dr. Bouillon "to the extent that the Employee's present disability was caused by the cumulative affect [ sic] of the injuries on November 17, 1972, October 24, 1974, and September 11, 1975 and the car accident on January 26, 1976." (Dec. at 8, 9) The judge also adopted those doctors' opinions that the employee's incapacity "was triggered by the injury of November 17, 1972, but was also aggravated by the subsequent injuries and the car accident[,]" and then observed that neither doctor "could determine with any certainty the exact extent to which the aggravating incidents contributed to the Employee's disability." (Dec. at 9.)
The employee injured his right arm, hand and shoulder as well as his neck in a forklift accident on November 17, 1972, and underwent a laminectomy at the C5-6 level in March 1973 (Dec. at 3, 4). He fell and injured his back on October 24, 1974 while performing light-duty work (Dec. at 4). On September 11, 1975, he struck his head on a stairwell while working as a security guard (Dec. at 4). In the January 1976 motor vehicle accident, the employee's car was struck from behind by another vehicle and he experienced "more pain in the base of his neck with some radiation." (Dec. at 5, 6.) In 1978, the employee worked for a year as a dishwasher, and then until 1988 worked as a prep worker at a delicatessen (Dec. at 6). The administrative judge found it significant that the employee did not seek medical treatment from March 1976 to July 1989 (Dec. at 6, 9).
The employee argues on appeal that the administrative judge's finding of lack of causal relationship between the original neck injury and his present condition is arbitrary, capricious, and against the weight of the medical evidence presented by the employee. The employee contends that the evidence clearly establishes a causal connection.
The Reviewing board no longer has authority to weigh the evidence and make findings of fact. G.L.c. 152, § 11C, as amended by St. 1991, c. 398 § 31.
After reviewing the subsidiary findings of the administrative judge, many of which are mere recitations of testimony that do not tell us what facts the judge found, we are unable to determine with reasonable certainty whether the judge applied correct legal standards in denying weekly benefits. See G.L.c. 152, § 11C; Crawford's Case, 340 Mass. 719, 720-721 (1960). We therefore recommit the case for further findings of fact.
The administrative judge made a subsidiary finding that Dr. Bouillon, an orthopedic surgeon, was of the opinion that the injury on November 17, 1972 "was the substantial cause of the Employee's present disability." (Dec. at 7.) Specifically, the doctor testified:
My opinion is that the substantial cause of this patient's long-term disability and chronicity of problems is the 1972 accident where he damaged two cervical discs leading to what has been a persistent weak triceps and pain in the shoulder, more a radicular type pattern of pain. Over the years it seems that he had developed also some neck pain from a variety of industrial accidents and automobile accidents, but that throughout this chronology of events . . . the arm pain and radicular symptoms involving the C5 nerve root were persistent and consistent from the original injury.
(Bouillon Dep. at 66) (emphasis added).
The judge also made a subsidiary finding that Dr. Norwood, an orthopedic surgeon, opined that the employee's present incapacity was causally related to the 1972 injury as well as to the two subsequent industrial incidents and the 1976 car accident, but that the doctor did not know what contribution each subsequent injury made to the employee's present condition (Dec. at 8). The doctor's ultimate opinion on the issue of causal relationship was that the employee's 1972 injury was "a contributing cause" and the resulting surgery was "a significant component" of his present incapacity (Norwood Dep. at 69, 76).
Although the administrative judge adopted the opinions of Dr. Norwood and Dr. Bouillon that the employee's condition was aggravated by the subsequent work injuries and the car accident, he omitted the analysis that necessarily must follow those opinions in order to determine whether the employee's physical disability was causally related to the original injury and therefore a recurrence, or to one or another of the subsequent injuries and therefore a new injury. In addition, the several scattered references in the opinion to testimony about the ebbs and flows of the employee's pain over time are recitals of testimony that leave us at sea as to what facts the judge would find as a basis for his conclusion on causal relationship.
The pathway to a decision in a case where there are successive injuries is neither clear cut nor easy. But there are many decisions that serve as guides. As a starting point, Madden's Case, 222 Mass. 487 (1916), teaches that the employee must establish an "essential connecting link of direct causal connection between the personal injury and the employment . . . before the act becomes operative." Id. at 495. Where there are a series of injuries, the task of the judge is to ascertain which "[is] the most recent [work-related] injury that bears a causal relation to the disability." Peter's Case, 331 Mass. 188, 189-190 (1954). Thus, in Twomey v. Greater Lawrence Visiting Nurses Assoc., 5 Mass. Workers' Comp. Rep. 156 (1991), we observed that the consistent rule in a multiple injuries situation has been that where "a second period of disability follows an event which rose out of and in the course of employment[,]" then there is liability "to pay compensation for an incapacity following that injury where there is a causal connection between that injury and the incapacity even though the earlier injury may have been a contributing cause or even the major contributing cause of the disability." Id. at 158 (emphasis supplied). This rule stands even if the incapacity would have been less had the employee not suffered a prior compensable injury. Fitzpatrick's Case, 331 Mass. 298, 300 (1954). In determining whether incapacity is merely the natural physiological progression of a condition caused by a prior compensable injury or the result of a new injury, the focus should be on whether there is either a recurrence of symptoms that is not a new injury or an aggravation of a preexisting compensable condition to the point of compensable incapacity. See Smick v. South Central Mass. Rehabilitation Resources, Inc., 7 Mass. Workers' Comp. Rep. 84, 87 (1993) (contrasting Arbogast v. McCord-Winn, Inc., 5 Mass. Workers' Comp. Rep. 189 (1991), with Costa's Case, 333 Mass. 286 (1955)). As we pointed out in Smick, an aggravation of an original compensable injury may be an independent supervening cause of incapacity "if it is a contributing cause, even to the slightest extent, of the employee's incapacity." Id. at 86 (citing Rock's Case, 323 Mass. 428 (1948)) (emphasis supplied). of course, a mere temporary exacerbation of an original compensable injury does not rise to the level of a new injury. Id. at 87 (citing Locke, Workmen's Compensation § 178 (2d ed. 1981)).
On remand, the administrative judge should make explicit findings of fact on the employee's baseline physical condition after the original 1972 neck injury and prior to the subsequent incidents. He should then determine whether any of the subsequent injuries are work related, see Zerofski's Case, 385 Mass. 590, 592 (1982), and if so whether any work-related injury constitutes a new injury, an aggravation of the original injury that is more than temporary and, therefore, a new injury, or merely a recurrence of symptoms arising from the 1972 compensable injury. This analysis requires careful findings of fact on the lay and expert testimony regarding the employee's physical symptoms and condition over time. See generally Smick, 7 Mass. Workers' Comp. Rep. at 86-87 (discussing and contrasting the import of varying complaints of pain and physical impairment in the context of judicial determination of whether there is a new compensable injury or a recurrence of an old injury). It also requires, in all but the most simple cases, findings on expert opinion as to causal relationship of the physical impairment to a work-related injury. See Josi's Case, 324 Mass. 415, 417-418 (1949). Only after a factual determination is made on whether there is either a new injury or a recurrence of an old injury that bears a causal relationship to a work-related injury, can the judge go on to assign liability.
As a final matter, the judge's findings that Home Insurance Company was the insurer on the risk at the time of the October 1974 injury, (Dec. at 4 n. 5), and that Liberty Mutual Insurance was the insurer on the risk at the time of the September 1975 injury, (Dec. at 4 n. 6), are erroneous because the record is bare of evidence that any insurer other than Wausau was on the risk at the time of any of the employee's three industrial injuries (Employee's Brief at 14). Nor were any other insurers joined as parties, although the transcript reveals some unresolved discourse between the judge and attorneys around the issue. Accordingly, the findings as to Home Insurance Company and Liberty Mutual Insurance are stricken.
If there were, in fact, a successive insurer on the risk at the time of a supervening, work-related injury these findings would have significance on the assignment of liability. See Smick v. South Central Mass. Rehabilitation Resources, Inc., 7 Mass. Workers' Comp. Rep. 84 (1993).
Since it appears that this case should have been presented in the first instance as a successive insurer case, the administrative judge on recommittal may allow one or more insurers to be joined as parties, and take such other new evidence as is equitable and necessary to properly determine liability.
The decision is vacated and the case is recommitted for further hearing and findings consistent with this opinion.
So ordered.
Judges Fischel and McCarthy concur.