Opinion
Board No. 3995388
Filed: December 22, 1995
REVIEWING BOARD DECISION
(Judges Kirby, Smith and Maze-Rothstein)
APPEARANCES:
John T. Underhill, Esquire, for the employee
Annette Bell-Hardy, Esquire, for the insurer
The employee appeals from a decision of the administrative judge denying him benefits under §§ 13, 30, 34 and 35 for an injury to his right arm which he claimed was causally related to a prior compensable injury to his left hand. The employee contends that the administrative judge committed legal error. We agree, and therefore we vacate and remand the case.
The employee, fifty nine years of age, was employed for 24 years by Augat Systems ("Augat") as a draftsman. (Dec. 1.) On February 17, 1988, he sustained an industrial injury to his left major hand when he cut his finger reaching for a sharp, pointed knife at his drafting table. (Dec. 3.) The employee was diagnosed with a necrotizing hand infection caused by a streptococcal infection. He underwent numerous surgical procedures, but the infection progressed so aggressively that his left major hand, wrist, and about two inches of his arm were amputated, in April 1988. (Dec. 3, 6, 7.)
The employee's claim for his amputation, was the subject of a prior decision dated May 31, 1989 by another administrative judge who found that the employee had sustained a compensable injury and ordered § 34 temporary total incapacity and § 30 medical benefits from February 18, 1988 to November 28, 1988 when the employee returned to work. (Dec. 3.)
The employee's return to work in November, 1988 was hastened by Augat's offer to re-school him on a new computer system and to provide him with a meaningful job designed around his handicap. (Dec. 7; Tr. 10-14, 39.) The employee received the same rate of pay for his new work as he received prior to his left hand injury. He was to perform data entry and occasionally did perform his former job duties as a draftsman. (Dec. 7.) During this time, the employee tried to use a prosthetic device on his left hand, but subsequently he discontinued the effort because of pain and sensitivity in the stump. (Dec. 7.)
The employee testified that the promise of computer training never materialized and that ultimately there was little or no computer work for him to do. (Tr. 14-13, 31, 32.) The computer frequently broke down and when it did, he was told to "look busy." (Tr. '11-13.) He further stated that he eventually developed pain in his right arm as a result of his one-handed attempts to learn and operate the keyboard on his own. (Tr. 16.) The judge noted the employee's testimony regarding the onset of right arm pain, but made no findings of fact on the issue. (Dec. 7.) Nine months after returning to work, the employee left Augat, with pain in his right arm, because "he believed that the work was no longer meaningful." (Dec. 8; Tr. 13-15, 41.)
Upon leaving Augat, the employee moved to Maine to help in a new restaurant-lounge his son was opening. (Dec. 8.) He advanced approximately $22,000.00 to his son for this venture but had no ownership interest. (Dec. 8.) The employee had believed the restaurant work for his son would consist of administrative tasks, but he soon found that somewhat more physical tasks, would arise, such as bartending and some lifting of boxes, which he could not do. (Tr. 6, 16, 43.) He worked at the restaurant for about 4 hours on a daily basis from July 1, 1989 to August 27, 1989 when he "could no longer perform the duties due to pain" in his right arm. (Dec. 4, 8.) There is no contention that the employee received any remuneration for his work at the restaurant or was anything other than a volunteer. (Insurer's Brief, at 5; Tr. 17.)
The employee then filed a claim for § 35 partial incapacity benefits from July 1, 1989 to August 27, 1989 and for § 34 temporary total incapacity benefits from August 28, 1989 to date and continuing as well as § 30 medical benefits. His claims for the right arm condition were denied at conference and again after the evidentiary hearing.
In his decision, the judge adopted the opinion of Dr. Will Taylor, the insurer's medical expert, who opined that the employee's "right arm injury does not appear to be the result of substitution over the left in ordinary and customary activities but rather appears to have involved engagement in activities abusive to the right arm . . . specifically patterns of use during the summer of 1989 . . . are probably more relevant than substitution . . . in causation." (Insurer's Ex. 2, at 7; see Dec. 9.) Dr. Taylor, thus identified some causal connection between the industrial injury to the left arm and the development of a right arm condition due to its substitution after the amputation. Yet simultaneously, as regards the substitution issue, the doctor accorded medical significance to the 1989 summer volunteer work at his son's lounge but not to the work at Augat. Without resolving this internal inconsistency in this medical opinion, the judge adopted Dr. Taylor's opinion and found, that the employee was partially disabled, but that any disability was not causally related to the left arm injury or to any employment at Augat. (Dec. 11-12.) He dismissed the claim concluding that liability for any further disability was no longer Augat's responsibility. (Dec. 11.)
The employee appeals, raising several issues. We find one dispositive: whether the judge erred in applying the principles of law on this chain of causation case. Finding error, we vacate and remand for a hearing de novo.
When an industrial accident and injury is followed by a subsequent medical condition, if it also relates causally to the work injury, then that subsequent condition is also compensable. Gulczynski v. Granada Hosp. Group, 7 Mass. Workers' Comp. Rep. 151, 153 (1993). A non-employment related subsequent incapacity is causally related to the prior work injury, if the non-employment conduct that incited or contributed to the subsequent incapacity was normal and reasonable. Id.; Twomey v. Greater Lawrence Visiting Nurses Assoc., 5 Mass. Workers' Comp Rep. 156, 158 (1993). An insurer is responsible for all the consequences of an injury, provided a causal connection is shown and the chain of causation is not broken by an independent non-work related agency sufficient to make a new or related injury noncompensable. Gulczynski, supra at 152, citing L. Locke, Workmen's Compensation § 222 (2d ed. 1981). The judge's findings do not reveal whether he applied this legal standard and thus, the case is appropriate for remand.
The industrial accident here occurred on February 17, 1989. The pre-1991 definition of an injury therefore applies G.L.c. 152, § 1(7A). See St. 1991, c. 398, § 14.
Further, there are no specific findings on the key issue of whether the employee's right arm condition began before leaving Augat, as the employee testified. See Praetz v. Factory Mut. Eng'g. Research, 7 Mass. Worker's Comp. Rep. 45 (1993) (subsidiary findings must be such that appellate review can be performed). Such a finding undoubtedly would have bearing on the causal chain issue, even though the commencement of right arm pain after the employee left the employer would not necessarily defeat his claim. See Gulzynski, supra; Twomey, supra. But because there was no finding made on when the right arm condition began, our appellate review is obstructed.
Moreover, in matters that are beyond the common knowledge and experience of the ordinary layman, expert testimony is necessary. Josi's Case, 324 Mass. 415, 417 (1949). An expert's opinion must be to a probability and not speculative, equivocal or unclear. Ross v. New England Telephone, 7 Mass. Workers' Comp. Rep. 332, 334 (1993), citingHachadourian's Case, 340 Mass. 81, 86 (1959). Where a judge adopts an internally inconsistent expert opinion, the judge must make findings to resolve the inconsistency giving reasons for progressing from subsidiary to the ultimate decision reached. Ross, supra, citing Saxon Coffee Shop, Inc. v. Boston Licensing Bd., 380 Mass. 919, 929 (1980). It appears that, without addressing the inconsistency in Dr. Taylor's equivocal opinion on the issue of causation, the judge drew on the doctor's report to conclude that the employee's activities at the bar in Maine were "abusive" to his right arm. Given the language in that report we are unable to determine whether Dr. Taylor thought there was some causal relationship between the development of his right arm condition and the employee's work at Augat or whether no such relationship. (See supra language set out in text). Obviously, resolution of this inconsistency is the divide between a continuing compensable chain of causation and a causal break eliminating the insurer's liability. To merely conclude that, relying on Dr. Taylor's ambiguous opinion, there is no continuing causation does not meet the reasoning requirements set out in Ross, supra.
Finally, we see no clear support in the record upon which to find that the employee had in fact abused his arm during the summer of 1989. Thus, the medical opinion relied on for the judge's corresponding finding in that regard, presents a foundational problem. See P.J. Liacos, Massachusetts Evidence 414 (6th ed. 1994). However, no objection to the admission of the physician's statement calling into question the foundation of this opinion was made prior to the filing of the decision. As such, the challenge to this aspect of the judge's fact finding advanced for the first time on appeal, was not properly preserved for this appellate review.
Nevertheless, we vacate the decision because there are inadequate subsidiary findings on pivotal factual issues, because the judge may have applied an incorrect legal standard and because there was improper treatment of an internally inconsistent medical opinion. On remand, the judge must address anew the issue of causal relationship between the February 17, 1988 left arm injury and the subsequent right arm condition from July 1, 1989 forward. If the judge finds a causal relationship between the industrial accident and consequently the subsequent downgrading of his ability, it will be necessary to address the nature and extent of incapacity.
As a job offer was made, it raises the threshold issue of whether it was "bona fide", in nature. This requires a determination of whether the employee was physically and mentally capable of the work, considering the injury and whether it bore a reasonable relation to the employee's vocational capabilities. Major v. Raytheon Corp., 7 Mass. Workers' Comp. Rep. 90, 92-93 (1993). The decision before us is entirely silent on this issue. On remand, if continuing causation is found, the judge must assess the physical and mental requirements of the pre-injury job and decide whether the post-injury job offer was "suitable" and within the employee's capabilities to perform. Alexander v. New England Telephone, 7 Mass. Workers' Comp. Rep. 209, 211 (1993); G.L.c. 152, § 35D.
If the judge finds that there was a bona fide job offer, then he must address § 35D(5) on the issue of an earning capacity. SeeScheffler's Case, 419 Mass. 251, 256 (1994); G.L.c. 152, § 35D (5).
Section 35D (5) provides in pertinent part:
Implementation of this section is subject to the procedures contained in section eight. For purposes of this chapter, a suitable job or employment shall be any job that the employee is physically and mentally capable of performing, including light work, considering the nature and severity of the employee's injury, so long as such job bears a reasonable relationship to the employee's work experience, education, or training, either before or after the employee's injury.
It appears that the judge terminated § 30 medical treatment for the left extremity amputation. It is well settled under this statute that an employee is entitled to reasonable and necessary medical treatment for a compensable industrial injury, even where there may be no loss of earning capacity found. Tigano v. Acme Boot Company 8 Mass. Workers' Comp. Rep. 145 (1994). On remand, the judge should address this issue as well.
As the administrative judge who heard and decided the case is no longer with the department, we forward this case to the senior judge to assign for a hearing de novo.
So ordered.
_________________________ Edward P. Kirby Administrative Law Judge
_________________________ Suzanne E.K. Smith Administrative Law Judge
_________________________ Susan Maze-Rothstein Administrative Law Judge
Filed: December 22, 1995