Opinion
Board No. 95495-88
Filed: April 27, 1995
REVIEWING BOARD:
Judges Wilson, Fischel, and McCarthy.
APPEARANCES:
Mark Dalton, Esq., for the employee.
Virginia A. Peel, Esq., for the insurer.
The employee appeals from the decision of the administrative judge dismissing her claim for weekly compensation and related benefits pursuant to §§ 34, 35, 13 and 30 for failure to prove a personal injury that was causally related to poor air quality in the workplace.
The employee, a Department of Social Services (DSS) program coordinator at 150 Causeway Street, Boston, argues on appeal that 1) there was sufficient evidence to show a causal relationship between the employee's flu-like symptoms and the work environment, and 2) that the judge erroneously excluded documentary evidence offered by the employee when the insurer stipulated to its admission. We address the latter claim first.
The employee's symptoms included "nausea, painful ears, lightheadedness, sweating, `snow' specks before her eyes and recurrent upper respiratory infections" (Dec. 3). The employee developed the symptoms in 1983, and they progressed to the point where she took a leave of absence from work (Dec. 7).
As an initial matter, it appears from the transcript and the decision that the employee neglected to request that the administrative judge mark the rejected documents for identification only, in order to preserve them for appellate review (Tr. 4-9; Dec. 1). Because there is no identification of the documents, which include four letters from doctors to various employees of the DSS and one letter from a state environmental engineer to the DSS director of office support services, we lack a complete, accurate appellate record and cannot accomplish our appellate function. See Johnson v. National Coating Co., 7 Mass. Workers' Comp. Rep. 159, 163 (1993). Accordingly, we do not reach the issue of whether it was error for the judge to exclude as exhibits the documents offered by stipulation of the parties, since the employee failed to preserve the issue on appeal. See Nicholas v. Lewis Furniture Co., 292 Mass. 500, 504 (1935). In a workers' compensation case, a decision will not ordinarily be reversed because of error in the admission or exclusion of evidence unless substantial justice requires reversal. See Indrisano's Case, 307 Mass. 520, 523 (1940); Sciola's Case, 236 Mass. 407, 413 (1920). On this incomplete record, however, we cannot even determine whether the excluded documents were expert medical reports admissible under 452 CMR 1.11(6).
While we cannot say that the judge's override of the stipulation is error, we think the better practice, given the stipulation, was for the judge to accept the exhibits in evidence, and weigh them as she deemed appropriate. A stipulation merely waives objection to introduction of evidence and does not enhance the reliability of the evidence. See Commonwealth v. Walker, 392 Mass. 152, 159 (1984). The probative value to be given any evidence is within the province of the administrative judge. See Robinson v. Contributory Retirement Appeals Board, 20 Mass. App. Ct. 634, 639 (1985).
Furthermore, the transcript reveals that the employee compounded her evidentiary oversight by failing to offer the information within the rejected documents through a request to either depose the signatories of the letters or allow them to testify at hearing (Tr. 9-10). Simply stated, the employee failed to avail herself of alternative evidentiary rules that would have permitted her to place the evidence on the record through testimony or to preserve the rejected documents for appellate review.
Without the five excluded documents or testimony as to their contents, the sole expert medical evidence before the judge in this medically difficult case was the medical report of Dr. Wepsic, for the employee, and the medical report of Dr. Ducatman, for the self-insurer. Dr. Wepsic "found no neurological problems or related reasons for disability" (Dec. 4). Dr. Ducatman opined that the employee's complaints of "headache, lethargy, and upper airway irritation are all reasonably ascribed to a poorly ventilated and maintained workplace. . . ." (Dec. 4) (emphasis added). The word "ascribe" is defined as "to attribute to a specified cause, source or origin." American Heritage Dictionary (2d ed. 1985). Dr. Ducatman further opined, however, that "[o]n the other hand" the employee's "long-standing sinusitis and especially labyrinthine disorder in the presence of other subclinical neurologic findings should not be related [to the workplace] in the absence of specific epidemiologic evidence of a chemical or infectious disease hazard. There is no such evidence presented" (Dec. 4).
The judge apparently adopted the latter part of Dr. Ducatman's opinion and concluded that the employee had suffered no compensable injury, without recognizing the distinctions the doctor drew between the various physical conditions and their causal relationship to the workplace environment. The judge thus appears to have misread Dr. Ducatman's opinion and overlooked the portion that supports causal relationship. While the doctor found the employee's "major problems [of infectious sinusitis and labyrinthine disorder] should be regarded . . . as unrelated to the work place," he also opined that the employee's lightheadedness, headache and similar symptoms "should be regarded as work-related in this environment" (Ducatman medical report at 3).
We remand the case to the administrative judge for further findings of fact. In rendering her decision, the administrative judge should, inter alia, make subsidiary findings that first address the workplace environment and then Dr. Ducatman's opinions as to both the employee's major physical ailments and minor complaints. If the judge finds on the basis of expert opinion that the work environment caused a physical impairment, she should go on to make findings regarding the degree and extent of physical disability and incapacity. See Scheffler's Case, 419 Mass. 251, 256 (1994).
As a final matter, the employee maintains, citing Lovely's Case, 336 Mass. 512 (1957), that the employee's case is so simple that causal relationship of the poor air quality at work to the employee's symptoms is a matter of general human knowledge not requiring expert medical evidence. We disagree. This case, involving alleged environmental hazards, is not so simple that a judge could determine the relationship between the employee's multiple symptoms and the air quality of the work place without resort to expert medical opinion. See Leveille v. SpecTran Inc., 5 Mass. Workers' Comp. Rep. 83, 84-85 (1991); Gannon v. S.S. Pierce Co., Inc., 4 Mass. Workers' Comp. Rep. 12 (1990). The judge must rely on the medical evidence presented to make that determination, and should consider all the evidence, as discussed above. She may reject it, or part of it, but should make clear her reasoning.
This case is remanded to the administrative judge for further findings consistent with this decision.
So ordered.
Judges Fischel and McCarthy concur.