Opinion
Board No. 3126690
Filed: January 23, 1997
REVIEWING BOARD DECISION
(Judges Fischel, Kirby, and Wilson)
APPEARANCES:
David C. Williams, Esquire, for the employee.
John G. Preston, Esquire, for the insurer.
The employee appeals from a decision terminating weekly incapacity benefits for an accepted industrial injury. The employee argues that the judge misconstrued the issues and the evidence before him. We agree. We recommit the decision for the following reasons. G.L.c. 152, § 11C.
Although neither the decision nor the parties' briefs set forth the procedural history of the case with any specificity, it is clear from the insurer's filing a complaint to modify or discontinue benefits that the insurer paid compensation benefits after the employee became unable to continue work on May 11, 1990. The insurer does not contest original liability. (Dec. 2-3, 6.) The insurer's request to modify or discontinue compensation was denied after a conference on August 23, 1993, and the insurer appealed. (Dec. 3.)
At the hearing the parties stipulated to a "claimed" industrial accident in March 1989. (Dec. 5.) The judge intermingled recitations and findings as to the circumstances of that injury, leading to an unclear record for our review. SeeCruz v. Corporate Design Co., 9 Mass. Workers' Comp. Rep. 618, 619 (1995). (Dec. 5-6.) The following recitations were uncontradicted, and we take them to be intended as subsidiary findings of fact. Id.
The employee, a working foreman and driller of artesian wells, was pulling a drill bar weighing about 250 pounds attempting to replace it into the machine when the safety latch on the drill bar released, causing the drill to strike the employee's arms, knocking him off the rig and onto the ground. (Dec. 5.) The judge found that the employee "at that time, felt pain in his right wrist, both shoulders, lower back and the left side portion of his neck." Id. The employee worked in a lighter duty capacity for the next six months, just operating the machinery, and not doing the "bull work". (Dec. 6.) After six months the employee began to work at a heavier duty job, but on May 11, 1990, his last day of work, the judge found the employee complained of lower back and right wrist pain. Id. The employee complained that he could no longer work because of pain in his head, neck, left arm, lower back, and right wrist. Id.
The judge recited the course of medical treatment undergone by the employee subsequent to the stipulated industrial accident and prior to the discontinuance conference: 1) the employee had neck and shoulder surgery on October 25, 1990; 2) right wrist surgery on January 17, 1992; 3) back therapy and trigger point injections between October, 1992 and February, 1993; and 4) back surgery on July 29, 1993. (Dec. 6-7.)
At the discontinuance hearing, the insurer raised as an issue the reasonableness and necessity of the back surgery undergone by the employee on July 29, 1993. (Dec. 2.) Also raised as issues were continuing incapacity and causal relationship to the accepted work injury, and average weekly wage. Id. Liability was not at issue. Id. The testimony that the insurer had authorized neck, wrist and shoulder surgery went in without objection. (February 8, 1994 Tr. 47, 49.)
The only medical evidence at hearing was that of Dr. Howard Taylor, who examined the employee on November 23, 1993 under the provisions of G.L.c. 152, § 11A. (Dec. 3.) In his report Dr. Taylor opined that the wrist condition was causally related to the March 11, 1989 industrial injury, but had resolved, and that while the back and neck conditions were disabling, neither the back nor the neck had been injured at the time of the industrial accident. (Dec. 15-16.)
At deposition on January 27, 1994, based upon additional information, Dr. Taylor changed his opinions. Presented with medical data about the non union of the wrist fusion, the doctor opined that the employee would be unable to return to his usual duties as an artesian well driller. (Taylor Dep. 41, 46-47.) When he was asked a hypothetical question that incorporated the same history of injury recited by the judge, Dr. Taylor concluded that the employee's herniated lumbar disc was probably related to the work injury. (Taylor Dep. 52-53.)
The judge found that the "hypothetical facts that were presented to the doctor were basically and significantly those to which the employee testified at the Hearing. . . ." (Dec. 20.)
After hearing, the judge filed a decision on December 29, 1994, in which he adopted the testimony of Dr. Taylor that the "disability of (the employee's) wrist" has "resolved" and that "the employee's neck and back problems contribute to his present disability, [but are]. . . not caused by the industrial accident." (Dec. 24.)
The judge then "f(ou)nd the Insurer liable for the employee's wrist injury suffered as a result of his industrial accident in March of 1989." (Dec. 25.) He ordered the insurer to pay for the employee's wrist fusion. (Dec. 26.) He found that the employee's wrist injury had resolved and terminated weekly compensation benefits as of November 23, 1993. (Dec. 25-26.) He stated: "I do not find the disability to be causally related to the employment based on the credible lay and medical testimony because of the neck and back injury." (Dec. 25.) Finally, the judge assigned the employee an average weekly wage of $525.59. (Dec. 26.)
The employee argues on appeal that the administrative judge's decision was beyond the scope of his authority, and that he misconstrued the opinions of the medical expert, Dr. Taylor. We agree.
We note first of all that no issue was presented as to initial liability for the wrist injury, which apparently was accepted. (Dec. 2.) See Franco v. Winston's Restaurant, 10 Mass. Workers' Comp. Rep. ___ (August 29, 1996). Nor was there an issue raised as to liability for the wrist surgery. (See p. 3, supra) The judge's findings on matters not presented are superfluous.
We are unable to determine from the wording of the judge's finding on the neck and back injury whether he understood that original liability for those conditions was not contested by the insurer. (Dec. 2.) It would not be open to the judge to find the work injury caused no back or neck injury, because initial liability was not at issue. See Perez v. Bull HN Information, 10 Mass. Workers' Comp. Rep. ___ (December 31, 1996), slip op. at 3. See also Cadigan v. M.W.R.A., 10 Mass. Workers' Comp. Rep. ___ (December 30, 1996), slip op. at 3-4. At the time of the hearing the issues before the judge were causal relation and extent of disability from the insurer's request for discontinuance onward, not causal relationship from the onset of the claim. Cubellis v. Mozzarella House Inc., 9 Mass. Workers' Comp. Rep. 354, 356 (1995).
We also find merit in the employee's argument that the judge did not accurately characterize the medical opinions of the adopted expert, Dr. Taylor.
The judge found:
Dr. Taylor was forthcoming and adamant, both in his report and at his deposition, in his belief that the neck and back injuries of which the employee complaints [sic] were not caused by his industrial accident of March of 1989.
The doctor was very clear in his opinion as to causal relation of the wrist, back and neck conditions and was unwilling to change his mind.
(Dec. 23.)
Where medical issues are beyond the lay expertise of the fact finder, expert testimony is required to guide him. Robinson v. Contributory Retirement Appeal Board, 20 Mass. App. Ct. 634, 639 (1985) It was the final opinion of the only medical expert that the employee's wrist fusion, having not resolved, rendered the employee unable to return to his usual duties as an artesian well driller. (Taylor Dep. 41, 46-47.) In rejecting uncontradicted medical testimony, the judge must clearly and sufficiently express his reasons for doing so. Rowe v. Lilly Indus. Coatings. Inc., 9 Mass. Workers' Comp. Rep. 50, 52 (1995).
When a medical expert changes his opinion over the course of testimony, it is his final testimony that is usually considered as his evidence. Perangelo's Case, 277 Mass. 59, 64 (1931). Evidence of a prior inconsistent opinion as to the cause of incapacity which a medical expert had once entertained, but abandoned at the time of deposition, does not create substantial evidence of the prior opinion. Buck's Case, 342 Mass. 766, 770 (1961); Rowe v. Lilly Indus. Coatings, Inc., supra, at 52. A judge may not, without explanation, reject deposition testimony and base his findings instead on prior reports. Id.
Where the final medical opinion was that the wrist condition was causally related and disabling, there is no adequate medical foundation for the judge's conclusion that the wrist condition resolved. (Dec. 25.) Nor does the decision adequately address the issue of the ongoing causal relationship of the back condition and the back surgery undergone.
Section 11B requires the judge to decide each issue in controversy and set forth a brief statement of the grounds for each such decision. G.L.c. 152, § 11B. When a decision does not conform to the standard allowing for full appellate review, it is the duty of the reviewing board to recommit the case for further findings of fact and rulings on matters of law until a proper record is obtained. Crawford's Case, 340 Mass. 719, 721 (1960); Praetz v. Factory Mut. Eng'g., 7 Mass. Workers' Comp. Rep. 45, 47 (1993); G.L.c. 152, § 11C.
The decision is inadequate for appellate review. Accordingly, we remand this case to the judge to make further findings having evidentiary support on the issues properly before him; namely, continuing causal relationship and extent of incapacity, if any, stemming from the wrist, back, shoulder and neck injuries sustained on March 11, 1989, and the relatedness, reasonableness and necessity of the July 29, 1993 back surgery. Due to the passage of time and the interests of justice, the judge may take further medical evidence as he deems it necessary for his decision.
Since the case is being recommitted, the judge may make a determination on whether to consider the employee's "newly discovered evidence" on the issue of average weekly wage.
So ordered.
__________________________ Carolyn N. Fischel Administrative Law Judge
__________________________ Edward P. Kirby Administrative Law Judge
__________________________ Sara Holmes Wilson Administrative Law Judge
Filed: January 23, 1997