Opinion
BOARD No. 05310487
Filed: January 26, 1996
REVIEWING BOARD DECISION
(Judges Kirby, Maze-Rothstein and Smith)
APPEARANCES:
Ramsey A. Bahrawy, Esq., for the employee
Paul R. Matthews, Esq., for the insurer
The employee appeals from a decision in which the administrative judge authorized the insurer to discontinue compensation benefits, and contends that the decision was arbitrary and capricious. Finding error, we vacate the decision in part and recommit the case for further findings consistent with this opinion.
The employee sustained a back injury on July 31, 1987 while working as a seamstress. The insurer accepted liability and began paying temporary total incapacity benefits as of August 12, 1987. The insurer filed a request for modification or discontinuance, and an administrative judge issued a conference order dated January 27, 1992 which assigned the employee a $159.92 earning capacity on her stipulated average weekly wage of $379.92. The parties cross-appealed, and a hearing de novo was held before a different administrative judge on December 3, 1992. On November 3, 1993, the judge filed his decision denying the employee further compensation and medical benefits. The employee appealed. (Dec. 1-3, 14.)
Among the employee's many contentions, we find one to be dispositive. The employee argues that the judge's finding that the employee had failed to prove causal relation between the industrial injury and her present disability was based on a flawed reading of the medical evidence, rendering his conclusion arbitrary and capricious. We agree.
Causal relation is a matter beyond the common experience of the ordinary layman and therefore, expert medical testimony is required.Casey's Case, 348 Mass. 572, 574-575 (1965). Although a judge is free to adopt all, part or none of an expert's testimony, he is not free to mischaracterize it. Turcotte v. Westinghouse Elec. Corp., 9 Mass. Workers' Comp. Rep. 300, 303 (1995).
In the instant case, the judge found that the employee was presently disabled, based on the great weight of the expert medical opinions before him. (Dec. 9.) The judge went on to find, however, that there was no causal relation between the employee's 1987 industrial injury and her disabling back condition, based on the reports of Drs. Nasif and Carter. The judge stated that ". . . doctors Nasif and Carter both imply that there is no causal relationship without addressing the point directly[,]" and "[n]either of these doctors considers a traumatic cause in their reports." (Dec. 9-10.)
The judge mischaracterized Dr. Nasif's report. In that report, Dr. Nasif opined that his impression of the employee's condition was "chronictraumatic degenerative disc disease of the lumbar spine." (Employee's Ex. 5.) (emphasis added) The only evidence of trauma the record shows in this case was the industrial accident in 1987, which history the doctor recounted in the first paragraph of his report. The judge's finding, that Dr. Nasif did not consider a traumatic cause to the employee's present disability i.e. the industrial accident is therefore arbitrary and capricious. "As the conclusion that [the employee had not proved causal relationship] is based in part on an erroneous finding, the decision cannot stand and the case must be recommitted. See Cibene v. Brentwood Realty Trust, 8 Mass. Workers' Comp. Rep. 172, 173 (1994). This is particularly true here, since the judge characterized the opinion of Dr. Doherty, the only doctor who specifically found no causal relationship, as "somewhat suspect." (Dec. 11.)
Accordingly, we vacate the judge's finding on causal relationship and the resultant discontinuance of the employee's compensation benefits. We affirm the judge's determination that the insurer's appeal of the conference order was timely filed. We recommit the case for further findings and reinstate the conference order dated January 27, 1992 in the interim. The judge may take further testimony as he deems necessary.
_________________________ Edward P. Kirby Administrative Law Judge
_________________________ Suzanne E.K. Smith Administrative Law Judge
_________________________ Susan Maze-Rothstein Administrative Law Judge
Filed: January 26, 1996