Opinion
BOARD No. 088747-89
Filed: February 2, 1996
REVIEWING BOARD DECISION
(Judges Kirby, Maze-Rothstein and Smith)
APPEARANCES
Ronald S. Barnes, Esq., for the employee
Linda Manning, Esq., for the insurer
The first insurer ("the insurer") in this case of successive knee injuries appeals from a decision holding it liable for a continuing period of partial incapacity that commenced after the second injury occurred. The insurer was not on the risk for the second injury, which occurred when the employee worked for a different employer, in California. The administrative judge found that the second incident was not an aggravation of the employee's first injury, and that the sole cause for the claimed incapacity was the first injury. Because we find the decision inadequate for appellate review, we remand. G.L.c. 152, § 11C.
The second insurer here is the insurer of the San Diego Padres baseball franchise in California, where the 1991 incident occurred. The second insurer was not a party in this case.
Barrett played for the Boston Red Sox, when he sustained an injury to his right knee in a game on June 4, 1989. Surgery was performed two days later, which consisted of a right knee arthroscopy, debridement of the anterior cruciate ligament (ACL), and a partial lateral meniscectomy. Barrett started playing again after being incapacitated for approximately two months. Barrett could not function at the same level as he had prior to the injury, feeling that his knee was at 85-90% of its pre-injury status. On October 23, 1989, Barrett underwent a second arthroscopic surgery. The post operative diagnosis was impinging fat pad, suprapatellar plica, recurrent medial plica, the absence of a functional ACL, and a partial tear of the posterior horn medial meniscus. When Barrett came back to play in the spring of 1990, his knee was at 85-90% of its pre-injury function. As a result, Barrett lost his status as the starting second baseman. He was paid in full for his services through the 1990 season ($1,300,000) but was released by the Red Sox in December 1990. Barrett then signed a contract with the San Diego Padres for $100,000 for the 1991 season. (Dec. 6-10.)
The insurer does not raise, so we do not address, the impact of the § 1(4)(b) exception to the definition of an "employee" under the Act. That exception regards "persons employed to participate in organized professional athletics, while so employed, if their contracts of hire provide for the payment of wages during the period of any disability resulting from such employment. . . ."
While with the Padres, Barrett's knee continued to function at 85-90% capacity. On May 7, 1991, Barrett suffered another injury to his right knee while turning a double play during a game. Five days later Barrett underwent an arthroscopic and partial medial meniscectomy. The post operative diagnosis was a bucket handle tear of the medial meniscus and a chronic ACL tear. Within several weeks of his surgery, Barrett's knee had recovered to the 85-90% of its pre-1989 injury function, or 100% of its capacity during the 1990 and pre-injury 1991 seasons. Nonetheless, the Padres released Barrett in June 1991, and he has not been able to find work in professional baseball since then. (Dec. 10-11.)
Barrett underwent ACL reconstructive surgery on July 30, 1992. The treating physician opined that Barrett's 1989 ACL injury resulted in instability and subluxation episodes in his knee evidenced by continued meniscal tears. (Joint Ex. 3.) Following the surgery, Barrett felt that his knee was close to its function prior to the original 1989 injury. However, by the time of hearing on October 11, 1993, Barrett felt that he could no longer play major league baseball. (Dec. 12.)
Barrett filed a claim for partial incapacity benefits from October 1, 1991 and continuing, which the insurer did not voluntarily accept and the judge denied at conference. (Dec. 5.) At hearing, expert medical evidence was introduced on behalf of Barrett and the insurer. Barrett's expert opined that the original 1989 injury was the continuing cause of all of Barrett's subsequent problems with his right knee, including the 1991 bucket handle tear to the meniscus. (Employee Ex. 2, Dr. Doherty Rep. at 1.) Since the ACL was functionally absent from Barrett's knee joint as a result of the June 1989 injury and surgery, Dr. Doherty felt that there was no aggravation in 1991, but only the normal sequelae of the ACL deficient knee joint. (Dec. 15-17.) The insurer's expert opined that the 1991 incident was a new injury that aggravated the effects of the June 1989 injury to the knee joint. Dr. Berkovitz felt that the condition of instability in Barrett's knee was much greater after the 1991 injury than it had been after the 1989 injury. (Dec. 17-18.)
The judge adopted Dr. Doherty's opinion and found that Barrett was incapacitated from his employment as a professional baseball player, and that the causal relation of the incapacity went back exclusively to the 1989 industrial accident. The judge found that the 1991 incident was not an aggravation and did not break the chain of causation between the 1989 injury and the present incapacity. The judge therefore awarded partial incapacity benefits as against the insurer, at the maximum weekly rate of $565.94 per week, based on an average weekly wage of $21,153.84 and an earning capacity of $1923.08. (Dec. 18-20.)
ISSUES:
The insurer raises three issues: 1) the single member erred in ordering the first insurer to pay workers' compensation benefits where there was a second injury and competent testimony of a causal connection between the later work and the disability; 2) a finding of continuing disability is unsupported by the evidence and must be reversed; and 3) the findings of the single member are insufficient. We agree with the last argument and after instructing the judge regarding the correct legal standards to apply, remand for further findings of fact and conclusions of law.
LEGAL ANALYSIS
Under Massachusetts law, the insurer which covered the risk at the time of the most recent of successive injuries bearing causal relation to a claimed incapacity must pay the entire claim. Casey's Case, 348 Mass. 572 (1965). All that is necessary for such an attachment of liability is that the last injury be "even to the slightest extent a contributing cause of the subsequent disability." Rock's Case, 323 Mass. 428, 429 (1948). In the instant case, it is therefore incumbent upon the employee to show that the 1991 incident in no way contributed to whatever incapacity followed.
The judge adopted Dr. Doherty's testimony that the 1991 bucket handle tear was not an aggravation, but a continuation of the process set into motion from the 1989 injury. (Dec. 16.) The doctor stated that the 1991 incident was not an aggravation because 1) the employee's ACL had been removed, and "[y]ou can't aggravate something that's missing," 2) the 1991 bucket handle tear was simply a part of "the normal sequelae of the anterior cruciate ligament deficient knee joint," and 3) the wear on the knee joint when it was placed in stress caused it to be more prone to injury in its other components due to the ACL deficiency. (Doherty Dep. 26-27.) The judge's legal conclusion from these facts, that the 1991 event was not one to which liability attached (dec. 16-17, 19), was flawed.
Where an "aggravation" occurs during employment, liability attaches if the current work activity contributes to the ensuing incapacity "even to the slightest extent." Rock's Case, supra. The medical evidence in this case does not compel a conclusion of no liability of the second insurer. A finding that the 1991 event was simply part of the "sequelae of the anterior cruciate ligament deficient knee joint" in no way excludes a finding of that event as an aggravation within the meaning of the Act.
It is . . . axiomatic that the employer takes the employee as he finds him and that aggravation of a pre-existing disease to the point of disability is a compensable personal injury within the meaning of the act. Brightman's Case, 220 Mass. 17, 20 (1914) ["Acceleration of a previously existing . . . disease to a[n] . . . end sooner than otherwise it would have come is an injury within the meaning of the workmen's compensation act."] The principle is no less sound when the pre-existing condition is related to an earlier industrial injury.
Arbogast v. McCord-Winn, Inc. 5 Mass. Workers' Comp. Rep. 189, 194 (1991). The standard to be applied in the analysis is whether the 1991 incident boreany causal relation to the incapacity that the employee suffered subsequent to that event, "even though the earlier injury on . . . [June 6, 1989] was also a contributing cause or even the major contributing cause." Blanco's Case, 308 Mass. 574, 577-578 (1941).
The decision is silent regarding the legal standards which the judge applied. As a result, we cannot be assured that he applied the correct law to the facts, and therefore must remand. G.L.c. 152, § 11C. Upon remand the judge should find whether the employee's turning a double play in 1991 caused, in any way, even slightly, an acceleration of the degeneration of the already injured knee: i.e whether it constituted an "aggravation" as a matter of law.
The judge should also clarify the significance of the testimony which he adopted from Dr. Doherty "that wear on the ACL deficient knee [was] increased when stress [was] put on it, "causing" a continuation of an ongoing process that was to be expected in a ACL deficient knee," namely "further instability, tearing and degeneration." (Dec. 16-17.) He should describe the employee's 1991 activities which were stressful to the employee's knee. The judge should then utilize the legal principles set forth in Zerofski's Case, 385 Mass. 590 (1982) to determine whether the claimed period of incapacity is simply the result of a natural physiological progression from a pre-existing medical condition or the result of a new compensable injury. "To be compensable [as a new injury or aggravation in 1991], the harm must arise either from a specific incident or series of incidents at work, or from an identifiable condition that is not common and necessary to all or a great many occupations." Id. at 594-595. See Smick v. South Central Mass. Rehabilitative Resources, Inc. 7 Mass. Workers Comp. Rep. 84, 86-87 (1993); Thompson v. Tambrands, Inc., 9 Mass. Workers' Comp. Rep. 282 (1995).
The Massachusetts successive injury rule is based on equitable principles and is designed to prevent a double recovery. Mizrahi's Case, 320 Mass. 733, 736-737 (1947). If, under California law, the second insurer is not liable for an aggravation, then there is no potential for double recovery and the successive injury rule would deprive the employee of benefits which would otherwise be due. We do not address this conflict of laws issue, leaving it to the parties to argue on remand whether there is an aggravation at work in 1991 for which the insurer on the risk at that time is not liable under California law and whether under that circumstance the first insurer here should remain liable for all benefits due.
To provide proper appellate review, we also need further findings on the issue of continuing incapacity and its causal relationship to the first injury and the 1991 incident. The judge found that "[a]t the end of two to three weeks [after the May 12, 1991 surgery the employee] was one hundred percent of what he had felt before that [May 7, 1991] injury, which was eighty-five to ninety percent of what he [had] been prior to the 6/04/89 injury." (Dec. 11.) If the employee was back to pre-1991 baseline within several weeks of the 1991 incident, then the second insurer's responsibility for continuing benefits would cease and the first insurer would again become liable for continuing payments. We note that the employee's claim for benefits commences after this date, on October 1, 1991, the end of his contract with the Padres. The period of incapacity prior to that date is not in controversy.
(Employee's Issues Statement.)
Section 35, applicable to this case, provides:
Section 35 was amended by St. 1991, c. 398, § 63. The 1991 amendment was specifically deemed substantive and therefore under § 2A applicable only to injuries after its effective date, december 23, 1991. It does not apply to this case because both injuries here occurred prior to its adoption.
While the incapacity for work resulting from the injury is partial, during each week of incapacity the insurer shall pay the injured employee a weekly compensation equal to two-thirds of the difference between his average weekly wage before the injury and the weekly wage he is capable of earning after the injury, but not more than the maximum weekly compensation rate.
The total number of weeks of compensation due the employee under this section shall not exceed six hundred.
G.L.c. 152, c. 152, § 35 as appearing in St. 1985, c. 572, § 44. Upon remand, the judge must apply this § 35 formula utilizing § 35D to establish the employee's earning capacity during the period of his claim. Dawson v. New England Patriots, 9 Mass. Workers' Comp. Rep. ___, slip op. at 4-5 (November 21, 1995).
Section 35D applicable to this case provides:
For purposes of sections thirty-four, thirty-four A and thirty-five, the weekly wage the employee is capable of earning, if any, after the injury, shall be the greatest of the following:
(1) The actual earnings of the employee during each week.
(2) The earnings that the employee is capable of earning in the job the employee held at the time of injury, provided, however, that such job has been made available to the employee and he is capable of performing it. The employee's receipt of a written offer of his former job from the employer, together with a written report from the treating physician that the employee is capable of performing such job shall be prima facie evidence of an earnings capability under this clause.
(3) The earnings the employee is capable of earning in a particular suitable job; provided, however, that such job has been made available to the employee and he is capable of performing it. The employee's receipt of a written report that a specific suitable job is available to him together with a written report from the treating physician that the employee is capable of performing such job shall be prima facie evidence of an earnings capability under this clause.
(4) The earnings that the employee is capable of earning.
(5) 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.
G.L.c. 152, § 35D, as appearing in St. 1985, c. 572, § 95.
CONCLUSION
In summary, because we find the decision flawed, we remand the case to the administrative judge who rendered the decision for a new decision consistent with this opinion. Pending remand, the hearing order of compensation shall remain in effect. In light of the passage of time during the pendency of the appeal, if either party alleges a change in medical condition or vocational skills since the date the record closed or the judge finds that justice so requires, additional evidence may be taken prior to the entry of the remand decision.
So ordered.
________________________ Suzanne E.K. Smith Administrative Law Judge
________________________ Edward P. Kirby Administrative Law Judge
________________________ Susan Maze-Rothstein Administrative Law Judge
SKS Filed:February 2, 1996