Opinion
BOARD NO.: 03592894
Filed: September 15, 1998
REVIEWING BOARD DECISION
(Judges Levine, Wilson and Fischel)
Judge Fischel participated in panel discussions, but no longer serves as a member of the Reviewing Board.
APPEARANCES
Leonard Schneider, Esq., for the employee Michael Ready, Esq., for the insurer
The employee appeals the decision of an administrative judge ordering a closed period of compensation and finding no causal relationship between the employee's compensable injury and his continuing incapacity or his subsequent back surgery under the provisions of G.L.c. 152, § 1(7A). By improperly excluding a portion of the impartial examiner's testimony, the judge failed to consider his entire causation opinion. Therefore, we recommit the case for a hearing de novo.
The employee was a forty-three year old tractor trailer driver who had worked for the employer since 1986. His job duties included delivering and unloading food products; he lifted weights ranging from five pounds to 200 pounds and averaging seventy-five pounds. The employee first experienced pain in his right leg on July 12, 1994, while lifting a thirty-five to forty-five pound case of food he was delivering. He continued to work until August 11, 1994, when he saw the company doctor. By that time, he was also experiencing pain in his back. (Dec. 4-5.) The doctor prescribed physiotherapy and work-hardening, and the employee returned to work in lighter duty jobs. (Dec. 5-6.) Some of the lighter duty jobs were primarily clerical, involving answering the phone, using the computer, and filing. (Dec. 6, 7.) However, his other lighter duty jobs included several stints in the "repack room" where he was required to pick up cases weighing between five pounds and 100 pounds, put them on a table, unload them, and then repack the cases. The bending and lifting required by this job increased his pain. (Dec. 5.) In January 1995, he was reassigned to his regular delivery job with a helper. After a few days the employee was required to work alone. After four days alone, his pain increased to the point where he was returned to the repack room. He stopped working on March 8, 1995, and then attempted to return to work in the repack room in April, which resulted in more excruciating pain after approximately twenty hours of work. (Dec. 6.) About one year later, on April 16, 1996, the employee underwent back surgery. (Dec. 9.)
The insurer paid the employee § 34 temporary total incapacity benefits from October 16, 1994 to October 29, 1994, and § 35 benefits from August 14, 1994 to March 8, 1995 (exclusive of the two-week period in October when § 34 benefits were paid) at varying rates, (Dec. 2), on a without prejudice basis.
Following a denial of the employee's claim for further benefits at conference, the employee appealed to a hearing de novo, which was held on January 31, 1996. At the hearing, the parties stipulated to a date of injury of July 12, 1994, and to an average weekly wage of $715.77. The employee claimed § 34 temporary total incapacity benefits from March 8, 1995 to date and continuing, and payment of medical benefits under §§ 13 and 30. The insurer, while not contesting liability, did contest incapacity and extent thereof, and denied entitlement to medical benefits for the employee's upcoming back surgery, which occurred in April 1996. (Dec. 2-3.)
The issues to be decided were whether, under § 1(7A), the employee's industrial injury remained a major cause of the employee's ongoing disability and need for treatment, specifically surgery. (Dec. 4.) At the hearing, the judge credited "the employee's testimony regarding work experience, the injury and symptoms and treatment history." (Dec. 6.) However, the judge found that, although the employee claimed he lifted on average 75 pounds and up, "there is no evidence as to the frequency of his lifting on a daily, weekly, monthly, or yearly basis." (Dec. 4-5.) The judge also stated that he had, in the impartial physician's deposition, sustained, as hearsay, objections to the employee's attempts to introduce such evidence through a functional capacity evaluation not in evidence. (Dec. 5.)
General Laws c. 152, § 1(7A) (St. 1991, c. 398, § 14), applicable to injuries sustained on or after December 23, 1991, provides:
If a compensable injury or disease combines with a pre-existing condition, which resulted from an injury or disease not compensable under this chapter, to cause or prolong disability or a need for treatment, the resultant condition shall be compensable only to the extent such compensable injury or disease remains a major but not necessarily predominant cause of disability or need for treatment.
Admitted in evidence were the September 7, 1995 report of the § 11A impartial medical examiner, Dr. Gilbert Shapiro, three addenda to that report and the transcript of his April 30, 1996 deposition, which took place after the employee's back surgery. The judge stated that he adopted "all the opinions of Dr. Shapiro pertaining to diagnosis, disability and work capacity with restrictions, medical end result and exam findings." (Dec. 9.) Examining the employee's incapacity in relation to G.L.c. 152, § 1(7A), the judge began by finding that the employee's 1994 MRI report showed a small central disc herniation at L5-S1 and mild spinal stenosis at L4-5. (Dec. 8; 9/7/95 Imp. Rep. 2.) He also stated that the impartial physician diagnosed an underlying degenerative lumbar disc disease which was aggravated in the July 12, 1994 lifting incident. (Dec. 8; 9/7/95 Imp. Rep. 3; Dep. 15.) Based on the doctor's deposition testimony, the judge stated:
He opined that the L4-5 stenosis was either a developmental anomaly in that the spinal canal was narrowed congenitally and [sic] a non-causally related progressive degenerative disc disease which normally would not occur in a 47 year-old man (Dep. pp. 18-19).
(Dec. 9.) He further stated that Dr. Shapiro opined that the employee's duties were a minor contributing factor to the degenerative process; also that Dr. Shapiro "could not say to what percentage it was a contributing factor with any degree of medical certainty." (Dec. 9.) Later, the judge, in his general findings, concluded that there was insufficient medical evidence that the employee's work duties contributed to the pre-existing degenerative disc disease. (Dec. 13.) He concluded that there was "insufficient evidence . . . that any lingering complaints beyond September 7, 1995 [the date of the impartial examination] remained causally related to the industrial injury at a degree which comports with the requirement of § 1(7A) . . . that the residual complaints remain 'a major' part of the employee's disability." (Dec. 9-10.)
The judge used the word "duties"; however, Dr. Shapiro's testimony, which the judge was reciting, was limited to the effect of the July 12, 1994 industrial injury. (Dep. 21-22, 31-32.)
Turning to the question of whether the employee's surgery on April 16, 1996, was reasonable and necessary and related to his industrial injury, the judge found that Dr. Shapiro had opined that "both the congenital and degenerative disc disease would have necessitated surgery even if an industrial injury had not occurred" because of an anomaly at the L5 level which was developmental and not caused by the industrial injury. (Dec. 11; emphasis added.) He therefore found "insufficient medical evidence that the industrial injury caused or contributed to the developmental anomaly at the L5 level which necessitated the surgery." (Dec. 12-13.)
The impartial physician explained in his deposition that "developmental" meant that people are "essentially born that way." (Dep. 13.) Thus, "developmental" is synonymous with "congenital."
The judge found causal relationship as defined under § 1(7A) only through September 7, 1995, but he inexplicably awarded temporary total incapacity benefits from March 8, 1995 to January 31, 1996, (Dec. 12, 13), the date of the hearing and the date of a job offer from the employer, again in the repack room. The judge found that the employee could earn $10.25 per hour in the repack room, which he stated was the same as the employee's pre-injury wage. (Dec. 7.) The judge further found that the employee had reached a medical end result and awarded reasonable and adequate medical treatment through September 7, 1995. (Dec. 13.)
The employee appeals, alleging several errors. Most significantly, he argues that the judge improperly sustained all objections to the employee's attempts to elicit an opinion from Dr. Shapiro regarding the cumulative impact of the employee's lifting at work over the years. As a result, the impartial examiner's opinions on this issue were not considered. The employee contends that Dr. Shapiro's statements in his deposition, if admitted, would satisfy the requirements of § 1(7A) that a compensable injury, when combined with a non-compensable condition to cause disability, continued to be a major cause of the employee's ongoing disability and need for treatment, including surgery. The insurer argues that the judge properly excluded the impartial's opinion because the hypothetical questions posed to him were based on facts not in evidence and not supported by the employee's testimony. Even if the doctor's opinion were admitted, the insurer contends that his testimony did not support the employee's contention that the compensable injury remained a major cause of the employee's continuing disability and need for treatment, including surgery.
We agree in part with the employee's contentions; the judge improperly sustained the objections to one of the hypothetical questions posed to the doctor, thereby excluding relevant medical testimony on the cumulative effect of the lifting the employee did over the years on the employee's ongoing disability and need for surgery. Failure to consider such evidence on the issue of causal relationship is error, and the case must be recommitted for a hearing de novo. Wall v. LePages, Inc., 11 Mass. Workers' Comp. Rep. 359, 361 (1997); Ata v. KGR, Inc., 10 Mass. Workers' Comp. Rep. 56, 57 (1996).
A compensable injury must arise either from a specific work-related 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. Zerofski's Case, 385 Mass. 590, 594-595 (1982). A compensable injury can develop gradually and over time from the cumulative effect of stresses and aggravations at work.Trombetta's Case, 1 Mass. Appt. Ct. 102, 105 (1973); Zerofski's Case, supra at 592. Prior to the enactment of § 1(7A), an employer took an employee "as is," meaning that even the slightest work-related aggravation of a pre-existing work-related or non-work-related medical condition would create liability for a subsequent disability. Massarelli v. Acumeter Labs, 10 Mass. Workers' Comp. Rep. 703, 706 (1996); Dooley v. City of Lynn, 11 Mass. Workers' Comp Rep. 347, 350 (1997).
Section 1(7A) is applicable to injuries occurring after December 23, 1991; it changed the standard for determining causal relationship when a compensable injury or disease combines with a non-compensable pre-existing condition. In that situation, the employee must first prove that "but for" the combination of a work event and a non-work-related prior condition there would not be a compensable injury or need for treatment. He must then go on to prove that the industrial injury remains a major but not necessarily predominant cause of the employee's disability or need for treatment. Robles v. Riverside Mgmt., Inc., 10 Mass. Workers' Comp. Rep. 191, 196 (1996).
Where, as here, the parties tried by consent (Debrosky v. Oxford Manor Nursing Home, 11 Mass. Workers' Comp. Rep. 243, 244-245 [1997]) the employee's claim that the cumulative nature of the employee's work contributed to the degenerative process of his spine to cause an industrial injury and that that compensable injury combined with a pre-existing non-work-related condition, § 1(7A) applies. See Bourassa_v. D.J. Reardon Co., 10 Mass. Workers' Comp. Rep. 213, 218 n. 4 (1996) (if this cumulative injury case had occurred after December 23, 1991, the judge would first look to the § 1(7A) definition of personal injury). The analysis under Zerofski's Case, supra, also applies to the extent that the judge must determine whether the employee's incapacity arose from an incident or series of incidents, or a condition not common to all or a great many occupations. Id. at 594-595.
The insurer did not object to the employee's exploring with Dr. Shapiro the effect of cumulative work trauma on the employee's condition on the ground that the employee made no claim therefor. The objections to the employee's questions were on other grounds. (Dep. 26-33.) Debrosky, supra (issue tried by consent.) As pointed out in footnote 3, supra, the judge apparently misread Dr. Shapiro's testimony when the judge recited that Dr. Shapiro opined that the employee's "duties" were a minor contributing factor to the degenerative process (Dec. 9) and when the judge generally found that there was insufficient evidence that the employee's "work duties" contributed to the degenerative disc disease. (Dec. 13.) This misreading might indicate, however, that the judge had in mind that there was before him the question of what effect the employee's work duties in general, as opposed to the specific industrial injury, had on the employee's condition. The better and more prudent practice is for a written motion to amend the claim. See 452 CMR 1.23. There then will be no question that the parties and the judge are aware of the change in theory.
In the instant case, the judge found that the employee had a pre-existing developmental or congenital anomaly at the L-5 level (Dec. 11), which was non-work-related. Therefore, the case must be analyzed under § 1(7A). However, the judge appeared to consider the employee's degenerative disc disease as another pre-existing condition to which his work duties contributed in only a minor way or not at all. (Dec. 9, 13.) This finding is contrary to the actual testimony on the subject given by Dr. Shapiro, which was improperly excluded, that the cumulative nature of the employee's work would have a significant impact on his degenerative disc disease. The judge should have considered not only the single incident of July 12, 1994, but the cumulative effect of the lifting done by the employee over the years on his degenerative disc disease in determining whether the industrial injury remained a major cause of the employee's ongoing disability beyond September 7, 1995. Debrosky, supra.
The judge made this finding in conjunction with is discussion of whether the employee's surgery was reasonable and necessary.
But as pointed out in footnotes 3 and 5, supra, the judge appears to have misread the testimony of the impartial physician.
The judge's failure to consider the effect of lifting cases of food products for eight years at work arose from his ruling improperly sustaining an objection to a hypothetical question posed to Dr. Shapiro. "A hypothetical question to an expert cannot rely on misstatements of material facts." Bursaw v. B.P. Oil Co., 8 Mass. Workers' Comp. Rep. 176, 180 (1994), citing Bagge's Case, 369 Mass. 129, 134 (1975). However, slight factual errors in a hypothetical question will not undermine an expert's opinion. Compare Barbieri v. Johnson Equipment, 8 Mass. Workers' Comp. Rep. 90, 94 (1994);Daly v. City of Boston School Dept., 10 Mass. Workers' Comp. Rep. 252, 257 (1996); see LeBlanc v. Ford Motor Co., 346 Mass. 225, 232 (1963). Moreover, minor errors in a hypothetical question go to the weight rather than to the admissibility of the proffered evidence. Barbieri, supra, at 94, citing Potter v. John Bean Division of Food Machinery and Chemical, 344 Mass. 420, 424 (1962). Here, the employee's testimony, which the judge adopted, revealed that he lifted boxes or cases weighing five to 100 pounds, and at most averaging seventy-five pounds and up. His job involved physically picking up the cases and unloading them onto a hand truck at the delivery site. (Tr. 15-17.) He would then take the hand truck to the customer's cellar, storage room, or freezer and unload approximately 100 to 400 pieces. (Tr. 17-18.) He testified that he would do this at every stop, day in and day out. (Tr. 19.)
The employee posed three hypothetical questions to Dr. Shapiro relating to the effect of the employee's cumulative lifting on his ongoing incapacity and need for treatment. The judge stated in the decision that he sustained as hearsay all objections to hypotheticals based on a functional capacity evaluation not in evidence. (Dec. 5.) However, only the first hypothetical question described the employee's job requirements from a functional capacity evaluation, and it was never answered. (Dec. 24-30.) The third hypothetical question was appropriately excluded, as it contained more than minor discrepancies in its summary of the employee's testimony. However, the second hypothetical question posed to Dr. Shapiro was basically consistent with the employee's testimony:
The question posed to the impartial examiner was, in pertinent part: "[A]ssuming the truth of the job description as I've given it . . . assuming . . . he repeats those incidents thousands of times each day . . . if you accumulated all those incidents . . . would his work — the lifting of it, the lifting of boxes, the bending, and the repeated lifting, would that be more than a minor contributing factor to his disability? (Dep. 32; emphasis added.)
Q: He said he picks up cases. They weigh anywhere from 40 to 60 pounds. It's repetitive. He's gotta go fishing for — he doesn't have to load his truck. He drives his truck to restaurants and stores. He has to deliver the boxes. They're big boxes of food, like big cans of mustard and foods like that. He has to go looking through the truck to find the cases. Sometimes he has to pick them up. Then he loads them on a hand truck; and he rolls them in a non-motorized hand truck down a ramp. Sometimes he has to take them down a cellar, down some steps; and he has to put the item into a freezer. And he's doing hundreds of cases per day. And that's what he does all day long. . . . Assume that that's his job and it's been his work at Sysco . . . since 1986. Would that kind of work accelerate the degeneration process in his back?
A. Yes.
Q: Okay. And it would have a significant impact on the pace of degeneration, would it not?
A: Yes. It would.
(Dep. 30-31.)
Any discrepancy between the employee's testimony and the question posed to the impartial examiner is minor, and therefore would not vitiate his opinion. See Barbieri, supra; Daly, supra. In fact, the hypothetical assumed an average weight of each case or box less than that testified to by the employee. The frequency of the lifting was also not overstated in the hypothetical. The employee testified that he lifted 100-400 "pieces," which, based on his prior testimony, would appear to mean boxes, or cases, per stop. He did not testify as to how many stops he would make per day, but, even if we assume he made only one stop and lifted 100 to 400 pieces, the hypothetical question would not contain significant error. Moreover, that he indicated that he did basically the same thing at "every stop" and "day in and day out," and that he testified that his entire job was to drive a truck and deliver food products, leads to the conclusion that he made more than one stop per day. Thus, the assumption that he was lifting "hundreds of cases per day" is not inconsistent with the employee's testimony.
The judge stated that "[a]lthough the employee claimed that the average weight lifted was 75 pounds and up, there is no evidence as to the frequency of his lifting on a daily, weekly, monthly or yearly basis. (Dec. 4-5.) In fact, as set out in the text, there was such evidence. (Tr. 16-19.) The judge's erroneous assertion is central to the determination of the cumulative trauma claim, and is an additional ground for recommital.
Dr. Shapiro's response that the employee's lifting activities would have a "significant" impact on the pace of the employee's degeneration thus should have been considered by the judge in determining the issue of ongoing causal relationship under § 1(7A). The fact that the § 11A doctor does not use the term "major" is not fatal to a finding of ongoing causal relationship. "Significant" is defined, in pertinent part, as meaning "noteworthy, important, consequential." Oxford Encyclopedic English Dictionary 1350 (1991). "[I]t is the medical opinion in total not the presence or absence of any specific legal term that should govern whether [the doctor's] testimony supports a favorable finding under the § 1(7A) standard." Robles, supra at 198.
We cannot say what the judge's finding would have been had he considered the cumulative effect of the employee's work activities, along with the specific incident of July 12, 1994, in determining whether the work injury remained a major cause of the employee's disability beyond September 7, 1995. While the judge is free to adopt all, part or none of an expert's testimony, he is not free to mischaracterize it or fail to consider the entire record. Turcotte v. Westinghouse Elec. Corp., 9 Mass. Workers' Comp. Rep. 300, 303 (1995). Where the judge erroneously excluded, and therefore failed to consider, relevant medical testimony on the pivotal issue of causal relationship, his decision is arbitrary and capricious and cannot stand. Id.; see also Wall,supra at 361 (decision reversed where judge did not take into account the entire causation opinion of the § 11A examiner); Ata,supra at 57 (decision reversed and recommitted where judge mischaracterized expert's opinion on causal relationship).
Finally, we note that, as argued by the employee, the judge's finding that the employee could earn his pre-injury wage of $715.77 while working in the re-pack room earning $10.25 per hour is mathematically incorrect when based on a forty hour work week. On recommittal, if the judge finds the employee able to return to work in the repack room and if he finds that the employee's compensable injury remains a major cause of his ongoing disability or need for treatment, the employee would be entitled to partial incapacity benefits.
We reverse the decision of the administrative judge because he failed to consider the entire causation opinion of the impartial examiner. Since the judge who presided at the hearing is no longer with the department, the case is referred to the Senior Judge for recommittal to another administrative judge for a hearing de novo.
_________________________ Frederick E. Levine Administrative Law Judge
_________________________ Sara Holmes Wilson Administrative Law Judge