Summary
In Bourassa, we explained that in cases subject to § 11A, "[b]efore an 11A exam is commissioned, the claim must involve a dispute over medical issues...."
Summary of this case from Franco v. Winston's Restaurant, NoOpinion
BOARD NO: 072808-91
Filed: March 19, 1996
REVIEWING BOARD DECISION
(Judges Fischel, McCarthy, and Wilson)
APPEARANCES
Michael L. Najjar, Esq. for the employee at hearing
Dennis M. Finnerty, Esq. for the employee at hearing
Kevin M. Carroll, Esq. on brief to the reviewing board
Robert H. Barry, Esq. for the insurer
The employee made claim for weekly incapacity benefits and payment of medical expenses as a result of an industrial injury said to have occurred in the thirteen month period beginning March 1, 1990. We have the case on appeal by the employee from an administrative judge's hearing decision denying and dismissing the claim.
Richard P. Bourassa, who is now fifty years of age, started work for D.J. Reardon Company in 1982. For the next nine years he drove a beer delivery truck for his employer. At times he used a two wheeler truck to move cases of beer from his truck to the delivery point. On other occasions the beer had to be carried by hand. Mr. Bourassa also delivered half kegs of beer weighing one hundred and eighty pounds. These kegs had to be lifted off the delivery truck by two workers. "The job was quite heavy, entailing much lifting, pushing, pulling and climbing." (Dec. 4.)
On June 5, 1987 while making a delivery in the course of his employment, Bourassa stepped in a hole and fractured his right ankle. He was out of work until February 1988 and workers' compensation benefits were paid by Liberty Mutual Insurance Company (Liberty). The employee went in and out of work several times until November 14, 1988 when he "re-injured the ankle and went back out on workers' compensation." (Dec. 5.) Liberty paid benefits during each closed period of incapacity. On November 7, 1989 the employee underwent surgery to his injured ankle. Once again Liberty paid benefits while Bourassa was out of work. He returned to work on March 1, 1990 after fifteen months of incapacity. Once again Liberty paid benefits while Bourassa was out of work. When he returned to work he was pain free and on April 20, 1990 entered into a lump sum agreement with Liberty to settle his case for $31,000.00. This agreement redeemed Liberty's liability for payment of future weekly incapacity benefits or specific benefits under § 36. Liberty remained liable to pay future reasonable medical expenses causally related to the accepted industrial injury.
In addition to the preceding facts the administrative judge also made the following finding:
"After returning to his position delivering Anheuser Busch products the employee worked without incident for the next thirteen months. After a significant time of relatively pain free work, the employee began to experience pain in his right ankle again. The pain got progressively worse until April 8, 1991 when it caused him to stop working. There was no new injury or incident affecting his right ankle during these thirteen months. Three weeks later on April 30, 1991 the employee underwent his second right ankle surgery. In June, 1991 he attempted to return to work, but after a few days, it became apparent that he was never going to be able to resume his former job. Since then he has obtained a job as a taxi driver making significantly less money than he did for D.J. Reardon Co." (Dec. 6.)
An impartial medical examination under the provisions of § 11A (2) by Doctor Howard Taylor, an orthopedic surgeon, yielded a diagnosis of a fracture of the tip of the lateral malleolus and a ligamentous injury of the right ankle (Dec. 6.) Doctor Taylor further opined that the ankle pain experienced by Mr. Bourassa was due to degenerative arthritic changes causally related to the June 5, 1987 ankle fracture. Finally — and most significantly — Doctor Taylor opined that "the work done by the employee for D.J. Reardon Co. from March 1, 1990 to April 8, 1991 does not constitute a major contributing cause (emphasis ours) to his current ankle malady, even when considering that he was pain free on March 1, 1990. (Depo, 33 line 7)" (Dec. 7.)
After making his factual findings the judge then gave his view of the legal principles involved in this case. He rejected the notion that the outcome here turned on whether Mr. Bourassa's most recent, ongoing incapacity was either due to wear and tear during the thirteen month work period after the lump sum settlement (and thus not a new compensable injury) or arose as a result of his work "from a specific incident or series of incidents at work or from an identifiable condition that is not common or necessary to all or a great many occupations" (and thus compensable by the insurer which replaced Liberty on the risk). Zerofski's Case, 385 Mass. 590, 594-95 (1982). We think that this is the legal framework within which the facts should have been found, but the hearing judge thought otherwise. This, said the judge, is not the operative legal principle because there was a "particular incident" on June 5, 1987. (Dec 8.)
Next the judge turned to the employee's argument that the case was governed by the rule set out in Trombetta's Case, 1 Mass. App. Ct. 102, (1973). One in a line of successive injury cases, Trombetta stands for the proposition that a compensable injury "may develop gradually from the cumulative effect of stresses and aggravations." (Id. at 105) That rule, said the judge, did not apply to the case before him. In dismissing this principle the judge relied on the § 11A medical examiner's opinion "that the work performed by the employee during his last thirteen months on the job was not a `major contributing cause' of his ongoing partial disability". (Dec. 9.)
The successive injury rule was settled in Evan's Case, 299 Mass. 435, (1938). Where there is a series of compensable injuries the insurer covering the risk at the time of the most recent injury bearing a causal relation to the disability must pay the entire compensation.
Next the judge reviewed Long's Case, 337 Mass. 517 (1958) where the Supreme Judicial Court held that a new, comparatively minor injury can fix responsibility on the last insurer where the last injury made a contribution, however small to the disability. Again the judge rejected the successive insurer principle set out in Long as being not on point. (Dec. 10.)
"There was no new incident or `comparatively minor injury' in this case. There is only the inevitable effects of the degenerative condition caused by the injury of June 5, 1987."
Having concluded his legal analysis the judge then made general findings of fact. He determined that the employee continues to be partially incapacitated as a result of the injury of June 5, 1987. He found that any claim for weekly incapacity benefits as a result of the June 5, 1987 injury was foreclosed by the lump sum agreement with Liberty, a settlement which in retrospect was perhaps a "bad deal." (Dec. 11.) The judge determined that the impartial medical examiner's report submitted under § 11A was fully adequate and the medical issues not complex and thus afforded prima facie weight to Doctor Taylor's report. The judge concluded his decision by denying the employee's claim for benefits from American Policyholders, the insurer of D.J. Reardon on the employee's last day of work in June 1991 and for some unknown period prior thereto. We have the case on the employee's appeal of this denial.
Because we agree with the employee that the judge misapprehended the legal principles applicable to the facts found by him, we vacate the decision.
At all times pertinent here, the employer and the insurer took Mr. Bourassa in whatever state of health he was in during the thirteen month period of employment and the term of the policy. He did not have to comply with any standard of fitness or warrant that he was in perfect health. So when he returned to work in March 1990, the employer took him "as is", including whatever tendency that his ankle, weakened by the earlier fracture, might deteriorate.
By an amendment to G.L.c. 152, § 1(7A) which was expressly substantive and therefore prospective in operation the legislature narrowed the definition of personal injury. Applicable only to injuries occurring after December 23, 1991 it now reads in pertinent part as follows:
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.
This amendment modifies the long standing principle that an employer takes an employee "as is". The amendment preserves the "as is" rule in circumstances where a compensable work injury caused the pre-existing condition. In cases where the employee suffers from a non work related underlying medical condition a work injury or disease superimposed on that condition is compensable only to the extent the compensable injury or disease remains a major but not necessarily predominant cause of disability or need for treatment. The restrictions imposed by the 1(7A) definition of personal injury do not apply to the case before us because Mr. Bourassa had stopped working for Reardon before the December 23, 1991 effective date of the new law. Even if the new change to § 1(7A) did apply the employer would have to take Bourassa "as is" because his underlying condition — the fractured ankle on June 5, 1987 — was a compensable injury.
On recommittal then, the judge must address the second Zerofski Case question, that is whether the work performed by Mr. Bourassa from the time he returned from the first surgery on or about March 1, 1990 until he last worked in June 1991 aggravated or accelerated the onset of degenerative arthritis in the right ankle to the point of medical disablement. If there was such an aggravation or acceleration the judge must next decide whether or not the condition arose from an identifiable condition in Bourassa's work as a beer truck driver that is not common or necessary to all or a great many occupations. Zerofski's Case, supra. The fact that the major contributing cause is the ankle fracture of June 5, 1987, does not end the inquiry. That is simply the "as is" condition. The question is whether the employee's work as a beer truck delivery person aggravated or accelerated the problem, thereby making the successive insurer, American Policyholders, liable for a new injury.
The judge has already decided that there was "no new injury or incident affecting his ankle during these thirteen months" (Dec. 6.), thereby disposing of the first part of the Zerofski rule for deciding whether there is a compensable injury. The additional two parts of theZerofski's Case analysis requires findings, as set out above.
We turn next to the medical piece. The employee was examined by a medical expert under the provisions of § 11A(2). Section 11A was rewritten by St. 1991, c. 398, made effective July 1, 1992 and procedural in character. Since it is procedural it applies to the case before us even though all of the relevant work activity took place prior to its passage. Portions of the first two paragraphs are pertinent:
When any claim or complaint involving a dispute over medical issues is the subject of an appeal of a conference order pursuant to section ten A, the parties shall agree upon an impartial medical examiner from the roster to examine the employee and submit such choice to the administrative judge assigned to the case within ten calendar days of filing the appeal, or said administrative judge shall appoint such examiner from the roster . . .
The impartial medical examiner so agreed upon or appointed, shall examine the employee and make a report at least one week prior to the beginning of the hearing, . . . . The report of the impartial examiner shall, where feasible, contain a determination of the following: (i) whether or not a disability exits (ii) whether or not any such disability is total or partial and permanent or temporary in nature, and (iii) whether or not within a reasonable degree of medical certainty any such disability has as its major or predominant cause a personal injury arising out of and in the course of the employee's employment.
In the case before us Doctor Taylor, the impartial medical examiner, opined that the employee's work effort between March 1, 1990 and April 8, 1991 did not "constitute a major contributing case to his current right ankle malady, even when considering that he was pain free on March 1, 1990 (Depo, page 33, line 7)." (Dec. 7.) This response to question (iii) found in 11A(2) set out above does not help in determining compensability where, as here, the employer takes the employee "as is".
At hearing the administrative judge's first task is to decide whether the employee suffered an industrial injury arising out of and the in the course of employment. If there is no industrial injury the case is over and the provisions of § 11A don't matter. Here the administrative judge will make the decision by taking Mr. Bourassa "as is" and applying theZerofski guidelines. While the judge apparently found no new specific incident (Dec. 6), it remains for him to decide whether the physical effort expended by Mr. Bourassa was common and necessary to all or great many occupations. If he decides it is, the claim against the successive insurer fails. If he decides it is an uncommon effort, he then looks at the medical question and the § 11A opinion. Before an 11A exam is commissioned, the claim must involve a dispute over medical issues and the parties can not possibly know whether they have a medical dispute if they don't know the standard to be applied. Doctor Taylor, presumably responding to statutory question 11A(2) (iii), did not believe that the work performed during the thirteen months in question was a major contributing cause to his right lower extremity problem. However he may very well be of the opinion that the work aggravated or accelerated the condition. Indeed, the insurer's medical expert may even agree with the employee's medical expert that this was an aggravation or acceleration and then there would be no medical dispute at all — and thus no need for an 11A exam! But if a medical dispute remains, and an 11A(2) exam is required, the three statutory questions are to be asked only "where feasible?" If feasible means practical, suitable, or logical, question (iii) should not be asked in the case at hand.
If the claimed injury happened after December 23, 1991, the hearing judge would first look to the § 1(7A) definition of personal injury. By applying the facts found to § 1(7A) the judge would reach a conclusion as to whether there was a compensable personal injury. Only after deciding that there was an industrial injury would the judge look to the § 11A medical part of the case.
Since the § 11A medical report must be in hand before the lay hearing can begin, the judge must have a good grasp of the legal principles involved in a case early on. Also, at any deposition of the § 11A examiner, the attorneys must gear their questions to the applicable definition of personal injury.
Despite the lump sum settlement it would be open to the employee to look to Liberty for payment of medical expenses reasonably related to the June 5, 1987 injury.
We vacate the decision and recommit the case to the hearing judge who shall file a new decision in light of what we have said here.
So ordered.
Filed: March 19, 1996 ________________________ William A. McCarthy Administrative Law Judge
________________________ Carolynn N. Fischel Administrative Law Judge
________________________ Sara Holmes Wilson Administrative Law Judge