Opinion
BOARD NO. 100087-87
Filed: May 24, 1996
REVIEWING BOARD DECISION
(Judges Kirby, Maze-Rothstein and Smith)
APPEARANCES
Paul S. Danahy, Esq., for the employee Janet M. Gillen, Esq., for the insurer
The employee appeals from a decision denying his claim for compensation. The employee contends that the administrative judge improperly excluded the only medical opinion in the case, which opinion causally related the employee's carpal tunnel syndrome to the his work activities of washing and waxing cars. Because the medical opinion was based on facts in evidence, and was not speculative, we reverse the judge's exclusion of the medical testimony, and remand the case.
Charles Bria filed a claim for compensation for a carpal tunnel condition with an injury date of March 19, 1987. The insurer denied the claim and the case proceeded to conference. On August 21, 1990, the conference judge issued an order denying the claim. The employee appealed to a hearing de novo. The employee sought § 34 total incapacity benefits from March 19, 1987 to January 22, 1990, and § 35 partial incapacity benefits thereafter, together with § 30 medical benefits and § 36 permanent impairment benefits. The insurer disputed all elements of the employee's claim except for the average weekly wage. (Dec. 3-4.) At hearing, the employee and two witnesses for the insurer testified. The judge credited the testimony of the insurer's witnesses, in particular, with regard to the employee's job functions. (Dec. 10-12.) The judge discredited the employee's testimony. (Dec. 7.) The parties deposed Dr. Thomas Breen, the employee's treating orthopedic surgeon, on December 19, 1990. (Dec. 3, 10.) On June 30, 1992, the judge filed his decision denying the claim. (Dec. 12-13.) The employee appealed to the reviewing board.
One issue raised by the employee is dispositive of this appeal. That issue is whether the administrative judge improperly excluded the deposition testimony of the employee's treating physician, Dr. Thomas Breen, on the issue of causal relationship in response to hypothetical questions posed by the employee's counsel. Finding error, we reverse the judge's evidentiary rulings on the causation opinion, and remand the case for further findings.
The nature of the employee's job duties was disputed by the insurer. The judge adopted the testimony of witnesses for the insurer, that the job did not involve painting or buffing of automobiles — as contended by the employee — but merely cleaning the inside and washing the outside of the vehicles. (Dec. 6, 7, 10, 12.) The judge was well within his authority to do so. Sims v. General Motors Corp., 5 Mass. Workers' Comp. Rep. 314, 314 (1991). However, the judge then sustained objections to a hypothetical question which assumed only washing and waxing, not buffing or painting. The subject hypothetical question was as follows:
Q: [A]ssume that [the employee] washed and waxed cars for his daily employment in 1987 and he did so either manually or by machine by use of his arms and hands, and I ask you, Doctor, would you have an opinion based on a reasonable degree of medical certainty whether or not the carpal tunnel syndrome was causally related to the work activities as described?
MS. GILLEN: I have a few objections to that question. The first one being that it assumes facts not in evidence; No. 2 it assumes facts that are in dispute at the time; and No. 3 that the question calls for an answer which is speculative.
Q: You may answer the question.
A: Yes.
Q: In connection with that, Doctor, is it more likely than not in your opinion that the carpal tunnel syndrome experienced by [the employee] was related to repetitive hand motion he did in connection with his employment?
MS. GILLEN: Same objection.
A: Yes.
(Breen Dep. 12-13.) (Emphasis added). The judge sustained the objections. (Dec. 14.) The judge was acting outside the scope of his authority in rejecting the medical opinion based on the history of washing cars in the hypothetical. The doctor's opinion was indeed based upon facts in evidence — facts that the judge did find. The judge adopted the testimony of the insurer witnesses that the employee did wash cars. (Dec. 10-12.) One of those witnesses specifically testified that washing cars involved repetitive motion that was similar to that used in buffing. (Tr. 98, 102.) The objection that the facts in the hypothetical were in dispute should not have been sustained once the judge adopted the employer's version of the work duties which was the same as the facts assumed in the hypothetical question. The doctor's opinion was not at all speculative. The judge's ruling on the objection was erroneous, and we therefore remand the case for the judge to consider the issue of causal relation, with the assistance of the doctor's opinion thereon. See Martinez v. Tuttie Cleaners, 10 Mass. Workers' Comp. Rep. ___ (March 27, 1996) (judge must decide issue of causal relation by considering each factual scenario presented by the evidence and adopted in the judge's findings.)
So ordered.
_____________________ Edward P. Kirby Administrative Law Judge
_____________________ Susan Maze-Rothstein Administrative Law Judge
Filed: May 24, 1996
The judge specifically found that the employee was not a credible witness and rejected medical opinion testimony based on the history provided to the physician by the employee. Because the decision was within the scope of the judge's authority, not arbitrary or capricious, or contrary to law, we are required by G.L.c. 152, § 11C to affirm it.
Two issues are raised on appeal: 1) Whether the administrative judge improperly excluded the deposition testimony of the employee's treating physician, Dr. Thomas Breen, on the issues of causation and causal relationship in response to hypothetical questions posed by the employee's counsel; and 2) whether the judge misunderstood the ultimate opinion of Dr. Breen. The judge did not err.
The nature of the employee's job duties was disputed by the insurer. The judge adopted the testimony of the insurer's witnesses that the job did not involve buffing, waxing or painting, but merely cleaning the inside and washing the outside of vehicles. (Dec. 10, 12.) The judge sustained an objection to a hypothetical question which assumed waxing, mechanical buffing and painting. The judge acted within the scope of his authority in rejecting a medical opinion based on an inaccurate history. Collins' Case, 21 Mass. App. Ct. 557, 563 (1986); Wilson v. Perkins LaFrance, 9 Mass. Workers' Comp. Rep. 67, 71 (1995).
See Tr. 28-29 where the employee described the difference between buffing and washing. The judge clearly rejected the employee's claim that his work involved buffing, a waxing procedure using a machine. The judge adopted the testimony of William Padavano. (Dec. 10; Tr. 96.) Padavano's description of the employee's job did not include waxing. See Tr. 88, 90, 96. Padavano directly contradicted the employee's description of his work. (Tr. 89-90, 96, 98.)
This medical opinion had no prima facie weight. Compare the statutory weight now accorded opinions of impartial medical examiners pursuant to G.L.c. 152, § 11A(2).
The judge specifically found that the employee was not a credible witness. (Dec. 7.) He further found that Dr. Breen "had no personal knowledge of the Employee's condition prior to [October 12, 1989, more than 2 1/2 years post-injury] and his opinions regarding the course of the Employee's condition were based on the history provided to him by the Employee." (Dec. 9.) The judge's action in rejecting Dr. Breen's testimony was based on rational reasons and was therefore not arbitrary or capricious. Judges are not compelled to accept medical opinion evidence if there is a rational reason to disregard it. The 1991 amendment to G.L.c. 152, § 11C abrogated the rule inLettich's Case, 403 Mass. 389 (1988) that the reviewing board could substitute its own judgement on the credibility of witnesses who did not testify live. St. 1991, c. 398, § 31.
With respect to the second ground for appeal, the judge properly understood and weighed Dr. Breen's testimony. In reports, the doctor used equivocating language on causation: "may," "consistent with," "suggestive of," "conceivable that," "may have precipitated or exacerbated," "certainly conceivable, although one cannot prove definitively, that this problem is related to this type of manual work." (Dep. Ex. 1 [medical reports]; see also Dep. 11-12, 23, 24.) Although at one point a more definite deposition opinion that the work was causally related was excluded by the judge (Dep. 12-13), when asked again about his causation opinion, the doctor testified: "It was my feeling that his work was related to his carpal tunnel syndrome." (Dep. 16.) At another point the doctor affirmatively stated that it was his opinion within a reasonable degree of medical certainty that the employee's carpal tunnel syndrome was work-related. (Dep. 25.) However, in his answer to the very next question, the doctor said: "There was some doubt [as he had stated in the report]." (Dep. 25.) He reiterated that he had some doubt in his mind whether work precipitated or exacerbated the carpal tunnel. (Dep. 26.)
The fact that a witness changes his mind and renders at deposition an opinion different from that rendered in a report is competent evidence to diminish the credit to be given the final opinion. Perangelo's Case, 277 Mass. 59, 64, 177 N.E. 892, 893 (1931). In determining the weight to be given the doctor's deposition testimony, the judge did not err in considering the equivocations in the earlier reports.
This is not a situation where the expert clearly changed his opinion from that previously rendered. Instead it is one where the witness's deposition testimony was itself ambiguous and conflicting, thereby rendering the weight to be assigned to it within the sole discretion of the administrative judge. We have no power to disturb that factual finding. See G.L.c. 152, § 11C. In summary, because the decision was within the scope of the judge's authority, not arbitrary or capricious, or contrary to law, it should be affirmed.
_____________________ Suzanne E.K. Smith Administrative Law Judge