Opinion
BOARD No. 029727-93
Filed: December 8, 1997
REVIEWING BOARD DECISION (Judges Wilson, Fischel and Levine)
The insurer appeals from a decision in which an administrative judge concluded that the employee suffered an industrial injury to his knees and back, and awarded continuing weekly benefits under § 34 for temporary, total incapacity. The insurer argues that the decision is arbitrary and capricious, because the judge failed to adopt the impartial physician's opinion, as expressed at his deposition, that the industrial injury was not a major cause of the employee's disability. We agree that the judge's finding of causal relationship is not supported by that medical evidence. We therefore recommit the case for further proceedings and findings consistent with this opinion.
The employee, who was fifty-eight years old at the time of the hearing, had spent his work life doing physical labor including maintenance work and the heavy construction work of cement finisher. (Dec. 4.) On August 25, 1993, the employee was doing cement work and, while moving heavy, steel manhole covers, felt a "pop" in his back. (Dec. 5.) Prior to this incident, the employee had experienced no disabling back pain, although the nature of his work subjected him to backaches that commonly would be expected from such a heavy duty occupation. (Dec. 5.) The employee continued to work on the day of the incident, but he experienced pain in his knees, and wore knee pads while working. His symptoms of knee pain increased until he left work a few days later on August 28, 1993. (Dec. 5, 9.) On September 6, 1993, the employee presented at St. Vincent's Hospital with pain in his knees, and he was treated for a left knee infection. (Dec. 5, 6.)
There is a discrepancy in the decision as to the date of this incident, which is reported as August 25 on page five, and August 23 on pages eight and ten.
Meanwhile, the employee's back worsened and he commenced treatment, which included therapy, a TENS unit, a brace and cane, and pain and sleep medication. (Dec. 6.) The insurer paid workers' compensation benefits without prejudice, but resisted the employee's claim for further benefits, denying, in relevant part, the occurrence of an industrial accident, causal relationship and extent of disability. (Dec. 1-2.) The claim was denied at the § 10A conference, and the employee appealed to a hearing de novo. (Dec. 1.)
The employee was examined by an impartial physician pursuant to G.L.c. 152, § 11A. (Dec. 7.) The physician took the employee's history of his injury, which differed from that found by the judge: While lifting a manhole cover he slipped, striking his right knee and experiencing pain in his back. (Dec. 8; Dep. of Dr. Carver 7, 11.) During his testimony at hearing, however, the employee denied that any slip occurred. (Dec. 8.) The impartial physician listed in his report the objective findings from diagnostic testing on the employee's back: spinal stenosis, disc protrusion at L5-S1, disc disease at L4-L5, and retrolisthesis at L1 and L2 with spurring. (Dec. 8; Exhibit A.) As his diagnoses, the doctor reiterated those findings and added resolved acute cellulitis and swelling of the left knee that resulted from the injury. The doctor opined that 40% of the resulting disability was due to pre-existing degenerative changes from many years of heavy labor and his age, and 60% was due to the work-related injury to the employee's knee and strain to his back. (Exhibit A.)
The judge did not find the employee's knee to be the source of any ongoing incapacity. (Dec. 10.) The medical evidence supports this finding, which neither party challenges. (Dep. 15-16) We note, however, the inconsistency between that medical evidence and the doctor's opinion in his report, that the knee injury was partly attributable for 60% of the employee's present disability.
When the doctor was deposed, he changed his opinion. The doctor testified at the end of his deposition:
Q: [A]ssuming that the history of an injury resulting in what you've described as a strain to Mr. Brooks' back is accurate . . . that injury resulting in a strain was not a major cause of the disability of Mr. Brooks as of September 20, 1994, over a year after that injury occurred?
A: Yes. A strain would be expected to cause a temporary increase in symptoms. And in this case it's probably a significant increase, assuming such a strain occurred, because of the predisposing effect of his underlying condition.
But the strain or sprain would not be expected to affect seriously the underlying progressive degeneration of his back which had been going on for years up to the date of the accident.
Q: And even based on the history given to you by Mr. Brooks, if believed, it was your opinion that what he suffered, based on that history was a strain to his back, correct?
A: Yes, sir.
(Dep. 26-27.)
The judge made the following findings based on the doctor's shifting opinion on causal relationship:
When deposed, Dr. Carver was presented with information relating to employee's initial treatment and complaints as to his knees only and whether his opinion would be affected as a result. He responded in the affirmative. The facts, however, are clear that Mr. Brooks was working with his "dreadful back" until August 23, 1993. Mr. Brooks admittedly has aches and pains in his back and his work moving manhole insets, bricks, cement, etc. was the event responsible for his disability found by Dr. Carver. Dr. Carver's history is also consistent in that the employee had no prior back problems which caused him to lose any time from work.
In view of my finding that Mr. Brooks sustained a back injury and knee related work induced personal injuries as alleged during the period of August 23, 1993 to August 28, 1993, I find the employee's back symptoms worsened following his release from St. Vincent's Hospital and that his underlying degenerative back disease had superimposed thereon a strain of the back. Dr. Carver found positive signs of medical disability — 60% work related both by history and examination with review of all the records and reports received.
(Dec. 8-9.) The judge found, based on the testimony presented at the hearing, that the employee had injured his knees and back while working on or about August 23, 1993. (Dec. 9-10.) The judge concluded that the employee suffered from a disability with a major causal relationship to the industrial injury and awarded continuing § 34 benefits. (Dec. 10-11.)
Under G.L.c. 152, § 1(7A), as amended by St. 1991, c. 398, § 14, "(i)f 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."
The insurer's contention on appeal that the judge's finding of causal relationship does not follow from the impartial physician's opinion expressed at his deposition is correct. As a general rule, "the opinion of an expert which must be taken as his evidence is his final conclusion at the moment of testifying." Perangelo's Case, 277 Mass. 59, 64 (1931). Here the impartial physician's final opinion, quoted above, was that "the strain or sprain would not be expected to affect seriously the underlying progressive degeneration of [the employee's] back . . . ." (Dep. 27.) The doctor explicitly answered the causal relationship inquiry posed under G.L.c. 152, § 1(7A): whether the employee's back strain no longer remained a major cause of the resulting disability, when viewed in the context of the employee's pre-existing, non-compensable, degenerative disc condition. That answer was, "Yes." (Dep. 18, 26.)
Although not specifically addressed by the parties, there is some doubt as to whether § 1(7A) should be applied to this case, since the § 11A physcian's opinion in his report was that 40% of the employee's disability was "(d)ue to pre-existing degenerative changes from many years of brick laying and his age . . ." (Exhibit A, emphasis supplied.)
The doctor's deposition testimony contradicts his previously expressed opinion that the industrial injury accounted for 60% of the employee's disability. (Exhibit A.) The judge relied on that earlier opinion in reaching his conclusion that there was causal relationship. (Dec. 9.) Although the judge did not accept the doctor's history that the employee did not complain of his back pain, (Dec. 8-9), that finding does not sufficiently explain away the doctor's deposition testimony that any back strain would not remain a major cause of disability one year post-injury. (Dep. 18.) The judge's conclusion is contrary to the general rule as set out in Perangelo's Case, supra.
Nonetheless, a doctor's earlier conflicting opinion may diminish the weight or credit to be given the later opinion. Id. at 64. "The inquiry should be whether the final opinion was based on a sound evidentiary foundation or was speculative or unsupported by the facts." Hayes v. Commonwealth of Massachusetts, 7 Mass. Workers' Comp. Rep. 232, 235 (1993), citing Boston Gas Co. v. Assessors of Boston, 334 Mass. 549, 578-579 (1956); McEwen's Case, 2 Mass. App. Ct. 63, 66-67 (1974). We have adopted and applied these principles of law to cases heard under the § 11A impartial medical examination system. See, e.g., Carmichael v. A.T. T. Technologies, 9 Mass. Workers' Comp. Rep. 791, 792-793 (1995).
In the case at hand, the change in the doctor's opinion cannot be attributed to alleged differences in the histories told to the doctor as opposed to the judge at hearing. The doctor stated directly that any strain would no longer have been a major cause of disability one year after its occurrence, (Dep. 18), and that whatever the history, the employee's back injury was a strain. (Dep. 27.) Cf. Perangelo's Case, supra at 63-64 (change in opinion based on consideration of inspection report indicating employee's report of employment condition, previously relied upon, lacked credibility). In Carmichael, supra, we noted: "Should the § 11A examiner fail to offer a satisfactory explanation for a change of opinion, the administrative judge should carefully weigh the adequacy of the § 11A evidence and consider allowing additional medical testimony." Id. at 793, n. 2. We think that this is a case in which the judge must allow additional medical evidence, due to the unexplained change in the assessment of causal relationship — from a 60% cause to less than "a major" cause. The doctor arrived at disparate, irreconcilable conclusions based upon the same history, without any explanation.
The hallmark of § 11A medical testimony is its status as exclusive and prima facie evidence. "Such impartial physician's report shall constitute prima facie evidence of the matters contained therein. . . . [N]o additional medical reports or depositions of any physicians shall be allowed by right to any party . . . ." G.L.c. 152, § 11A(2). In Mendez v. The Foxboro Co., 9 Mass. Workers' Comp. Rep. 641 (1995), we examined how the judge's finding of inadequacy of a § 11A medical report, thereby allowing the introduction of additional medical evidence, can affect the prima facie force of that report. Id. at 643-644. See also Lebrun v. Century Markets, 9 Mass. Workers' Comp. Rep. 692, 696-697 (1995). In both Mendez and Lebrun, we cited Cook v. Farm Service Stores, Inc., 301 Mass. 564 (1938), for its seminal exploration of the character of prima facie evidence in general, albeit within the context of auditors' reports. Id. We revisit Cook:
When does prima facie evidence . . . lose its artificial legal force and compelling effect, and retain only its inherent persuasive weight as a piece of evidence to be considered with other evidence in finding the fact?
. . .
When facts found by an auditor [here, the § 11A doctor] warrant either of two contrary inferences, a further finding arrived at by drawing one of those inferences cannot have any artificial [prima facie] force, even for a moment. As soon as the [§ 11A doctor's] report is presented, it raises a pure question of fact.
Cook, id. at 566, 568.
The unexplained, internally inconsistent opinion of the § 11A physician in the present case cannot be accorded prima facie force under the Cook reasoning. It should therefore "retain only its inherent persuasive weight as a piece of evidence to be considered with other evidence. . . ." Cook, id. at 566 (emphasis added). It logically follows that additional medical evidence is mandated under the circumstances presented by this case. The impartial physician's opinion evidence is inadequate because it is too self-contradictory to "compel the conclusion that the evidence is true. . . ." Id. As a practical matter, if the evidence cannot stand alone as prima facie, it cannot be exclusive. § 11A. The doctor's opinion retains status only as ordinary evidence to be weighed with any other medical evidence, within the parameters set by Perangelo's Case, discussed above.
Accordingly, we recommit this case for the introduction of additional medical evidence and for further findings consistent with this opinion. G.L.c. 152, § 11C.
So ordered.
____________________________ Sara Holmes Wilson Administrative Law Judge
____________________________ Carolynn N. Fischel Administrative Law Judge
____________________________ Frederick Levine Administrative Law Judge
Filed: December 8, 1997