Opinion
BOARD No. 03599491
Filed: October 11, 1995
REVIEWING BOARD DECISION
(Judges Fischel, McCarthy and Wilson)
APPEARANCES:
Paul M. Sushchyk, Esq., for the employee.
Karen A. Loughlin, Esq., for the self-insurer on appeal.
Charles W. Dixon, Esq., for the self-insurer at hearing.
The self-insurer on the risk on an undisputed date of injury of March 23, 1979 appeals from a decision in which the administrative judge found it liable for a three week period of subsequent incapacity commencing on June 29, 1990. The self-insurer argues that the judge's decision is erroneous as a matter of law, alleging that there are successive insurers, one of which should be liable for the subsequent incapacity. The self-insurer also argues that the judge made an arbitrary finding regarding the initial incident to which he attached liability for the 1990 incapacity. We affirm the decision, finding no error in either respect.
On March 23, 1979, the employee was working for Guardian Industries, a manufacturer of architectural glass, when he had an industrial accident. (Dec. 1, 4). The employee was a blast head operator, and he was responsible for keeping pieces of glass running smoothly out of the furnace, where they were tempered at approximately 1300°. (Dec. 4). On that date, the furnace became overloaded, and pieces of glass, cooled to about 800°, began overlapping and breaking. (Dec. 4). One 15 inch piece of glass fell and struck the employee in his right knee, where it "blew up" and broke when it penetrated his knee. (Dec. 4-5). There were pieces of glass under the surface of his skin, and a piece sticking about one inch out of the employee's knee. (Dec. 5). The employee was transported to the hospital, and treated.
The employee continued to work at Guardian Industries for the next seven years, during which time he experienced snapping, popping and clicking in his right knee. (Dec. 5). The knee was often puffy, and the employee experienced difficulty with various activities, such as lifting and climbing stairs. (Dec. 5). From 1986 until 1990 the employee did construction work for a number of different employers, during which time he had ongoing problems with his knee, including continuing pain, discomfort, and instability, with sensations of his knee "popping out." (Dec. 6). As to one employer, Alco Builders, the judge found the employee experienced an increase in pain while working there in 1987, but no specific incidents of re-injury or further injury. (Dec. 6)Id. In his most recent work at John M. Dean, the judge related the employee's testimony that other than a scrape on his knee, he had not re-injured the knee while working, although the knee had become increasingly painful. (Dec. 5, 6).
In June 1990 the employee came under the care of Dr. William R. Cambridge, who diagnosed anterior ligament insufficiency and operated on the employee's right knee on June 29, 1990. (Dec. 7). Dr. Cambridge opined that this diagnosis was consistent with chronic ongoing injury to the knee originating with the 1979 accident, in which the employee sustained a twisting injury. (Dec. 8) Dr. Cambridge noted that the employee had complained of instability after the 1979 injury consistent with ligament injury, and that the subsequent episodes of instability, the chronic deterioration and the progressive tearing of cartilage were to be expected from an unrepaired ACL deficiency. (Dec. 8). Dr. Cambridge allowed that the employee's performance of heavy work during the years after his original injury could have had a cumulative, further negative effect on the deterioration of the knee, but felt that whatever the employee's activities had been, the knee would have continued to deteriorate as a result of the unattended ligamentous injury of 1979. (Dec. 8; Depo. Dr. Cambridge pp. 33-34.)
The judge related Dr. Cambridge's post-operative diagnosis was that the employee was suffering from multiple tears in his medial and lateral menisci as well as the anterior cruciate ligament, chronic synovitis, and basilar degeneration of the weight bearing surface of the medial femoral condyle. (Dec. 7). The doctor opined that the complex of tears and degeneration was a progression that fit with the ligament instability with chronic epidodes or recurrent episodes of sublixation. (Dep. Dr. Cambridge, p. 22).
The judge found that Dr. Cambridge thought it significant to note that, back in 1979, when the glass was removed from the employee's knee, pain would have prevented running the knee through of a full range of motion so as to test the ligaments. (Dec. 8). The judge noted the doctor's view that because of pain at the time, such testing would have had to have been done at a later date, but in fact, there was no indication that it had ever been done. (Dec. 8).
The employee filed a claim against the 1979 employer for the brief period of disability and medical expenses related to the June 29, 1990 surgery, which he alleged to have been caused by the 1979 industrial accident. Prior to the hearing, the administrative judge denied the employee's motion to join Hartford and Travellers Insurance Companies, insurers for two of the employee's employers subsequent to Guardian Industries. (Dec. 1-2).
In his decision, the judge found causal relationship between the 1979 industrial accident and the 1990 surgery, adopting Dr. Cambridge's opinion that the employee's "anterior cruciate ligament tear occurred when the employee twisted the knee on March 23, 1979, that [the employee's] ongoing problems have been and still are the result of the continuing effect of that original injury, and irrespective of the possible effect of his intervening activities, that the knee continued to deteriorate as a result of the unattended ligamentous deficiency." (Dec. 11).
The self-insurer appealed, and argues that this is a case of a series of compensable injuries starting with the 1979 incident, and asserts that the successive insurer rule therefore should be invoked to hold the last insurer of the employee's more recent employers liable, as in Evans Case, 299 Mass. 435, 437 (1938). (Insurer's Brief, p. 7). The self-insurer contends that the employee's work activities from 1979 until his disability commenced in 1990 constituted contributory traumas, each amounting to a personal injury under the Act. (Insurer's Brief, 8-9). The administrative judge assessed the evidence differently, as he concluded that the employee's deteriorating medical condition was "the result of the continuing effect of that original injury . . . irrespective of the possible effect of his intervening activities." (Dec. 11). There was medical opinion to support his conclusion.
This issue is essentially a question of fact, and the judge's findings, including all rational inferences of which the evidence is susceptible, must stand unless a different finding is required as a matter of law. Bajdek's Case, 321 Mass. 325, 326 (1947); Buck's Case, 342 Mass. 766, 769-770 (1961). We do not think that the findings of the administrative judge are arbitrary, or legally unwarranted.
This case is quite similar to Costa's Case, 333 Mass. 286 (1955), in which the Court upheld the Board's decision holding liable the first insurer on the risk in a claim involving four separate periods of incapacity attributable to the employee's injured back. Id. at 287, 289. The original insurer in Costa, as in the instant case, pointed to successive insurers on the risk when the employee had recurrences six and seven years later, as that employee, like this one, continued to perform physical labor despite his ongoing pain. Id. at 288. The medical opinion adopted was that of the employee's treating physician, who testified that, "in his opinion the employee's disability was directly attributable to the [original] back injury. . . ." The Court continued:
There was, to be sure, testimony by Dr. Solas which tended to qualify this opinion somewhat, and there was medical testimony introduced by [the insurer] that the employee's condition was not related to the [original] injury. But the weight and credibility of the evidence were for the board to determine. There was no evidence that the employee sustained a specific injury subsequent to [the original injury].
Costa at 289. (Emphasis added.) While the testimony of Dr. Cambridge did contain acknowledgment that the employee's later laboring work aggravated his knee condition, it is clear that this did not change the physician's opinion that the untreated ligamentous injury in 1979 caused the need for surgery in 1990, and that "regardless of where he was working or what he was doing, his knee would progressively deteriorate." (Dep. Dr. Cambridge, p. 33). Use of the term "aggravation" does not automatically delineate that a later insurer is liable for incapacity. Thompson v. Tambrands, Inc., 9 Mass. Workers' Comp. Rep. ___ (June 6, 1995).
In Zerofski's Case, 385 Mass. 590, 591, 596-597 (1981), the first insurer was liable for an "aggravation". The employee's original work injury was found to have been aggravated by "wear and tear", and since such aggravation is not a compensable injury for which a second insurer is liable, the first insurer was liable for benefits for the last period of incapacity. Id.
The administrative judge apparently weighed this testimony along with the rest, and concluded that the employee's exertions in the decade of employment after his original injury likewise had a deleterious effect on his weakened knee, but did not amount to a "personal injury. See Smick v. South Central Mass. Rehabilitative Resources, Inc., 7 Mass. Workers' Comp. Rep. 84, 86-88 (1993) (critical question is whether the incapacity suffered is "simply the natural physiological progression of a condition following the initial incident or the result of a new compensable injury"); Radke v. Eastham Foundations, 7 Mass. Workers' Comp. Rep. 197, 200-201 (1993); andRock's Case, 323 Mass. 428, 429-430 (1948), in which the original insurer remained liable for a subsequent incapacity, even where a specific incident contributed to that incapacity. We see no error on the part of the administrative judge.
In Rock's Case, 323 Mass. 428, 429-430 (1948), the first insurer remained liable for subsequent incapacity even though a later specific incident contributed to the incapacity. The court states:
The question to be determined is whether the board was required to find that the [specific subsequent] incident of May 27, 1946, was even to the slightest extent a contributing cause of the subsequent disability. . . . There was evidence that the employee continually complained of his back ever since the injury of April 20, 1943. . . . On the evidence it could have been found that the employee had not recovered from the injury of April 20, 1943, that the lifting that he did on May 27, 1946 did not constitute an independent intervening cause for his subsequent incapacity, but that he would not have sustained any incapacity to labor on and after May 27, 1946, if he had not then been suffering from the effects of the injury he received on April 20, 1943. [Citations omitted.] There was no error in the conclusion that the [original insurer] is liable to make compensation.
Id.
The self-insurer also contends that the judge's finding that the employee "was knocked to the floor" upon being struck in the knee by a shard of glass (Dec. 4), is without support in the record. It is true that the employee did not testify that he was "knocked to the floor." The employee testified that a "piece of glass struck me in the leg, struck me in the knee, and I looked down, and I saw it blow up. It broke. And I am not sure how, but I ended up on the floor." (Tr. 31). It appears that the judge drew an inference that the impact of the glass hitting the employee caused the employee to fall down, thereby twisting his knee. (Dec. 10, Dep. Dr. Cambridge p. 7). See Gianfriddo's Case, 319 Mass. 566, 567 (1946); Sanderson's Case, 224 Mass. 558, 561 (1916) ("The Industrial Accident Board in the determination of questions of fact is permitted to draw such inferences from the evidence and all the circumstances as a reasonable man could draw. . . .") The judge was well within his authority to draw such an inference, and there was no error in his so doing.
Affirmed.
______________________________ Carolynn N. Fischel Administrative Law Judge
______________________________ William A. McCarthy Administrative Law Judge
______________________________ Sara Holmes Wilson Administrative Law Judge
Filed: October 11, 1995