Opinion
BOARD No. 040242-90
Filed: May 21, 1998
REVIEWING BOARD DECISION
(Judges McCarthy, Maze-Rothstein and Smith).
APPEARANCES
Judith B. Gray, Esq., for the employee at hearing.
Brian Cloherty, Esq., for the employee on brief.
Michael T. Henry, Esq., for the Self-Insurer.
This is the self-insurer's appeal of a decision that dismissed its complaint to modify or discontinue payment of § 35 weekly partial incapacity benefits. Because the § 11A medical opinion is inadequate as a matter of law on the issue of the employee's psychological condition, we recommit for further findings after the submission of additional medical evidence.
Albert Brown worked for the Star Market Company, as a tractor trailer operator for over 20 years driving upwards of 150 miles a day. (Dec. 3.) On July 6, 1990, he sustained mid and lower back injuries while lifting a pallet jack in the course of his employment. (Dec. 4.) The insurer accepted liability for the injury and paid compensation benefits.
The self-insurer states it paid § 34 temporary total incapacity benefits from July 1990 until March 11, 1992. After March 11, 1992, it states that by agreement of the parties, it paid § 35 partial incapacity benefits based on an earning capacity of $125.00 per week. (Self-Insurer's Brief, at 2.)
Subsequently, the self-insurer filed a complaint for modification or discontinuance, which was denied following a § 10A conference. The self-insurer appealed to a hearing de novo. (Dec. 2.)
At the hearing, the employee attempted to add a claim for a psychological component and moved for additional medical evidence on that issue. (Tr. 6-8, dated March 10, 1994; see self-insurer's Brief, at 2-3) That motion was denied. (Tr. Dated March 10, 1994.)
Pursuant to § 11A, an orthopedic surgeon examined the employee and filed a report. He opined that the employee had no abnormal physical findings except for mid-back tenderness. (Dec. 5; St. Exhibit 1, at 3.) Although the doctor did not think there was a physical impairment that would prohibit the employee from returning to work, he noted that the employee persistently talked about his pain during the examination and seemed to be obsessed with it and with the fact he was not getting better. (Dec. 5.) The physician suggested that there "may be a psychological impairment which really has not been addressed . . ." (St. Exhibit 1, at 3.) The § 11A doctor further stated that "[the employee's] physical condition in the beginning may have caused a psychological problem which should be addressed." Id.; see (Dec. 5.)
The § 11A(2) medical issues that must be addressed are listed as follows:
The report of the impartial medical examiner shall, where feasible, contain a determination of the following: (i) whether or not a disability exists, (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 contributing cause a personal injury arising our of and in the course of the employee's employment. Such report shall also indicate the examiner's opinion as to whether or not a medical end result has been reached and what permanent impairments or losses of function have been discovered, if any.
About a month later, a "medical hearing" was conducted. The employee moved that the § 11A report be found inadequate and additional medical evidence be allowed from both parties, on the basis that the § 11A report suggested a functional psychological overlay. (Tr. 4-9, 12, dated May 19, 1994.) The judge reserved her ruling on the motion. Id. at 11-15. The parties waived their right to depose the § 11A examiner. (Dec. 2.)
The self-insurer did not raise any issue with respect to the sequence of the lay and medical hearings. (Self-insurer's Brief at 3, n. 1.) There is nothing in the record to indicate that the employee objected either. See O'Brien's Case, 424 Mass. 16 (1996).
Despite the denial of the earlier motion for joinder of the psychological issue, the judge reached that issue and turned the decision on it. The judge filed her decision on June 28, 1996. She found no inadequacy in the § 11A report and ruled "that the above impartial medical examiner rendered a legally sufficient opinion with regard to the psychological condition." (Dec. 5, 6.) She adopted the § 11A medical opinion and accorded it prima facie weight. (Dec 5.) The judge concluded that while the employee had no physical impairment that prohibited a return to work, he "may have a psychological problem which should be addressed." (Dec. 6.) In support of this finding, she reasoned that "a reasonable inference can be made based on the Dr. Doherty's opinion and the employee's consistent and credible testimony regarding his depressive reaction to the chronic pain, that following the industrial accident he developed a psychological overlay, for which he received treatment in September of 1992 and continues to take medication." (Dec. 5.)
The self-insurer's complaint was dismissed on the basis that the employee's depressive reaction to the chronic pain was causally related to the industrial accident. (Dec. 6.) Section 35 partial incapacity compensation was ordered to continue at the same rate.
The self-insurer contends on appeal that the decision finding a mental disability arising from a physical injury based on a § 11A opinion that one might exist was arbitrary and capricious and contrary to law. It further argues that the decision consisted of internally inconsistent findings and consideration of medical records not in evidence. We find the self-insurer's first argument has merit, but the second one does not.
Section 11A(2) requires that the "impartial physician's report shall constitute prima facie evidence of the matters contained therein." G.L. C. 152, § 11A(2). See supra_note 2(text of § 11A (2)). The medical issues that the § 11A report shall, where feasible determine include disability and extent thereof, causal relationship, medical end result and losses of function, if any.Lebrun v. Century Markets, 9 Mass. Workers. Comp. Rep. 692, 695 (1995). Unless it is unfeasible, where a § 11A physician does not respond to the requirements of § 11A (2), the failure to allow additional medical evidence is legal error. Id. at 696; Safford v.Worcester Hous. Auth., 10 Mass. Workers' Comp. Rep. 339, 342 (1996).
The "medical issues" under each category listed in § 11A(2) can, in any particular case, be multifaceted. See Mendez v. The Foxboro Co., 9 Mass. Workers' Comp. Rep. 641 (1995).
Where the judge put the psychological condition back in issue, the conclusion that the § 11A report was legally sufficient on the employee's psychiatric condition was incorrect. Where the report addressed the orthopedic issue, but merely suggested that the work-related back injury "may" have caused a psychological problem which "should be addressed", the report is inadequate on its face. See Lebrun, supra at 696-697. It was error for the judge to first refuse to allow joinder of the psychiatric claim and then conclude that the employee is emotionally disabled without supporting expert opinion.
Where a matter is beyond the common knowledge and experience of the ordinary lay people, proof of any causal relationship between an industrial accident and medical disability must rest upon expert medical testimony. Josi's Case, 324 Mass. 415, 417-418 (1949); Lavoie v. Westfield Pub. School Sys., 7 Mass. Workers' Comp. Rep. 77, 81 (1993) (expert opinion testimony is generally required in mental injury cases because the etiology of mental disability is rarely a matter of general knowledge and experience). That opinion must be rendered to a probability and speculation or a mere possibility will not do. Hachadourian's Case, 340 Mass. 81, 86 (1959);Dalrymple v. Reidy Body and Paint Shop, Inc., 10 Mass. Workers' Comp. Rep. 275, 278 (1996) The § 11A examiner's opinion that the psychological condition "should be addressed," is well short of an expert opinion on the issue.
The self-insurer next argues that the judge relied on medical evidence outside the record and made inconsistent findings. We find no inconsistencies nor do we find any reliance on non-evidentiary materials. See Smith v. Gibraltor Constr., 10 Mass. Workers' Comp. Rep. 461, 463 (1996). The judge merely recited the medical basis as set out in the § 11A physician's report and did not rely on matters outside the record. See (Dec. 5.) We find no error.
Accordingly, we recommit this case for further findings on the psychiatric issue, because we find the § 11A orthopedic report inadequate as a matter of law on the condition. Due to the passage of time since the 1994 § 11A orthopedic examination, the judge may take additional lay and medical evidence on that condition as well, if deemed necessary to her deliberations.
So ordered.
_____________________ Susan Maze-Rothstein Administrative Law Judge
_____________________ William A. McCarthy Administrative Law Judge
_____________________ Suzanne E. K. Smith Administrative Law Judge
FILED: May 21, 1998