Opinion
Board No. 03393790
Filed: September 19, 1995
REVIEWING BOARD DECISION (Judges McCarthy, Fischel Wilson)
APPEARANCES
Peter T. Zatir, Esq., for the employee at hearing.
Robert W. LeBlanc, Esq., for the employee on brief.
Martin T. Sullivan, Esq., for the insurer.
Angelina Cabral immigrated to the United States at age thirteen. After completing the seventh grade she went to work in a factory. From that time until her industrial injury in 1990 her only relevant work experience is factory work or work as a stitcher (Dec. 3). The employee worked for Aerovox, Inc. (the employer) for approximately sixteen years. Most recently her work as a "winder" for the employer required "dexterous use of the hands and arms, . . . frequent lifting . . . and the use of hand wrenches to tighten the material on to the feed rolls." (Dec. 3).
After experiencing pain and numbness in her right hand and wrist for several months, the employee stopped working on May 23, 1990 (Dec. 4). She has not worked since that date. The insurer accepted the claim and began payment of temporary total incapacity benefits based on the injury to the right hand and wrist.
After being referred out for treatment on May 23, 1990 by the company nurse, the employee was diagnosed as suffering from a right wrist sprain (Dec. 4). On June 1, 1990 the employee was examined by a chiropractor who diagnosed acute cervical disfunction complex with attendant radiating neuralgia and mild lumbosacral sprain (Dec. 5). Because her complaints continued unabated the employee underwent a series of diagnostic studies and tried a number of medical modalities including acupuncture. Ultimately she underwent cervical disc excision and fusion at C5-6 on October 21, 1991. The insurer did not accept the claim that the neck injury was work related and resisted payment of any benefits under c. 152 arising out of that claim.
When an administrative judge by conference order denied its complaint to terminate or modify weekly benefits, the insurer appealed. Prior to an evidentiary hearing on that appeal the insurer allowed the employee to join her claim for medical and incapacity benefits as a result of the claimed neck injury. The issues thus joined the matter came to a full evidentiary hearing before an administrative judge.
After hearing testimony from the employee and considering the deposition testimony of a chiropractor, an osteopathic physician, an orthopedic surgeon and an acupuncturist, the judge filed his decision discontinuing weekly incapacity benefits as of the filing date of his decision. He also found that the employee's neck complaints and subsequent cervical surgery were not causally related to her work for the employer. We have the case on appeal by the employee.
As we vacate the decision we briefly summarize its several defects:
1. Critical to the issue of causal relationship between the claimed neck injury and the work effort are findings with respect to precisely when the employee first had symptoms or made complaints about her neck. The decision is silent in this vital area.
2. The hearing judge made a general finding that "The employee's treating doctor feels that there is only a probability (emphasis added) of the employee's present complaints being causally related to her occupation as a winder." (Dec. 9). The opinion identifies Arthur Hickey M.D., John Furrey M.D., Gary Alves D.C., William Dworet D.O., David DiSanto M.D., Henry Schmidek M.D., Joel Abramovitz M.D., John P. Latchaw M.D. and Mr. Daniel Schwartz, an acupuncturist as being involved in the employee's treatment. The judge does not identify which of the employee's treating doctors feels that there is "only a probability" of causal relationship. Beyond that there is reason to question whether the judge understood that an expert opinion of probable relationship between the work effort and the condition found, if adopted is sufficient to support a finding of compensability. His use of the phrase "only a probability" suggests that the judge may have been looking for a higher standard than is legally required.
3. The judge adopted the opinion of the insurer's medical expert, Dr. William C. Donahue, that the employee's present neck difficulties are not related to her work effort. Dr. Donahue's opinion is clouded because after an examination of the employee on March 12, 1991 he causally related the neck condition even though the neck complaints were not "concomitant". (Depo. Dr. Donahue Pgs. 6-8, 20-21, 23-24, 37). After a second examination on May 5, 1992 Dr. Donahue opined that the neck condition was unrelated to the employee's work. In his May 5, 1992 report which is part of his depositional testimony, the doctor relies upon a history that "complaints of neck pain evolved approximately in August 1990" (emphasis added). This history of neck pain in August 1990 contradicts the judge's finding that the employee began treatment for neck complaints on June 1, 1990, one week after leaving work. (Dec. 5).
4. In choosing the filing date of his decision as the day that work related incapacity ceased, the judge failed to anchor the termination of weekly benefits on the evidence before him. Palardy's Case 6 Mass. Workers' Comp. Rep. 165, 166 (1992).
Because the judge who heard and decided this case no longer serves as such we return the case to the senior judge for reassignment for a new hearing of the insurer's appeal of the denial of its complaint to terminate or modify together with the employee's claim that her neck problem is a compensable work injury. Until the newly assigned hearing judge files a decision on these issues, the order discontinuing weekly incapacity benefits as of July 26, 1993 may stand.
So ordered.
Judges Fischel and Wilson concur.
_____________________________ William A. McCarthy Administrative Law Judge
_____________________________ Carolynn N. Fischel Administrative Law Judge
_____________________________ Sara Holmes Wilson Administrative Law Judge
Filed: September 19, 1995