Opinion
BOARD No. 064190-92
Filed: February 4, 1998
REVIEWING BOARD DECISION.
(Judges Smith, Maze-Rothstein and McCarthy).
APPEARANCES.
John F. Trefethan, Jr., Esq., at hearing, James Ellis, Jr. Esq., on appeal, for the employee Mark A. Teehan, Esq., for the Self-insurer.
James N. Ellis, Jr. filed a brief for the employee in this appeal on March 31, 1997. He was subsequently suspended from legal practice. In re Ellis, 425 Mass. 332 (June 27, 1997).
The employee appeals from the denial of his claim of further workers' compensation benefits for an accepted December 15, 1992 left shoulder injury and its alleged sequelae involving the right shoulder. (Dec. 1-2; Tr. 3-4.) Because the judge made a factual finding that is unsupported by the record evidence, which is key to the decision that the employee's right shoulder complaints are unrelated to the accepted left shoulder injury, we reverse the decision and recommit for further findings of fact. G.L.c. 152, § 11C.
Richard Caira, a cost analyst on the employer's accounting department, sustained an injury to his left shoulder on December 15, 1992 when he slipped on small pieces of clear plastic on the floor and braced himself against a wall to avoid falling down. (Dec. 4.) He received conservative treatment for several months until he had a surgical repair to the left shoulder on May 12, 1993. (Dec. 4-5.) The self-insurer paid § 34 weekly benefits from May 12, 1993 until August 9, 1993 at which time Caira returned to his normal occupation despite continuing medical treatment. (Dec. 5.) Caira allegedly was required to keep his left arm in an abduction-type splint until June 1993 and later in a sling. When he returned to work in August 1993, he allegedly was forced to keep his left arm at his side and to use his right arm and shoulder to perform his job duties. (Dec. 5-6.) He began to experience pain and discomfort in the right arm, due to this alleged "overuse." (Dec. 6.) On April 11, 1995, Caira underwent arthroscopic surgical decompression on his right shoulder Id. On April 28, 1995, he accepted a "buy-out" offer and ended his employment with Raytheon. (Dec. 5.)
According to his brief, Caira is left handed. (Employee's Brief, 3.)
Caira then filed a claim for § 34 temporary total incapacity benefits commencing on the date his employment with Raytheon ended, together with § 30 medical benefits for right shoulder treatment. He alleged that his right shoulder disability was related to overuse of his right upper extremity sustained during convalescence for the left shoulder surgery. (Dec. 1-2, 6.) The judge denied the claim following a § 10A conference. Caira appealed to a § 11 de novo hearing. (Dec. 2.)
An impartial physician examined Caira pursuant to G.L.c. 152, § 11A. (Dec. 6.) The impartial physician diagnosed "status post rotator cuff repair left" and "status post surgery for rotator duff [sic] tendonitis right." (Dec. 6; statutory exhibit 1, 3.) The impartial physician found the left shoulder disability to be causally related to the December 15, 1992 industrial accident. (Dec. 6.) With regard to the right shoulder, he stated: "[t]he causal relationship of the problem with the right shoulder is not easily established or denied. However, it is plausible that the right shoulder became aggravated by overuse and if, indeed, his history of not using his left shoulder is accurate during the time of returning to work 3 months after his surgery, this is also a contributing factor." (Dec. 6; statutory exhibit 1, 3; Dep. 7-8.) He found Caira to have a partial impairment of the left shoulder, and a marked disability in the right shoulder, not yet at a medical end result, with a guarded prognosis. (Dec. 6-7; statutory exhibit 1, 5.)
During his deposition, the § 11A examiner opined that causal relationship of the right shoulder problem with the left was "more probable than not." (Dep. 7.)
In a supplemental report dated April 3, 1996, the § 11A examiner opined: "[t]herefore, it is my opinion at this time, based on a reasonable degree of medical certainty, that both shoulder problems are related to his work injury . . . the injury to the right shoulder, was secondary to the overuse . . . . There is nothing in the record that . . . would change my previous opinion, except for the fact that I am more convinced now than before that his right shoulder problem is causally related to his left shoulder problem. There is nothing in the records to indicate otherwise." (Statutory exhibit 1, Doherty supplemental report, dated April 3, 1996, 2.)
During his deposition, in response to a hypothetical question describing Caira's job duties as mainly involving working at a keyboard terminal, the impartial medical examiner opined there was very little causal relationship between the accepted injury to the left shoulder and Caira's right shoulder disability. (Dec. 7; Dep. 13-16; 30-31.) When asked to explain why his causation opinion differed from the opinion previously expressed, the doctor said it was because his understanding of the employee's job changed. The employee had told him that his job involved repetitive reaching with his right arm. The hypothetical did not include this activity.
The impartial physician testified the "[t]he keyboard . . . would not be the type of motion that would really aggravate the use of the shoulders. It's mainly a hand/elbow thing. It's really a little bit of shoulder motion. I would not expect that to really cause an acute impingement syndrome, no." (Dep. 13-14.)
The impartial physician testified that there might be causal relationship if Caira's duties involved repetitive reaching to the back or the side. (Dep. 31-33, 49-50.)
The judge made the following relevant factual findings: Caira used the computer keyboard 75% of the time. (Dec. 8.) Caira's work involved light clerical tasks primarily using a keyboard, which according to the impartial medical examiner, was "not the type of activity to cause tendonitis." (Dec. 9.) "[T]he temporal relationship to the accepted left shoulder injury was tenuous at best, and that more likely than not, his problems were related to his long-standing bilateral shoulder pain complaints reaching as far back as March 1978 and April 1983." (Dec. 9.) The judge concluded that the right shoulder problem was not causally related to the accepted industrial injury of December 1992. (Dec. 8.) The judge found that Caira failed to meet his burden of proving that his right shoulder disability was either directly caused by his post-injury work or a sequelae of his accepted left shoulder injury. (Dec. 9.) Likewise, the judge found that Caira's testimony that he was in constant pain and had no strength in his right shoulder lacked credibility.Id. On the dual basis of adopting the impartial physician's opinion and the employee's lack of credibility, the judge concluded "that the employee's right shoulder problems are not a compensable personal injury . . ." (Dec. 10.) The judge did "not find the employee's right shoulder surgery and associated medical treatment to be causally related to the accepted personal injury to the left shoulder . . . ." Id. He therefore denied Caira's claim.
The impartial physician testified that there was a delay in the appearance of severe right shoulder symptoms which could be explained by the fact that while the employee was out of work following the initial injury, he was not using his right shoulder very much. (Dep. 10.)
The employee appeals, arguing that the impartial report was contradictory and arbitrary, and that additional medical evidence was constitutionally required. We agree with the employee that the decision is flawed, although for other reasons. The judge's conclusion of nonpersuasion is explicitly premised on his positive factual finding "that more likely than not, [the employee's right shoulder] problems were related to his long-standing bilateral shoulder pain complaints reaching as far back as March 1978 and April 1983." (Dec. 9.) The evidentiary basis for this positive finding is not apparent.
"Where crucial and material findings are made without evidentiary support, the error resulting therefrom is not harmless and renders the ultimate decision both arbitrary and capricious." McCarty v. Wilkinson Co., 11 Mass. Workers' Comp. Rep. 285, 288 (1997). Here, the impartial physician did not find the right shoulder problems related to any shoulder condition that might have preexisted the industrial accident to the left shoulder. (Dep. 16, 21-25, 43.) In fact, the impartial physician opined there was no causal relationship between any condition that may have existed almost ten years before the current problems. (Dep. 16, 21-25, 43.)
Expert medical evidence was required to support the finding that the current right shoulder problems were related to a prior condition. The contrary opinion of the impartial medical examiner constituted prima facie evidence, which the judge was required to accept unless it was met and overcome by other competent evidence in the record. G.L.c. 152, § 11A(2); Scheffler's Case, 419 Mass. 251, 257-259 (1994). The impartial physician rendered the only medical opinion in evidence in this case. His opinion was not rebutted by other evidence. The judge's preexisting condition finding lacks evidentiary support and must be reversed. SeeRoberts v. Central Heating and Cooling, 9 Mass. Workers' Comp. Rep. 431, 433 (1995). As the error goes to the central issue in this case, it is harmful and mandates recommittal.
Additionally, the decision is inadequate for appellate review because it lacks specific findings about the reaching activity performed by the employee when he returned to work following his left shoulder surgery. Such findings are necessary to support a rational choice among the conflicting opinions rendered by the impartial medical examiner. The impartial physician testified:
If [the employee] has to do a lot of reaching up and down, at shoulder level or out to the side in abduction, yes, this could well be an overuse syndrome that caused the tendonitis in his right shoulder. If the job was strictly at the computer keyboard, 80 percent of the time, without repeated reaching, yes, I would agree with the statement there is no relationship between his job.
(Dep. 31.)
The impartial physician raised the following factual issues: Did the employee spend "[m]ore than 20 percent of the time in his job reaching out and bringing back or reaching out to the side? He's at a computer. Is he reaching for a book? Is he reaching for a disk? Is he reaching for the mouse over here, using the mouse constantly with his arm?" (Dep. 32.) In addition, the impartial physician questioned the amount the employee was able to use his left shoulder during the three months of work following his left shoulder surgery. (Dec. 5-6.) Answers to these questions would provide the necessary factual foundation for the impartial physician's varying medical opinions and a rational basis for the judge's causation decision.
The impartial physician causally related the right shoulder disability to the left shoulder injury if the employee did not use the left shoulder during this period. (Statutory exhibit 1, 3; Dep. 7-8.)
In conclusion, we strike that portion of the judge's finding number 5 that Caira's right shoulder condition was related to some preexisting condition and recommit the case for further findings consistent with this opinion. In his discretion, the judge may take additional medical evidence, should he upon reflection find such testimony is required due to the complexity of the medical issue or the inadequacy of the medical examiner's report. See G.L.c. 152, § 11A(2). Due to the passage of time, in the interests of justice, the judge may also take such further lay evidence as he deems necessary to render a just decision.
The employee's motion for additional medical evidence was a rote form with only portions checked off. It did not contain any reasons specific to the employee's case. (Employee's Motion dated August 4, 1995.) The employee made no offer of proof with respect to what additional medical evidence he sought to submit. (Dec. 8.) The motion was not renewed at the time of hearing, or after the impartial physician's deposition.
The judge was not required to be clairvoyant regarding the reasons why additional medical evidence should be allowed.DeMetrio v. M. DeMatteo Constr. Co., 11 Mass. Workers' Comp. Rep. ___, slip op. at 4 (December 22, 1997). He did not act arbitrarily, capriciously or contrary to law in denying the employee's motion for additional medical evidence, as presented. G.L.c. 152, § 11C.
So ordered.
______________________________ Suzanne E. K. Smith Administrative Law Judge
______________________________ Susan Maze-Rothstein Administrative Law Judge
______________________________ William A. McCarthy Administrative Law Judge
Filed: February 4, 1998