Opinion
BOARD No. 40256-93
Filed: January 26, 1998
REVIEWING BOARD DECISION
(Judges Maze-Rothstein, McCarthy and Smith)
APPEARANCES
Gary W. Orlacchio, Esq., for the employee
Harry Silverman, Esq., for the insurer at hearing
John E. Coyne, Esq., on brief for insurer
The employee appeals from a decision in which an administrative judge denied and dismissed her claim for workers' compensation benefits stemming from an alleged slip and fall injury at work. Because the judge's subsidiary findings do not support her conclusion, we recommit the case for further findings of fact consistent with this opinion. G.L.c. 152, § 11C.
The employee, a waitress, claimed that she slipped and fell on the employer's wet and slippery restaurant deck while leaving work after her shift on September 8, 1993. (Dec. 4.; October 3, 1994 Tr. 33-34.) The judge "disbelieved [her] testimony of a slip and fall as the cause of her personal injuries . . . ." (Dec. 4.) Curiously, the judge was persuaded by the testimony of co-worker witness Ted Hubner. He saw the employee leave the workplace by way of the deck. Id. He was standing five to six feet away from the deck doorway, heard a thud, and went outside to assist the employee. Id. He saw the employee getting up off of the deck and assisted her. (Dec. 4, 5; September 20, 1994 Tr. 68.) The judge found this testimony of the employer's witness credible and convincing. (Dec. 4, 5.) The judge inexplicably concluded that the insurer was not liable for the claimed personal injury. (Dec. 7.)
We agree with the employee, that the judge's denial of liability is unsupported by her subsidiary findings. (Dec. 4, 5.) The judge's disbelief of the employee's "claimed slip and fall as the cause of her personal injuries", (Dec. 4), could mean two very different things. On the one hand, it could mean that the slip and fall did occur but did not cause the injuries that the employee claimed. On the other hand, it could mean that the judge did not believe that the slip and fall had actually occurred. If so, we are left to wonder at Mr. Hubner's credited testimony, which was strong circumstantial evidence of such an occurrence. SeeSemerjian v. Stetson, 284 Mass. 510, 514 (1933) (defining inference as reasonable conclusions drawn from facts admitted or established by evidence).
"It is the duty of an administrative judge to address the issues in a case in a manner enabling this board to determine with reasonable certainty whether correct rules of law have been applied to facts that could be properly found." Praetz v. Factory Mutual Engineering Research, 7 Mass. Workers' Comp. Rep. 45, 47 (1993). Simply put, we cannot understand this decision. Therefore, recommittal is appropriate. G.L.c. 152, § 11C.
We make two final points in closing. Given the denial of liability, the judge made no findings on the medical aspect of the employee's claim. If, on recommittal, the judge determines that the slip and fall actually did occur, the issues of causal relation and the extent of the employee's incapacity must then be addressed. If that is so then first, the judge must rule on the employee's motion for additional medical evidence which urged inadequacy of the § 11A medical opinion. Second, because the medical evidence addresses the employee's alleged injury as an aggravation of a pre-existing cervical spine condition, (§ 11A report, Insurer Ex. 2), inquiry must be made as to whether the provisions of the fourth sentence of G.L.c. 152, § 1(7A) should be applied to this claim:
General Laws c. 152, § 11A gives an impartial medical examiner's report the effect of "prima facie evidence with regard to the medical issues contained therein," and expressly prohibits the introduction of other medical evidence to meet it unless the judge finds the additional medical testimony is required due to the complexity of the medical issues involved or the inadequacy of the report.
If 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 that such compensable injury or disease remains a major but not necessarily predominant cause of disability or need for treatment.
G.L.c. 152, § 1(7A) (added by St. 1991, c. 398, § 14, and made effective, with prospective application only, on December 23, 1991. St. 1991, c. 398, §§ 106, 111) (Emphasis added). See Robles v. Riverside Management, Inc., 10 Mass. Workers' Comp. Rep. 191 (1996) (for discussion of how to make a causation analysis under this aspect of the statute).
The case is recommitted for further findings of fact consistent with this opinion.
So ordered.
_____________________ Susan Maze-Rothstein Administrative Law Judge
______________________ William A. McCarthy Administrative Law Judge
______________________ Suzanne E.K. Smith Administrative Law Judge
Filed: January 26, 1998