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rejecting application of "predominant contributing cause" standard of causation for emotional sequelae to physical injury cases
Summary of this case from Padilla v. Mellon Bank Corporation, NoOpinion
BOARD No. 03341890
Filed: January 17, 1997
REVIEWING BOARD DECISION
(Judges Maze-Rothstein, McCarthy and Smith)
APPEARANCES
Edward J. Lang, Esq., for the employee.
Dennis M. Maher, Esq., for the insurer.
The insurer's appeal challenges a decision awarding the employee G.L.c. 152, §§ 34 and 34A total incapacity benefits for a psychological injury that arose from his compensable physical injury. It argues that under G.L.c. 152, § 1 (7A) there is insufficient support to find compensable the employee's psychological disability, which manifested two years after his industrial injury. Because the decision is without error, we affirm.
On June 21, 1990, Ernesto Cirignano ("employee") sustained an accepted industrial injury to his back while working as a metal refinisher for Globe Nickel Plating Company ("employer"). (Dec. 3.) He was forty-four at the time, and had been educated to the sixth grade in Italy with no other formal training. (Dec. 5.) The accident caused chronic back pain, forcing the employee to end his eighteen year career as a laborer. (Dec. 3, 5.) He remains partially medically disabled from his chronic back condition. (Dec. 6, 7, 9, 11.)
By conference order, on the insurer's request to modify or terminate, the employee's benefits were reduced as of September 16, 1992. (Dec. 4, 6; Insurer's Brief, 2.) On July 15, 1994, the employee filed for resumption of § 34 benefits claiming total incapacity from September 17, 1992, the day his benefits decreased. (Dec. 1-2.) After a § 10A conference the claim was denied, prompting the employee's appeal to a hearing de novo.
The employee proceeded at hearing on the theory that he was totally incapacitated as a result of the combination of his chronic back pain arising out of his June 21, 1990 physical injury and from the later development of a mental disability. He alleged his mental condition derived from post work injury pain, which became chronic over time, his social isolation and his failure to recover. He further alleged the latter condition was aggravated by the reduction of his benefits on September 16, 1992.
The insurer denied responsibility for the mental condition and contested the occurrence of compensable incapacity after September 16, 1992, arguing that the employee failed to link his psychological problems to a specific work event or series of events and that a reduction in benefits was a bona fide personnel action under § 1 (7A). (Dec. 2-3, 11-12.) The judge rejected the insurer's § 1 (7A) defense, finding that there was "an unbroken chain of causal relationship between the original industrial injury, his failure to achieve full recovery from his orthopedic injury, the mental depression prior to and significantly increasing after the reduction of his Worker's Compensation benefits, and his current inability to work in any meaningful capacity." (Dec. 11.)
At the time of the hearing, after briefly testifying the employee yielded the stand to his companion, Rose Marie Dobbins. She stated that the employee's psychological problems began after his industrial accident left him an isolated invalid, and that his compromised mental state worsened after his benefits were reduced by the September 1992 conference order. (Dec. 9.) Doctor Wells, a psychiatrist examined the employee on February 18, 1995 pursuant to G.L.c. 152, § 11A. He diagnosed a major depression and opined that "there may well be a tangential relationship [between the June 21, 1990 injury and his diagnosis] in that the environment of having chronic pain and not working predisposes to depression." (Dec. 7; Wells Report, 3.)
Based on the employee's and Ms. Dobbins' testimony combined with the § 11A medical opinion, the judge found the employee's present psychiatric disability causally related to his June 21, 1990 injury. (Dec, 12-13.) He therefore increased the employee's compensation entitlement from § 35, partial, back to § 34 temporary total incapacity benefits for the period from July 15, 1994 to February 17, 1995. (Dec. 14.) Thereafter, § 34A permanent and total incapacity benefits were awarded. (Dec. 14.) The insurer appeals from this decision.
The insurer's appeal charges the decision is not sufficiently supported by the record. Specifically, the insurer argues that 1) the employee must show that his psychological condition was caused by some specific work event or series of events pursuant to § 1 (7A) and 2) that the evidence does not establish a conclusive opinion on causal relation. We disagree with both propositions.
We reject the insurer's contention that it is contrary to law to give any weight to lay testimony in mental injury cases. Lay testimony can enhance and strengthen a medical opinion on causation to the point of sufficiency. See Josi's Case, 324 Mass. 415, 417-418 (1949); Bedugnis v. Paul McGuire Chevrolet, 9 Mass. Workers' Comp. Rep. 801, 803 (1995). The same holds true where the medical opinion derives from a § 11A opinion. See Biasin v. Michael's Restaurant, 10 Mass. Workers' Comp. Rep. ___ (June 25, 1996.) And we see no reason to vary the application of this concept due to the nature of an injury, be it physical, mental, or as here, a physical injury that later gives rise to a mental disability.
Similarly, we find no merit in the insurer's suggestion that the judge misconstrued the medical evidence by ignoring certain fragments of the § 11A medical opinion given at deposition. A judge is free to adopt all, part, or none of the medical evidence. Amon's Case, 315 Mass. 210, 214-215 (1943). Here the portions of the medical evidence adopted adequately support the judge's conclusion that the employee's mental and emotional disability "flow[s] from his accepted [June 21, 1990] industrial injury . . . ." (Dec. 12.); see also (Wells Dep. 22-27, 29, 41.)
We begin our analysis of the causation issue raised by looking at § 1 (7A) as it has developed in the statute and in case law over the years. From the 1912 origin of the Act through 1941 the statutory definition of an industrial injury could only be found in § 26, which reads in pertinent part, "[i]f an employee . . . receives a personal injury arising out of and in the course of his employment . . . he shall be paid compensation . . . ." G.L.c. 152, § 26. These deceptively simple words embody the vast concept of "work-connection", and have been the "source of a mighty torrent of litigation". L. Locke, Workmen's Compensation § 211, at 227 (2d ed. 1981).
As the case law fleshed out the meaning of "arising out of and in the course of the employment", the Legislature has watched the process and from time to time, responded by enacting specific inclusions and exclusions to the concept of a work injury. There was no legislative effort to further define a "personal injury" as it appears in the § 26 industrial injury definition until 1941. In that year, § 1 (7A) was enacted in response to Smith's Case, 307 Mass. 516 (1940). Locke, supra § 176, at 189. The Supreme Judicial Court held in Smith that incapacity by an infectious disease contracted at work was barred from coverage under the Act. Id. at 518. Reacting swiftly to clarify that the Act intended to include such injuries, the Legislature fashioned § 1 (7A), thus: "'Personal injury' includes infectious or contagious diseases if the nature of the employment is such that the hazard of contracting such diseases by an employee is inherent in the employment." G.L.c. 152, § 1 (7A), as added by St. 1941, c. 437.
More than forty years passed before the Legislature added anything more to this section. It was compensability of company sponsored recreational activities which next moved the Legislature to act. See L. Nason R. Wall, Massachusetts Workers' Compensation Reform Act § 10.2, at 253-254 (1995 ed.) (discussing Kemp's Case, 386 Mass. 730 (1982)). In 1985, § 1 (7A) was first amended to exclude "purely voluntary" recreational activity. See St. 1985, c. 572, § 11 amending G.L. 152 § 1 (7A).
Prior to 1986 neither § 26, which itself has had specific inclusions and exclusions grafted onto its central theme of an industrial injury, nor § 1 (7A) made explicit reference to mental or emotional injuries. See St. 1930, c. 205 as amending § 26 (on issue of coming and going rule); Locke, supra, § 503 at 602. Nevertheless, from the beginnings of the Act onward, mental disorders that were sequelae of physical work injuries have been ruled compensable. See Hunnewell's Case, 220 Mass. 351 (1915) (slight eye injury at work, which soon healed followed by hysterical blindness); Sponatski's Case, 248 Mass. 414 (1924) (physical work injury followed by insanity and ultimately suicide); Sinclaire's Case, 248 Mass. 414 (1924) (back injury at work followed by pain related depression, self-starvation and death); McIsaac's Case, 266 Mass. 67 (1929) (fall at work caused muscle tear followed by fear induced seizures); Silbovitz's Case, 343 Mass. 372 (1961) (compensable back strain with consequent conversion reaction or hysteria); Lambert's Case, 364 Mass. 832 (1973) (series of back injuries at work with subsequent related psychosis and suicide); McEwen's Case, 369 Mass. 851 (1976) (mechanic injured right hand at work and, though the physical injury recovered, later developed psychoneurosis). Thus in Massachusetts, as elsewhere, the mental sequelae of a compensable physical injury, where the causal connectedness to the physical trauma is intuitively apparent, have long been held to be covered without any greater showing than simple causal connection. SeeThe Causation Issue in Workers' Compensation Mental Disability Cases: An Analysis Solutions and a Perspective, 36 Vanderbilt Law Review 263, 287-289 (1983).
On the issue of purely mental injuries that were not secondary to a physical work injury under the pre-1986 Act, the Supreme Judicial Court first held that incapacity due to a mental or emotional disorder caused by a series of stressful incidents in the work place are compensable. Fitzgibbon's Case, 374 Mass. 633, 637-638 (1978). Fitzgibbon's was shortly followed by,Albanese's Case, 378 Mass. 14 (1979), which took the same position reasoning there is no valid distinction between mental and physical work injuries. Id. 15 17.
Taking compensability for purely mental injuries at work a step further, next the court ruled that a mental or emotional disorder as a result of being laid off or transferred could constitute a compensable personal injury even where those actions were legitimate and in good faith. Kelly's Case, 394 Mass. 684 (1985). That same year the legislature responded to the Kelly holding by amending G.L.c. 152, § 29 to carve out an exclusion of claims for mental or emotional disability arising principally out of a bona fide personnel action, including a transfer, promotion, demotion or termination, except where intentionally meant to inflict emotional harm. See St. 1985, c. 572, § 38 (deeming the amendment substantive). In 1986, the following year, identical language was added to § 1 (7A), which reads in pertinent part:
Personal injuries shall include mental and emotional disabilities only, where a significant contributing cause of such disability is an event or series of events occurring within the employment. No mental or emotional disability arising principally out of a bona fide, personnel action including a transfer, promotion, demotion, or termination except such action which is the intentional infliction of emotional harm shall be deemed to be a personal injury . . .
The dissent makes much of the language "only where" without following it to its logical conclusion, which as we see it, would exclude the entire category of mental sequela cases at issue here, leaving "only" those mental disabilities that arise directly out of the work place.
G.L.c. 152, § 1 (7A), as added by St. 1985, c. 572, § 11, effective January 1, 1986, and amended by St. 1986, c. 662, § 6, effective retroactively to January 1, 1986.
In 1991 the standard for emotional disabilities occurring at work was changed from "a significant contributing cause" to "the predominant contributing cause". Compare G.L.c. 152, § 1(7A), St. 1941, c. 437 (text supra) with Section 14 of St. 1991, c. 398.
In examining the 1986 amendment to § 1 (7A), we look first to the words of the statute. Jinwala v. Bizzaro, 24 Mass. App. Ct. 1, 3 (1987). In the amended language there is no direct reference to mental sequela of physical injuries. The 1986 language grafted onto § 1 (7A) instead speaks directly about mental disabilities caused by events "occurring within the employment", or more succinctly put, mental injuries. G.L.c. 152, § 1(7A). Because the phraseology employed does not address the sequelae of physical injuries, we must proceed beyond the statute's words to discern the Legislature's intent as ascertained by legislative and judicial knowledge considered in connection with "the mischief or imperfection to be remedied, and the main object to be accomplished. . . ." Verrochi v. Commonwealth, 394 Mass. 633, 639 (1985). It was not until after Kelly's Case, supra, that the Legislature made any change in the existing law on the issue of mental injuries occurring in the work place. We assume, as we must, that the Legislature was fully aware of the seventy year case history ordering payment of compensation for mental sequela of compensable physical injuries on a simple causal chain analysis. See Mathewson v. Contributory Retirement Appeal Bd., 335 Mass. 610, 614 (1957) (Legislature presumed to have knowledge of the common law). In that seventy years the legislature never intruded upon the long established approach taken to such sequela conditions. When it addressed the perceived "mischief" it found in Kelly's Case, supra, the Legislature might well have made changes in the long standing principle at issue here. But it chose not to!
The dissent appears to misunderstand our shorthand usage.
In 1985 the Legislature codified in § 1 (7A) language directly out of Fitzgibbon's Case, supra, and Albanese's Case, supra, which made no change per se in the state of the law. See St. 1985, c. 572, § 11. This codification was superseded by the 1986 enactment in response to Kelly's Case, supra. See St. 1986, 662, § 6. Because the 1985 amendment made no change in the existing law, we address the 1986 amendment as the first change in the law involving mental harm at work — a point overlooked by the dissent.
Thus, we read the reference to "an event or series of events" at work, as indicative of the Legislature's intent to set the ground rules and standard for surely mental injuries produced directly from workplace circumstances. In such circumstances it must be proved "that [the employee's work place psychological injury] was significantly caused by an actual, specific work-related event(s)." Lavoie v. West Field Pub. School Sys., 7 Mass. Workers' Comp. Rep. 77, 80 (1993) (mental disability caused by specific, actual work-related events that were not bona fide personnel actions).
The dissent suggests the § 1 (7A) definition of a "personal injury" and an "event" found in its language, are one and the same. But, as discussed above, a personal injury is an element of a larger term of art found in § 26 interpreted over the years in both the case law and the statute and does not reduce to any single word definition.
The dissent would snowball all types of mental harm — however it occurs — under the § 1 (7A) standard for mental injuries occurring in the work place. As pointed out inFitzgibbon's Case, 374 Mass. 633, 637 (1978), § 1 (7A) from its 1941 enactment through the present has not comprehensively defined the term "personal injury". The dissent's argument based on early case law that it always has and does, ignores theFitzgibbon's Case comment, the piecemeal development of the statute in response to specific case law and the very language of § 1 (7A) itself, which proclaims its nonexhaustive character as follows: "'Personal injury' includes . . . . 'Personal injury'shall not include . . . . 'Personal injury" shall include . . . ." G.L.c. 152, § 1 (7A). (Emphasis added).
Moreover, after observing that there is "no authoritative history" to reveal what exactly the Legislature contemplated in the 1986 § 1 (7A) amendment process, the dissent provides its own, suggesting its speculations must be what the Legislature had in mind. We are unpersuaded. Instead we agree with the court's assessment in Robinson's Case, 416 Mass. 454, 459 (1993) that the 1986 amendments to § 1 (7A) "apparently, were the Legislative response to the court's suggestion" in Kelly's Case, supra. Thus, the problem or "mischief" the Legislature attended to in 1986 was that highlighted by Kelly's Case, supra, where an employer merely trying to conduct business, initiated a bona fide personnel action which caused a mental injury that resulted in liability under the Act.
Section 1 (7A) is nothing more or less than a nonexclusive itemization of certain categories of inclusions and exclusions from the definition of a "personal injury", which itself is but an element of the larger concept and term of art, the 'industrial injury' as defined in § 26. Insurers have fourteen days to either deny or pay benefits after receiving a report of "injury". G.L. c. 152, § 7. If an insurer (as here) has accepted the case, it cannot return to the question of whether there was a compensable injury. Further, § 8 which enumerates how benefits are modified or terminated, unilaterally and otherwise, does not permit insurers to assert there was no personal injury after accepting a case. And under § 8 (2)(c), if an employee attempts to return to work, but due to the work injury is unsuccessful within twenty eight days, compensation is to automatically resume without re-visitation of whether or not the injury comes under the Act. Because the case at bar is accepted, the insurer has conceded the existence of a compensable "personal injury".
How then is an insurer generally and this insurer in particular, to combat a mental claim that arises from a compensable physical injury? Simply by forcing the employee to prove the causal relationship between the accepted physical injury and the current mental medical disability. Mental injuries that derive from compensable physical injuries are not governed by the § 1 (7A) standards for mental harm that arises directly from work events. A mental disability that is but a sequela of a physical work injury is a link in an uninterrupted chain of causation, and must be evaluated under causal chain standards. Id. at 633-637; see Gulczynski v. Granada Hosp. Group, 7 Mass. Workers' Comp. Rep. 151, 152 (1993) (for general discussion of causal chain analysis), citing L. Locke, Workmen's Compensation § 222 (1981); Cennerazzo v. GTE Laboratories, 4 Mass. Workers' Comp. Rep. 253, 255 (1990).
The precise issue of physical injuries with mental sequelae has recently been decided by the reviewing board in Murphy v. Commercial Union, 10 Mass. Workers' Comp. Rep. ___ (March 27, 1996), citing Antoine v. Pyrotector, 7 Mass. Workers' Comp. Rep. 337 (1993). There is nothing in the well established case law on this issue or in the Legislative reactivity to certain specific cases as discussed above, that would prompt us to walk away from our unanimous opinion in Murphy, supra.
In identifying the links in a causal chain, adjudicators should apply a "but for" analysis. See J.R. Nolan L.J. Sartorio, Tort Law § 226, at 370-334 (2nd ed. 1989) (discussing "but for" and proximate causation). See also Roberts v. Southwick, 415 Mass. 465, 473 (1993). The judge must ask "but for the injury would the contended condition have occurred?" Where evidence reveals no explanation or intervening cause beyond the industrial injury, it can safely be concluded that the condition in contest is yet another link extending the causal chain. L. Locke, supra at § 222. Thus, a two year lapse presaging the onset of the employee's mental symptoms will not, in and of itself, bar a causal relationship finding. See Grattan, supra at 232-233 (judge's decision arbitrary where he relies on rapid decline in condition and finds work-related incidents did not contribute to employee's psychological disability because she continued to function normally for two years). Here, given the facts relied on by the judge, a finding of a gradually developed mental sequela from the physical industrial injury is entirely reasonable. Similarly, a worsening of the employee's mental state subsequent to a reduction in benefits after a § 11A conference did not break the causal chain according to the judge. (Dec. 11.) This latter situation can be analogized to a work injury worsened by medical treatment necessitated by that injury. See Burns's Case, 218 Mass. 8, 11 (1914). Such worsening remains compensable. Id.
Accordingly, because the decision reflects application of the correct legal standards and because the record sufficiently supports the findings, we affirm.
So ordered.
_________________________ Susan Maze-Rothstein Administrative Law Judge
_________________________ William A. McCarthy Administrative Law Judge
APPENDIX
There appears to be no authoritative legislative history providing interpretive guidance of the 1985 amendment to G.L.c. 152, § 1 (7A). L. Nason R. Wall, in Massachusetts Workers' Compensation Reform Act provide a general historical perspective of St. 1985, c. 572. Id., §§ 1.0-1.2, at 1-12 (1995 ed.). The legislative history which exists indicates that the 1985 Legislature initially was presented with a proposal to restrict compensability of cases where the disability had multiple etiologies — perhaps in response to the expansion of liability which had occurred as a result of the "as is" doctrine discussed in the Appeals Court decision in Kelly's Case, 17 Mass. App. Ct. 727, 462 N.E.2d 348 (1984).
Associated Industries of Massachusetts submitted the first such bill, House 2142, in January 1985, prior to the Supreme Judicial Court's opinion in Kelly's Case, 394 Mass. 684, 477 N.E.2d 582 (May 6, 1985). L. Nason R. Wall, Massachusetts Workers' Compensation Reform Act § 1.3, at 9. House 2142 provided in pertinent part:
SECTION 19. Subsection 7A of section 1 of Chapter 152 of the General Laws is hereby amended by striking said subsection and inserting in place thereof the following new subsection:
(7A) A 'personal injury" as used in this chapter shall be a "traumatic injury" or an "industrial disease" to the employee for which this chapter otherwise provides benefits to or on behalf of the employee.
1. A "traumatic injury" shall be:
(a) a trauma-induced physical injury; and
(b) a trauma-induced medically recognized mental injury if it causes a physical injury; and if it does not cause a physical injury, then a trauma induced medically recognized mental injury if it is caused by a threat of actual physical harm to the employee; and
(c) an aggravation of a pre-existing physical injury, disease or medically recognized mental injury caused by (a) and (b); and
(d) a physical injury, disease or medically recognized mental injury which is subsequently incurred as a consequence of (a) or (b); and
(e) provided that, in any event, (a) and (b) are caused by a tangible event or a series of tangible events to which the employee is exposed at work; and
(f) provided that (a) and (b) are not congenital medical conditions, or injuries pre-existing employment, or injuries caused other than as a result of the employment, or injuries caused by ordinary stress or ordinary activity.
2. An "industrial disease" shall be:
(a) a disease contracted by the employee which causes physical injury or a medically recognized mental injury; and
(b) an aggravation of a pre-existing physical injury, disease or medically recognized mental injury caused by (a); and
(c) a physical injury, disease or medically recognized mental injury subsequently incurred as a consequence of (a); and
(d) provided that the hazard of contracting such disease is inherent in the employment and it is caused by the employee's contact with or exposure to a foreign or natural substance at work.
Identical language appeared in House 3064. These bills, with a variety of other workers' compensation proposals, were referred to the Committee on Commerce and Labor on January 3, 1985.
The House and Senate Committees on Commerce and Labor hired two consultants to consider the various proposals and draft an appropriate bill: John Lewis, Esq. of Florida and Professor John Burton of Cornell. L. Nason R. Wall, Massachusetts Workers' Compensation Reform Act § 1.3 at 9. After public hearing and further study, the Committee reported out a revised bill on September 19, 1985, House No. 6700.
House No. 6700 provided, in pertinent part:
SECTION 22. Subsection 7A of said Section 1 as appearing in Chapter 437 of the Acts of 1941, is hereby amended by adding at the end thereof the following: "Personal injury" shall not include any injury resulting from an employee's purely voluntary participation in any recreational activity, including but not limited to athletic event, parties, and picnics, even though the employer pays some or all of the cost thereof. Personal injuries shall include mental or emotional disabilities where a significant contributing cause of such disability is an event or series of events occurring within the employment. (emphasis supplied)
House Nos. 3064 and 6700 were then referred to the Committee on Ways and Means. 1985 House Journal 1558 (September 19, 1985). The Committee on Ways and Means reported, recommending a different bill. House No. 6776 was then substituted. 1985 House Journal 1696 (October 16, 1995), 1713-1714 (October 17, 1985), 1736 (October 21, 1985).
House No. 6776, § 22 provided in pertinent part:
SECTION 22. Subsection 7A of said Section 1 as appearing in Chapter 437 of the Acts of 1941, is hereby amended by adding at the end thereof the following: — "Personal injury" shall not include any injury resulting from an employee's purely voluntary participation in any recreational activity, including but not limited to athletic events, parties, and picnics, even though the employer pays some or all of the cost thereof. Personal injuries shall include mental or emotional disabilities where the principal cause of such disability is an event or series of events occurring within the employment. (emphasis supplied)
The State House News Service reported Rep. Lemanski's comments about this bill on October 21, 1985: "We have taken the bills from the Governor, the AFL-CIO, and AIM in an effort to create a system that helps the people it serves. . . We also create cost limitations. I think we achieve the goals of employers and employees." The bill was debated on October 30, 1985. 1985 House Journal 1799-1808. As amended, it became House No. 6850. 1985 House Journal 1808.
House No. 6850, § 11 contained similar language to its predecessor bill. It included mental or emotional disabilities in the definition of personal injury "only where such disabilityarises principally out of an event or series of events occurring within the employment" (emphasis supplied). This bill was referred to the Committee on Ways and Means, 1985 Senate Journal 1446 (November 7, 1985) which reported it out with an amendment, inserting in its place the text of Senate No. 2596. 1985 Senate Journal 1538 (November 22, 1985).
Senate No. 2596, § 11 then changed the language to lessen the causal standard. It provided that mental or emotional disabilities were included in the definition of personal injury "only where a significant contributing cause of such disability is an event or series of events occurring within the employment" (emphasis supplied). The bill was debated, amended and sent to the House for concurrence on November 25, 1985. 1985 Senate Journal 1546-1547. The House debated the bill and made a further amendment, though not to this provision, It then sent the bill as amended back to the Senate for concurrence in the further amendment. 1985 House Journal 1956-1957 (December 2, 1985). By voice vote the Senate agreed to the House amendment. 1985 Senate Journal 1575 (December 2, 1985).
The bill which, according to the official legislative records, still contained the words "personal injuries shall include mental or emotional disabilities only where a significant contributing cause of such disability is an event or series of events occurring within the employment" was then enacted by the House and the Senate, and laid before the Governor. 1985 House Journal 1967; 1985 Senate Journal 1591.
Somehow, after having been passed to be engrossed and before being passed to be enacted, the word "significant" was dropped omitted from the text of St. 1985, c. 572, § 11. From the official legislative history, the omission appears to have been merely a clerical error. See Arbogast v. Employers Ins. of Wausau, 26 Mass. App. Ct. 719, 722, 532 N.E.2d 73, 75 (1988) ("a classic example of an oversight occurring in the course of a large legislative enterprise, in this case the Legislature's overhaul of G.L.c. 152 in 1985"). Nothing in the legislative record indicates the intent either of either House of the General Court to omit the word "significant" from the amending act.
The action taken by the Legislature in 1986 reinforces the interpretation that the omission of the word "significant" was merely a clerical error. In 1986, the Legislature exercised its power to correct this unintended defect by means of a curative act. St. 1986, c. 662, § 6; see Arbogast, supra, 26 Mass. App. Ct. at 723, 532 N.E.2d at 757. The curative act was expressly made retroactively effective to the same date that the original 1985 amendment did go into effect, January 1, 1986. St. 1986, c. 662, § 55. As in 1985, the application of the 1986 legislative act was governed by G.L.c. 152, § 2A. See Shelby Mutual Insurance Co. v. Commonwealth, 420 Mass. 251, 255, 649 N.E.2d 732 (1994) (applying G.L.c. 152, § 2A to an amendment which did not expressly designate its application).
According to G.L.c. 152, § 2A (1946), these amendments did not increase compensation and are therefore deemed "procedural" and applicable to personal injuries irrespective of the date of their occurrence. See Shelby, supra, 420 Mass. at 256, 649 N.E.2d at 734; Bamihas v. Table Talk Pies, 9 Mass. Workers' Comp. Rep. 595, 600 ("the plain language of the 1946 version of § 2A dictates that because the 1986 version of § 35E decreases and does not increase benefits to injured workers it is deemed procedural with retroactive effect").
To the extent that prior decisions of the Reviewing Board are inconsistent with this position [see Leak v. F.A. Bassett Printing Co., 4 Mass. Workers' Comp. Rep. 206, 211, n. 7 (1990);Day v. Lumberman's Mutual Casualty Company, 4 Mass. Workers' Comp. Rep. 312, 316, n. 5, third paragraph (1990); Moore v. Dept. of Public Works, 6 Mass. Workers' Comp. Rep. 129, 130, n. 2 (1992)], they were based on a fallacious understanding of G.L.c. 152, § 2A which was rejected by the Supreme Judicial Court inConnolly's Case, 418 Mass. 848, 642 N.E.2d 296 (1994). TheConnolly court held that the common law rule enunciated inHanscom v. Malden Melrose gas Light Co., 220 Mass. 1, 3 (1914) and Price v. Railway Express Agency, 322 Mass. 476, 483-484 (1948), previously relied on by the Reviewing Board to construe as substantive amendments which did not increase compensation, was inapplicable in light of the plain language of G.L.c. 152, § 2A. Connolly's Case, 418 Mass. at 851, 642 N.E.2d at 299.
The last sentence of the current § 1 (7A) relating to bona fide personnel actions was not added to the section in 1985 and has a different effective date. The "bona fide personnel action" language did appear in another section of St. 1985, c. 572, to wit: § 38. Notably, the Legislature specifically directed that § 38 was to be deemed substantive, and therefore, unlike § 11, was only to be applied to injuries occurring after its effective date of December 10, 1985. St. 1985, c. 572, § 67.
Section 1 (7A) provides the sole method of recovery for mental or emotional illness under the Workers' Compensation Act. Its definition of "personal injury" excludes, and thereby renders noncompensable, mental and emotional disabilities with only a minor connection to employment. The proper interpretation of the statutory language promotes the beneficent purpose of the act — to compensate employees for incapacity which is sufficiently work related to treat it as a cost of doing business, while implementing the clear intent of 1985, 1986 and 1991 Legislatures to prohibit recovery for emotional or mental disabilities only tangentially work related. Contrary to the majority opinion, the workers' compensation act no longer permits recovery for mental disabilities with only an insignificant, minor or slight connection to a physical work injury.
To the extent that Murphy v. Lawrence General Hosp., 10 Mass. Workers' Comp. Rep. 263 (1996), a case in which I participated as a panelist, holds to the contrary, it is now my opinion that the case was wrongly decided and should be overruled.
See Zerofski's Case, 385 Mass. 590, 593, 433 N.E.2d 869, 872 (1982) (interpreting the phrase "personal injury arising out of and in the course of . . . employment," as it appears in G.L. c. 152, § 26).
I. General Principles of Statutory Interpretation
The reviewing board's interpretation of the Workers' Compensation Act is governed by G.L.c. 4, § 6 which provides rules for construction of statutes. The rules must be observed "unless their observance would involve a construction inconsistent with the manifest intent of the law-making body or repugnant to the context of the same statute." G.L.c. 4, § 6. Clause third governs the construction of words and phrases. It provides:
Words and phrases shall be construed according to the common and approved usage of the language; but technical words and phrases and such others as may have acquired a peculiar and appropriate meaning in law shall be construed and understood according to such meaning.
G.L.c. 4, § 6, cl. third.
The majority shortcuts the required analysis by equating the term "mental injury" with "mental disability". See majority, slip op. at 8. In effect, the majority interpretation inserts into the statute a limiting clause which the Legislature did not write. It "read[s] the reference to 'an event or series of events' at work, as indicative of the Legislature's intent to set the ground rules and standard for purely mental injuries produced directly from workplace circumstances." See majority, slip op. at 10. Had the Legislature intended to limit the compensability of only those mental disabilities which arose from purely mental stimulus and not those mental disabilities which were the sequelae of a physical injury, it knew how to do so. See 1985 House No. 2 142, § 19 (1) in Appendix, infra. The reviewing board must base its adjudication on what the Legislature wrote.
The majority reads the statute as if it said "Personal injuries shall include mental or emotional disabilities only where a significant contributing cause of . . . [the initial] disability is . . . [a mentally stressful] event or series of events occurring within any employment." See majority, slip op. at 10.
The Lavoie case cited by the majority, slip op. at 10, does not address the issue presented here and thus provides no authority for the majority's interpretation.
Where the statutory language is clear, judges look to the language itself, giving it its natural and unstrained meaning.Maloof's Case, 10 Mass. App. Ct. 853, 407 N.E.2d 397, 398 (1980). "A statute is plain and unambiguous if virtually anyone competent to understand it, and desiring fairly and impartially to ascertain its signification, would attribute to the expression in its context a meaning such as the one we derive, rather than any other; and would consider any different meaning, by comparison, strained, or far-fetched, or unusual, or unlikely." New England Medical Center Hospital, Inc. v. Commissioner of Revenue, 381 Mass. 748, 750, 412 N.E.2d 351, 352 (1980). "The statutory language itself is the principal source of insight into the legislative purpose." Scheffler's Case, 419 Mass. 251, 255, 643 N.E.2d 1023, 1026 (1994) quoting from Hoffman v. Howmedica. Inc., 373 Mass. 32, 37 (1977). With these principles in mind, I turn to the statutory language in question.
II. The Actual Statutory Language
General Laws c. 152, § 1 (7A), provides in pertinent part: "Personal injuries shall include mental or emotional disabilities only where a significant contributing cause of such disability in an event or series of events occurring within any employment." St. 1985 c. 572, § 11; as amended by St. 1986, c. 662, § 6.
For post-December 23, 1991 injuries, the law now requires that work be "the predominant" cause. G.L.c. 152, § 1 (7A) as appearing in St. 1991, c. 398, § 14. The 1991 amendment substituted "the predominant" for "a significant" and "is" for "in", and inserted the fourth sentence limiting recovery in some preexisting condition cases.
So in enrolled bill; probably should read "is". 152 M.G.L.A. § 1 at 12.
Webster's Dictionary defines "disability" as a deprivation or lack of physical, intellectual or emotional capacity or fitness; the inability to pursue and occupation or perform services for wages because of physical or mental impairment; an illness, injury or condition which incapacitates in any way. Merriam-Webster, Inc., Webster's Third International Dictionary 642 (1981). The dictionary definition is consistent with the term's usage in the workers' compensation system. See Medley v. E.F. Hauserman Co., 7 Mass. Workers' Comp. Rep. 97, 99 (1993).
The Committee on Occupational Health of the Academy of Orthopaedic Surgeons has defined "disability" as "the limitations in work activities or the activities of daily living resulting from impairment." A Physician Primer on Workers' Compensation, Appendix 1, Glossary of Workers' Compensation Terms, at 61-62 (1992). The term is used throughout the workers' compensation act to mean medical problems resulting from work; at times it is used in a manner synonymous with "incapacity." As used in the workers' compensation system, the term "disability" is not time limited; it includes all medical sequelae of a work injury, whether of a physical or mental etiology.
See §§ 8 (1) ("commencement of disability"), 8 (2)(c) ("disability resulting from the injury"); 10 (1) ("onset of disability"); 11A(2); 34B(b) ("permanent and total disability benefits under section 34A"); 35 ("permanent partial disability"); 36B ("partial disability benefits"); 37 ("disability that is substantially greater by reason of the combined effects of such impairment and subsequent personal injury than the disability which would have resulted from the subsequent personal injury alone"); 37A (personal injury aggravated by war "disability"); medical examination "during the continuance of his disability"); 46A (recovery of accident and health benefits paid for compensable "disability"); and 73A ("partial disability").
The statutory words, "shall include mental or emotional disabilities only where a significant contributing cause of such disability," create the limitation on compensability. They are common English words, not terms of art, and therefore must be interpreted according to their plain dictionary definitions. G.L. c. 4, § 6, cl. third; Gateley's Case, 415 Mass. 397, 399, 613 N.E.2d 918, 919 (1993), citing Hashimi v. Kalil, 388 Mass. 607, 609, 446 N.E.2d 1387 (1983). The word "shall" is ordinarily interpreted as having a mandatory or imperative obligation. Hashimi, supra, 388 Mass. at 609, 446 N.E.2d at 1389. This interpretation is reinforced by the following word "include" which is an unmistakable word of command. City of Quincy v. Massachusetts Water Resources Authority, 421 Mass. 463, 469, 658 N.E.2d 145, 148 (1995). "Only" is not a technical word and means "solely" or "exclusively." K.J.M. v. M.C., 35 Mass. App. Ct. 456, 624 N.E.2d 571, 572 (1993), citing Sherwin v. Smith, 282 Mass. 306, 310, 185 N.E. 17, 18 (1933); Black's Law Dictionary 1089 (6th ed. 1990); Webster's Third New Intl. Dictionary 1577 (1971).
The entire provision reads: "Personal injuries shall include mental or emotional disabilities only where a significant contributing cause of such disability i[s] an event or series of events occurring within any employment."
The limitation "shall include mental or emotional disabilities only where a significant contributing cause of such disability i[s] an event or series of events occurring within any employment" conflicts with the general beneficent purpose of the workers' compensation act. See Kelly's Case, 17 Mass. App. Ct. 727, 729, 462 N.E.2d 348, 350 (1984). It therefore appears, from the plain language used, that the Legislature intended to restrict recovery in cases where the connection to work was slight, insignificant, minor. See Gateley, supra, 415 Mass. 397, 400-401, 613 N.E.2d at 920, comparing Young v. Duncan, 218 Mass. 346, 106 N.E. 1 (1914), with Bengtson's Case, 34 Mass. App. Ct. 239, 245, 609 N.E.2d 1229 (1993); Robinson's Case, 416 Mass. at 458-459, 623 N.E.2d at 480-481.
Bengtson's Case discusses the legislative intent of the prior sentence in the amending legislation, St. 1985, c. 572, § 11, limiting recovery for recreational activities. 34 Mass. App. Ct. at 243-244, 609 N.E.2d at 1232.
The plain import of the statutory language is that one can recover workers' compensation benefits for mental or emotional disabilities only upon showing a heightened causal relationship between work events and the mental disability, whenever the mental disability may occur and whether caused by physical or mental stimulus. "What is now required is that the employee establish that a work-related event was a 'significant' as opposed to a minor cause of the employee's emotional distress"; "an event of employment must be a significant contributing cause to an employee's disability." Robinson's Case, supra, 416 Mass. at 459-460, 623 N.E.2d at 481.
The majority performs no analysis of the words of § 1 (7A) itself before jumping immediately to extrinsic sources to carve out a physical etiology exception to these statutory words of mandatory limitation. See majority, slip op. at 8. Because the statutory words, "shall include . . . only where," are clear and unambiguous and, given their ordinary meaning, yield a workable and logical result, there is no need to resort to extrinsic aids to interpret them. Hashimi, supra, 388 Mass. at 610, 446 N.E.2d at 1389. Nor does the remaining statutory language of this sentence, "an event or series of events occurring within any employment," require resort to extrinsic interpretive aids or lead to the majority's interpretation.
The ordinary English definitions of the remaining statutory terms make it clear that recovery is possible for some mental disabilities resulting from a physical injury. An "event" is "something that happens." Webster's Third International Dictionary (1981). An injury is something that happens, and can occur within employment. See G.L.c. 152, § 26 (defining compensable injuries as personal injuries arising out of and in the course of employment). Thus, under the plain language of the sentence, a mental disability (at whatever time it develops and whether caused by physical or mental stimulus) which is significantly caused by a physical work injury is a compensable "personal injury."
Contrary to the majority's note 5, I do not suggest that "personal injury" and "event" are one and the same. The word "event" is but one term used in § 1 (7A) to define the concept of "personal injury" when "mental disability" is involved. I merely suggest that a change in the body caused by work activity can be an "event" within the meaning of § 1 (7A).
The spector of noncompensability discussed in note 1, supra, is thus unsupported by the plain language of the statute.
Even if one found the statutory terms "event or series of events occurring within any employment" to be words of art rather than common English, court precedent supports a construction of them as including the consequences of an initial injury. "It is . . . reasonable to consider that the legislature was using the phrase [occurring within the employment] merely as a 'shorthand' for 'arising out of and in the course of employment'." L. Nason R. Wall, Massachusetts Workers' Compensation Reform Act § 10.4, at 267. See Burns's Case, 218 Mass. 8, 105 N.E. 601 (1914) (insurer liable for later medical effects of a work event; septicaemia or blood poisoning resulting from a bedsore suffered by an employee confined to bed by paralysis resulting from a spinal fracture on the job); McElroy's Case, 397 Mass. 743, 494 N.E.2d 1 (1986) (the street risks provision of G.L.c. 152, § 26 includes the post-injury event of injuries received in a car accident occurring on route to treatment for a work injury). In McIsaac's Case, 226 Mass. 67, 164 N.E. 653 (1928), an employee was awarded compensation for mental disability which developed after a back strain. The court viewed the question simply as one of sufficient proof of causation. That remained the focus of court analysis until the Zerofski decision. Zerofski's Case, 385 Mass. 590, 433 N.E.2d 869 (1982).
"[P]sychasthenia, a highly nervous condition due to worry, apprehension, fright or anything which would bring about a state of anxiety and fear." Id., 266 Mass. at 69, 164 N.E. at 654.
The Zerofski court wrote: "The distinction between compensable and noncompensable injuries, however, involves more than the factual problem of causation. In some cases work may be a contributing cause of injury, but only to the extent that a great many activities pursued in its place would have contributed. When this is so, causation in fact is an inadequate test." Zerofski's Case, 385 Mass. at 594, 433 N.E.2d at 872.
Thus, the state of the law prior to the 1985 amendment does not require that one read words into G.L.c. 152, § 1 (7A) to limit its scope to mental disabilities caused by mental stimulus. Such precedent supports the construction of the terms "events occurring within . . . employment" as including a change in the body caused by work activity, thereby allowing compensation for some mental disabilities which are a direct consequence of an original injury.
The proximate cause is that which in a continuous sequence, unbroken by any new cause, produces an event and without which the event would not have occurred. It may be assisted or accelerated by other incidental and ancillary matters, but, if it continues as an operative and potent factor, the chain of causation is not broken. . . . 'The active efficient cause that sets in motion a train of events which brings about a result without the intervention of any force started and working actively from a new and independent source is the direct and proximate cause'. . . 'The mere circumstance that there have intervened, between the wrongful cause and the injurious consequence, acts produced by the volition of animals or of human beings, does not necessarily make the result so remote that no action can be maintained. The test is to be found, not in the number of intervening events or agents, but in their character, and in the natural and probable connection between the wrong done and the injurious consequence.'
. . . . the primary cause may be the proximate cause, provided it continues to be efficiently, actively and potently operative, although successive subsidiary instrumentalities may cooperate to produce the final result.
. . . . It is settled that, where an injury arising from a cause which entails liability on the defendant combines with a pre-existing or a subsequently acquired disease to bring about greater harm to the plaintiff than would have resulted from the injury alone, the defendant may be liable for all the consequences. If the injury causes or contributes to cause the development of a pre-existing disease, the person liable for the injury is liable also for the resulting aggravation. The wrongdoer may be held responsible for the harmful results of the combined effects of his wrongful act and the disease. . . Burns' Case, 218 Mass. 8, 11, 105 N.E. 601, Ann. Cas. 1616A, 787. . . If the injury directly causes disease, even though it was not theretofore present in the system of the person injured, liability of the wrongdoer extends to all injurious results of such disease.
. . . . The result follows that, if any injury progressively so reduces the general vitality of the person injured as to make him peculiarly susceptible to a disease which is contracted, the chain of causation is not thereby broken as matter of law. . . (emphasis supplied; citations omitted)
Wallace v. Ludwig, 292 Mass. 251, 254-257, 198 N.E. 159, 161-163 (1935). The majority's fear that § 1 (7A), if applicable, eliminates the compensability of the entire category of mental sequelae cases is without basis.
See note 1, supra.
III. The Cause of Section 1 (7A)'s Enactment, the Mischief or Imperfection to be Remedied, and the Main Object Accomplished
The purpose of the 1985 amendment to § 1 (7A) was to restrict coverage of mental and emotional disabilities. See L. Nason R. Wall, Massachusetts Workers' Compensation Reform Act § 1.1, at 8, § 10.4 at 265-270 (1995 ed.). The 1985 Legislature was specifically responding to limit the "as is" doctrine as it had developed over the years in mental disability cases. See Appendix, infra. The 1985 reform "negated the 'contribution to the slightest degree' standard." L. Nason R. Wall, Massachusetts Workers' Compensation Reform Act § 10.4 at 270.
The 1991 Legislature acted to limit the "as is" doctrine with respect to other types of disabilities. See St. 1991, c. 398, § 14 ("If a compensable injury or disease combines with a preexisting 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 such compensable injury or disease remains a major but not necessarily predominant cause of disability or need for treatment.")
Earlier attempts at such limitation occurred unsuccessfully in 1984 and 1985. See House No. 4538 (1984) which was followed in 1985 by House No. 2142, § 19 (1985), the text of which is in the Appendix, infra.
The proximate cause test originally developed by the Burns court, as stated in Wallace, supra, evolved into the workers' compensation "as is" doctrine. This doctrine was restated inZerofski's Case, 385 Mass. at 594, 433 N.E.2d at 872.
Under the pre-1985 definition of "personal injury," an employee could recover for a disabling injury even though that injury was due in part to the employee's preexisting weaknesses or vulnerabilities. Zerofski's Case, 385 Mass. at 592, 433 N.E.2d at 871. The Appeals Court relied on the Zerofski reasoning inKelly's Case, 17 Mass. App. Ct. 727, 462 N.E.2d 348 (1984), stating:
Our workers' compensation act offers very broad protection to employees. . . . It has been consistently held that the act should be liberally construed and interpreted wherever possible in favor of the injured employee. . . . Unlike the compensation acts of many other States, our act does not contain a requirement that an injury occur "by accident," and the term "[p]ersonal injury has been broadly defined to include 'whatever lesion or change in any part of the system produces harm or pain or a lessened facility of the natural use of any bodily activity or capability. . . . Entitlement to compensation does not depend on the fault of the employer or upon the foreseeability of harm. . . . It is settled that the employer must take the worker "as is" with existing disabilities and propensities to injury. . . and without regard to whether a reasonable person would have suffered the injury. (emphasis supplied; citations omitted)
Id., 17 Mass. App. Ct. at 729, 462 N.E.2d at 350.
Prior to the 1985 amendment to G.L.c. 152, § 1 (7A), the term "personal injury" had been construed to include mental and nervous disorders arising out of employment where such injuries were the result of physical trauma, no matter how slight the impact.FitzGibbons' Case, 374 Mass. 633, 638, 373 N.E.2d 1174, 1177 (1978) and cases cited therein. Additionally, the court had established that physical and organic disorders resulting from mental trauma were compensable personal injuries where there was a causal relationship between the mental trauma, the physical or organic injury, and "the nature, conditions, obligations or incidents of the employment; in other words, out of the employment looked at in any of its aspects." Id. The court had also held that the term "personal injury" permitted compensation in cases involving mental disorders or disabilities causally connected to mental trauma or shock arising "out of the employment looked at in any of its aspects." Id. The court found no valid distinction which would preclude mental or emotional disorders caused by mental or emotional trauma from being compensable. Id.
The majority and I disagree about the cause of § 1 (7A)'s enactment. See note 4, supra. I see the amendment as a reaction to FitzGibbons, and its progeny, not a codification of existing law. It is inaccurate to state that the amendment made no change in the preexisting law. To view § 1 (7A) as merely a codification ignores the language of the amendment, court decisions and the meager legislative history which exists. See Appendix, infra.
The majority at note 6 erroneously characterizes this portion of my dissent as ignoring FitzGibbons when it is plain from the above discussion that I do not ignore the case but consider it part of the cause of § 1 (7A)'s enactment.
Following the FitzGibbons precedent, the Appeals Court and the Supreme Judicial Court rejected the concept that there was a higher standard of proof for mental injuries, insisting that the employer must take the employee "as is" with existing disabilities and propensities to injury. Kelly's Case, 17 Mass. App. Ct. at 729, 462 N.E.2d 350, aff'd, 394 Mass. 684, 477 N.E.2d 582 (1985). Because the court found that Kelly's mental disability was "directly related" to specific work events, it awarded compensation. Id., 17 Mass. App. Ct. at 730, 464 N.E.2d at 351; 394 Mass. at 688, 477 N.E.2d at 585.
The Appeals Court emphasized that Kelly proved causation, Id., at fn. 4, as did the higher court. 394 Mass. at 686, 477 N.E.2d at 583. Three Justices dissented from the Supreme Judicial Court's opinion, challenging the assumptions underlying the causation holding and saying that the majority opinion blurred the critical distinction between medical problems which were sufficiently work-related to justly support an award of compensation from those triggered by conditions which were common and necessary to all or a great many occupations which were not compensable.Id., 394 Mass. at 690 et seq., 477 N.E.2d at 585 et seq. The dissent said: "I think the court has departed from the legislative intent. . ." 394 Mass. at 692, 477 N.E.2d at 587. The Legislature's reaction to Kelly's Case was swift.
By the amendment further defining the term "personal injury" in G.L.c. 152, § 1 (7A), the Legislature rejected the opinion of the Kelly majority and clarified the extent of causal connection required for an award based upon mental illness. Although the amendment codified the inclusion of mental and emotional disabilities within the definition of "personal injury" under the act, it provided that in order to recover for that type of medical problem, an employee must prove that a significant (rather than a "slight" or "a minor") contributing cause of the disability was an event or events occurring within the employment. Catalano v. First Essex Savings Bank, 37 Mass. App. Ct. 377, 379, 639 N.E.2d 1113, 1116 (1994), appeal den., 419 Mass. 1101, 644 N.E.2d 225 (1994); Robinson's Case, 416 Mass. 454, 459, 623 N.E.2d 478, 480-481 (1993). Compare FitzGibbons' Case, 374 Mass. at 638, 373 N.E.2d 1177 ("no matter how slight" the impact of work).
The Legislature may have been influenced to abandon the prior judicial approach based on the nature of the stimulus, and instead adopt a scheme predicating compensability on the significant (after December 23, 1991, predominant causes, see note 2, supra) causes of the disability, by the suggestion of the author of a 1980 law review article. See 15:2 New England Law Review, Notes, When Stress Becomes Distress: Mental Disabilities under Workers' Compensation in Massachusetts, 287 et seq. (1980).
The author wrote: ". . . psychiatric research has determined that significant relationships exist between the kind of work a person does and the nature of the psychological disorder which that person develops. . . it is known that an individual's ability to cope with sundry future life crises in a more or less healthy fashion is largely defined before he assumes his role in the workplace. If that is so, and if workers' compensation is to continue to compensate employees for injuries arising from employment, it is especially important that the real cause of an employee's mental disability can be isolated. An accurate determination of cause and effect would relieve industry of the burden of compensating workers for mental disorders that have roots outside the workplace. Likewise, industry would be required to pay for injuries caused by the business enterprise." Id. at 287.
"[T]he note concludes with a proposal to abandon the present judicial approach in favor of a scheme which predicates compensability on the cause of the disability rather than the form of the stimulus." Id. at 289.
"Once a causal nexus is established between the injury and the trauma, ancient notions of personal injury should be abandoned and replaced by the modern doctrine which merely requires industry to pay for the ills it causes." Id. at 304.
"One commentator has argued that . . . the term "personal injury" should be abandoned in favor of "disability" so that the fine legal distinctions resulting from the doctrine of wear and tear can be discarded. . . [This view] unfairly casts the economic burden of all disabilities on industry, including those which have a slim causal connection to the nature of the employment. . . . The solution . . seems to rest within the thorny realm of causation." Id. at 306-307.
See also M. Cohen, Workmen's Compensation Awards for Psychoneurotic Reactions, 70 Yale Law Journal 1129 (1961) (at 1137-1138: criticizing the legal theory distinguishing between mental injuries caused by physical stimulus from those caused by mental stimulus; and at 1143-1144: suggesting that the line be drawn by manipulating the burden of proof on causation); L. Joseph, The Causation Issue in Workers' Compensation Mental Disability Cases: An Analysis, Solutions, and a Perspective, 36 Vanderbilt Law Review 263 (1983) (discussing the "distributive considerations" of the causation issue and criticizing mental-physical distinctions as failing to assure genuineness).
The mental disability amendment to § 1 (7A) did not completely nullify existing law with respect to compensability of emotional disabilities. See Bengtson's Case, 34 Mass. App. Ct. 239, 245, 609 N.E.2d 1229, 1233 (1993) (interpreting the 1985 recreational exception to "personal injury" also included in St. 1985, c. 572, § 11). Kelly's Case, 394 Mass. 684, 477 N.E.2d 582 (1985) had instructed us that mental and physical disabilities should be similarly treated. The only change in this tenet made by these amendments to § 1 (7A) is the heightened degree of causal contribution now required for emotional or mental disabilities. The plain statutory language does not prevent an employee from recovering for an emotional disability resulting from a physical injury. It merely requires that after January 1, 1986, to recover for an after-occurring mental or emotional disability, whatever its etiology, an employee must establish that the causal connection to work events is significant rather than trivial.
Compare the different standard for physical disabilities where, at least until 1991, the required degree of causal connection continued to be minor. The 1991 Legislature added the fourth sentence of the current G.L.c. 152, § 1 (7A) requiring a heightened causal standard for injuries occurring after December 23, 1991 involving some pre-existing conditions. See note 13, supra.
IV. Conclusion: Section 1 (7A) Limits But Does Not Exclude Recovery For Mental Disability
The interpretation that G.L.c. 152, § 1 (7A) applies to all mental disabilities, whenever arisen and whether caused by physical or mental stimuli, is thus consistent with the express provisions of the statute, considered in connection with the cause of its enactment, the mischief or imperfection to be remedied and the main object accomplished. See Scheffler's Case, 419 Mass. 251, 643 N.E.2d 1023, 1026 (1994). Although the statute limits compensability of some mental disability claims, it continues to allow for compensation under circumstances where the Legislature has determined that it is justly due because the disability is sufficiently work-related, i.e. "ONLY WHERE" "events occurring within . . . employment" are "a significant contributing cause" of the mental illness. Thus a judge, confronted with a claim of mental or emotional disability flowing from a work injury, must weigh the relative causative contributions of the work injury and other factors, if any. The analysis to be performed is similar to that required in pre-existing condition cases for injuries occurring after December 23, 1991. See Hammond v. Merit Rating Board, 9 Mass. Workers' Comp. Rep. 708 (1995) and Robles v. Riverside Mgmt., Inc., 10 Mass. Workers' Comp. Rep. 191 (1996) for our varying approaches to the required analysis.
These factors may be varied as reflects the broad range of human experience, e.g. childhood experiences, death of a loved one, divorce, criminal attack, etc. as well as genetic predisposition. See When Stress Becomes Distress, supra, at 287, citing P. Carone, S. Kieffer, L. Krinsky S. Yolles, The Emotionally Troubled Employee: A Challenge to Industry 75 (1976). See also Workers' Compensation, 70 Vanderbilt Law Review at 271-273 (discussing the complex multiple etiology of most mental disorders).
V. Recommittal Required To Apply Correct Legal Standard
The decision does not explicitly apply the correct legal standard, that the mental disability must be significantly caused by "events occurring within . . . employment." See G.L.c. 152, § 1 (7A) (1986). Therefore, it is appropriate to recommit for further findings of fact applying this law. Lavoie v. Westfield Public School Systems, 7 Mass. Workers' Comp. Rep. 77 (1993);Grattan v. Worcester State Hospital, 9 Mass. Workers' Comp. Rep. 226, 234 (1995).
For these reasons, I dissent from the majority's affirmation.
______________________________ Suzanne E.K. Smith