Opinion
BOARD No. 011190
Filed: December 4, 1996
REVIEWING BOARD DECISION
(Judges Maze-Rothstein, McCarthy and Smith)
APPEARANCES
Terrence A. Low, Esq., for the employee
Arthur Jackson, Esq., for the self-insurer
The self-insurer appeals from a decision dismissing its complaint to discontinue or modify the employee's G.L.c. 152, § 35 partial incapacity benefits. It asserts error as a matter of law because the administrative judge ruled the medical issues complex and allowed additional medical evidence. See G.L.c. 152, § 11A(2). It further argues that there was no current medical evidence to support a finding of continued causal relationship between the employee's chest wall pain and the industrial injury. We disagree with the first assertion but reverse on the second as will be discussed below.
General Laws c. 152, § 11A(2) gives an impartial doctor's report the effect of "prima facie evidence of the [medical] matters contained therein" and expressly prohibits the introduction of other material medical testimony unless the judge finds that such evidence is required due to the complexity of the medical issues or the inadequacy of the report. O'Brien v. Blue Cross/Blue Shield, 9 Mass. Workers' Comp. Rep. 16 (1995), appeal docketed, No. 07058 (SJC October 30, 1995).
From 1978 onward, Woodrow Dunham ("employee") was employed by Western Massachusetts Hospital ("employer"), a self-insurer, as a boiler-maintenance attendant and fireman. (Dec. 4.) His duties were to change and service burners, clean out and maintain boilers, and to regulate boiler pressure. Id.; see also (Tr. 19-20.) On January 3, 1990, at the age of sixty-five, he fell at work on a fire brick and fractured four ribs. (Dec. 3-4.) Since then, he has complained of debilitating and chronic chest wall pain that is incited by the mere act of swallowing solids or liquids. (Dec. 4-5; Tr. 36.)
The employee's work related condition has been the subject of two hearing decisions by two different judges. The first decision, filed on February 5, 1993, was not appealed. The second decision, filed on October 26, 1994, brings the appeal before us. The procedural history of both is germane because the unappealed decision was the subject of a stipulation between the parties as to facts conclusively decided for purposes of res judicata at the second hearing.
The self-insurer accepted initial liability for the employee's injury and began paying G.L.c. 152, § 34 temporary total incapacity benefits. (1993 Dec. 3; Employee's Brief 2.) Eventually, however, it questioned the causal relationship between the industrial accident and the employee's chest wall pain. It filed a complaint to modify or discontinue the employee's benefits. After a § 10A conference, a discontinuance of benefits was ordered effective September 17, 1991. Id. The employee filed an appeal to a hearing de novo. In a February 3, 1993 decision, the employee's § 34 benefits were reinstated from January 4, 1990 to October 17, 1991 and continuing § 35 benefits were awarded from October 18, 1991. (1993 Dec. 7.)
Not satisfied that causal relationship between the employee's chronic chest wall pain and the injury continued, the self-insurer again sought to modify or discontinue benefits. (Dec. 3.) After a February 15, 1994 § 10A conference, a new judge declined to modify or discontinue the employee's benefits. The self-insurer appealed to hearing de novo.
At hearing, the parties entered into the following stipulations:
[T]he self-insurer was and is liable for an industrial injury which befell the employee on January 3, 1990; Section 34 benefits [and Section 35 benefits] were paid to the employee . . .; a finding entered by the [prior judge] in a decision entered on February 5, 1993 to wit: '[the employee] was employed as a fireman at the Western Massachusetts Hospital on January 3, 1990 when he fractured his . . . ribs in an industrial accident . . .' ought be incorporated into the findings arising from this proceedings; and that the only condition alleged by the employee as disabling him and being related to his industrial injury is chronic chest wall pain such as that found . . . to have existed at the time of the last hearing involving these parties.
(Dec. 3-4.)
On June 13, 1994 before the hearing, a § 11A physician examined the employee and filed a report. The § 11A doctor felt the employee's ribs had fully healed and that current symptomatology related only to his age. (Dec. 6.) The employee moved for and was granted additional medical evidence on a ruling of complexity. (Dec. 3.)
On October 26, 1994 the decision issued. In it the judge did not adopt the § 11A opinion, finding instead that the employee continued to be plagued by the same chest wall pain initially found to be related to the work injury in the unappealed February 5, 1993 decision. (Dec. 6.) He also found the medical evidence before him and the employee's credible testimony of unabated chest pain sufficed to rebut the prima facie weight of the § 11A medical examiner's conclusions on causal relationship. (Dec. 7.) We have the self-insurer's appeal from this decision.
The self-insurer contends it was error for the judge to rule the medical issues complex. It would have the reviewing board rule that as a matter of law, four broken ribs are "easily understood" and therefore cannot be ruled complex. (Self-insurer's Brief, 5.) Second, the self-insurer argues that the because the judge provided no grounds for his "decision" on complexity, it should be reversed. Id. It also submits that because the § 11A doctor was himself qualified to comment on the employee's medical condition the medical issues should not be found complex. Id. Finally, the self-insurer accuses the employee of "doctor shopping" revealed by the fact that the motion for additional medical evidence was made after receiving an unfavorable report. (Self-Insurer's brief 5-7.) This final assertion is without merit because it ignores both where the burden of proof lies and the adversary process generally.
The explicit language of § 11A(2) accords administrative judges discretion to determine whether a medical issue is complex, and even authorizes judges in appropriate cases to allow additional medical evidence sua sponte. G.L.c. 152, § 11A(2) (emphasis added). It states in pertinent part:
Notwithstanding any general or special laws to the contrary, no additional medical reports or depositions of any physicians shall be allowed by right to any party; provided, however, that the administrative judge may, on his own initiative or upon a motion by a party, authorize the submission of additional medical testimony when such judge finds that said testimony is required due to the complexity of the medical issues involved or the inadequacy of the report submitted by the impartial medical examiner.
G.L.c. 152, § 11A(2) (as amended by St. 1991, c. 398, § 30). Complexity, however, is defined in neither the statute nor in the regulations. Thus, we look to the ordinary and approved usage of the term to ascertain the meaning of complexity in the context of the statute and the legislature's intent in its enactment. See Jinwala v. Bizzaro, 24 Mass. App. Ct. 1, 4-6 (1987). Complexity means "the condition or quality of being complex," and complex means "not simple; involved or complicated." Webster's New World Dictionary, (3rd ed. 1991). As with any qualitative concept, complexity involves a subjective component. Like beauty, it is in the eye of the beholder, because one person's complexity is another's simplicity. What one views as complex is largely dependent on individual knowledge, experience and education. Compare Mendez v. The Foxboro Co., 9 Mass. Worker's Comp. Rep. 641 (1995) (treatment of inadequate reports where the statute prescribes particulars which must be assessed by § 11A doctors where feasible); see also Lebrun v. Century Markets, 9 Mass. Worker's Comp. Rep. 692 (1995).
Here, the judge had to assess not only four broken ribs but also chest wall pain alleged to be chronic and a lengthy disability of at least four years duration, all in an employee of advanced age. If the judge felt this constellation of medical circumstances presented complexities, we can not say the judge's determination in that regard was arbitrary, capricious or abusive of the discretion § 11A(2) accords.
Relying on Pelletier v. Bristol County, 8 Mass. Worker's Comp. Rep. 294, (1994), the self-insurer next asserts that a finding of complexity must be explained. Pelletier addressed the need for findings in a hearing decision. Id. Reliance on such case law is inapposite. A ruling on a motion is not a "decision" per se. In a hearing decision each determination of the issues in controversy must be accompanied by "a brief statement of the grounds for each decision." G.L.c. 152, § 11B. Moreover, a finding in a hearing decision must be supported by explanatory grounds, such that upon review we can evaluate whether the judge applied the correct legal standards in reaching his conclusions.Praetz v. Factory Mutual Eng'g. Research, 7 Mass. Workers' Comp. Rep. 45 (1993). In contrast, a ruling of complexity on a motion for additional medical evidence is just that, a ruling on a motion. Neither the statute nor the regulations explicitly require judges to set forth the grounds for a ruling on any motion including that involving a motion for additional medical evidence, which comports with general civil practice on motions. See Mass. R. Civ. P. 3 and 7. While in some instances it may be preferable or perhaps even necessary, the regulations only require that authorization of additional medical evidence be in the form of a "written finding that testimony is required due to the complexity of the medical issues involved or the inadequacy of the report of the impartial physician." 452 Code. Mass. Regs. 1.12(5)(a). The judge here fulfilled that requirement, he wrote that, in his estimation, the medical issues were complex. (Dec. 6.) Compare, Martin v. Red Star Express Lines, 9 Mass. Workers' Comp. Rep. 670, 673 (1994) (where bias of the doctor is raised findings addressing that issue must be made as impartiality is the "very corner stone" of the § 11A statute).
The judge could also rule the medical issues complex irrespective of whether the § 11A medical examiner was qualified to and in fact did address the potentially complex medical issues in controversy. Additional medical evidence may be admitted when the medical issue is complex or if the medical report is inadequate. See § 11A(2), supra. The statute sets out no other criteria; the determination of complexity alone will suffice for the allowance of additional medical evidence.
Beyond its arguments on the medical complexity issue, the self-insurer asserts that the finding of continuing causal relationship between the work injury and the employee's chest wall pain is based on outdated, stale medical opinions. (Self-insurer's Brief, 6, 7). The insurer's argument has merit.
Questions of causation and duration of medical disability are peculiarly subject to the need for expert opinion evidence and are matters "beyond the common knowledge and experience of a layman." Galloway's Case, 354 Mass. 427, 431. Of course by the very dynamic nature of injury and disease, these issues are ever changing and thus are unlikely to be subject to a decision that concludes them for all time.
The impartial medical examiner unequivocally reported:
. . . In regard to causal relationship, . . . . There is no clear and convincing objective evidence that the present symptoms are directly or causally related to the incident of January 3, 1990, at this point in mid 1994.
(Self-insurer ex. 4, emphasis added.) No other medical evidence in the record supports a contrary conclusion for the disputed period of incapacity.
A conclusion on incapacity at any particular time has to be in part based on expert medical testimony. George v. Chelsea Housing Authority, 10 Mass. Workers' Comp. Rep. 22, 25 (1996). The medical opinions from 1991-1992, on which the administrative judge relied, spoke as of their examination dates. See Id. There was no medical evidence contrary to the impartial opinion for the particular time in dispute here.
While the prima facie opinion of the impartial medical examiner may be overcome by competent evidence warranting a contrary finding, there was only lay testimony offered for the time frame in question to counter the § 11A medical opinion of no continuing causation. Though the employee could certainly attest to his continued pain, he lacked any medical explanation for its persistence. Thus, the lay testimony alone was too slim a reed to overshadow the contrary prima facie medical opinion of no continuing causation. Compare Bedugnis v. Paul McGuire Chevrolet, 9 Mass. Workers' Comp. Rep. 801, 803 (1995) (a weak medical opinion of causation may be supported to the point of sufficiency by lay testimony).
Moreover, the prior decision only adjudicated the issue of the causal connection and extent of the incapacity existing then. It provides no evidence of causal connection during the more recent period of incapacity.
Though the judge had the discretion, which was not abused, to find medical issues complex pursuant to § 11A(2), the record does not support the finding of continuing causal relation between the chronic chest wall pain and the industrial injury. Accordingly, we reverse the causation finding on the grounds that it was contrary to law, and allow the self-insurer's request for a discontinuance.
So ordered.
_________________________ Administrative Law Judge Susan Maze-Rothstein
_________________________ Administrative Law Judge William McCarthy
_________________________ Administrative Law Judge Suzanne Smith