Opinion
BOARD No. 11246-92
Filed: December 6, 1995
REVIEWING BOARD DECISION
(Judges Maze-Rothstein, Kirby and Smith)
APPEARANCES
Tanya P. Millett, Esq., for the employee
Arthur Jackson, Esq., for the insurer
The employee appeals a decision that denied her claim for temporary partial incapacity and medical benefits. G.L.c. 152, § 35, 13 and 30. She asserts error in the adoption of the § 11(A) medical examiner's opinion which failed to determine the causal relation between the employee's symptoms and the industrial accident. Finding no error, we affirm the decision.
At the time of the hearing, Barbara Hammond was a thirty-four year old employee of the Merit Rating Board, where she screened and coded traffic citations and records. (Dec. 3.)
On February 27, 1992, the employee, while entering her place of employment, fell and injured her left knee. (Dec. 9.) Prior to this accident, she had a pre-existing condition due to several non-work related knee injuries.
In 1985 the employee slipped and injured her left knee for which she underwent arthroscopic surgery in 1986 and again in 1989 to repair the fracture of her left patella. In 1987 or 1988, the employee slipped and fell injuring her neck and back for which she treated with a chiropractor. In October 1991 the employee fell and injured her right knee and underwent arthoscopic surgery in November 1992. (Dec. 5-7.)
As a result of the industrial injury, on a without prejudice basis, the employee received § 34 temporary total incapacity benefits from February 29, 1992 to April 8, 1992. She then received § 35 partial incapacity benefits from April 9, 1992 to October 1, 1992. In addition, a March 1992 conference order awarded her § 34 benefits from October 2, 1992 to December 18, 1992, and § 35 benefits from December 19, 1992 to February 15, 1993. The employee appealed the conference order to a de novo hearing, where she sought §§ 35, 13 and 30 benefits from February 16, 1993 through the present and continuing. At the hearing, the insurer challenged original liability, incapacity, and the existence of causation. The parties did not "opt out" of the § 11A medical review on this original liability claim. See 452 Code of Mass. Regs. 1.10(7). Nor does the record indicate that a motion for the allowance of additional medical evidence was advanced at any point during the proceedings. G.L.c. 152, § 11A(2).
Pursuant to G.L.c. 152, § 11A, on September 14, 1993 a statutory physician examined the employee. He opined that the employee suffered from a chronic left knee condition. However, the only causal relation he saw between this diagnosis and the industrial injury was "the possibility that the contusion of the left knee may have aggravated the preexisting left knee diagnosis. . . ." (Dec. 7-8; Insurer Ex. 2.) Further, the doctor stated that the causal connection was "marginally related, at best." (Kamel Dep. 16.) He explained that the employee's symptoms were "virtually identical" both before and after the industrial accident. (Kamel Dep. 16.) When asked if the employee's work injury was the major cause of her present disability, the examiner replied that it was a "minor" cause. (Kamel Dep. 23-24.)
The employee argues the examiner's opinion did not satisfy the § 11A(2) requirement which states the medical examiner shall determine "whether or not within a reasonable degree of medical certainty any such disability has as its major or predominant contributing cause, a personal injury arising out of and in the course of the employee's employment."
Whereas § 11(A) requires the examiner to determine the "major or predominant" contributing cause, § 1(7A) describes a compensable aggravating injury as a "major but not necessarily predominant cause." (Emphases added). Because the claim arises from a 1992 injury date, the case before us does not present any issue raised by this variation in the statutory language. Nor does the instant case call into question the fact that § 11(A) is procedural applying to all cases regardless of injury date, that involve "disputes over medical issues", while § 1(7A) is substantive.
We disagree. The examiner reported his causation opinion clearly. The judge was persuaded the doctor sufficiently responded to the issue of causation with a reasonable degree of medical certainty, when he reported that the industrial injury added at best a "marginal" contribution to the employee's disability, and further stated that it could only be characterized as a "minor" cause. Thus, the doctor's opinion met the causal standard required under § 11A(2).
Based on this medical evidence and on his evaluation of the legal standard under § 11A(2), the judge found "[t]he employee failed to establish any causal connection between her work injury of February 27, 1992 and any subsequent incapacity . . ." and that she was able to return to full-time sedentary employment. (Dec. 9.) (Emphases added).
On the one hand the judge found the employee failed to establish any causal connection to any subsequent incapacity, despite finding that an industrial injury occurred which was at least a "minor" cause "marginally related" to the incapacity. Although these findings appear inconsistent, we believe the correct result was reached. The judge's legal conclusion that there was no liability for any subsequent incapacity due to the identified industrial injury rests primarily on the undisputed medical opinion that the contested knee condition remained essentially unchanged before and after the industrial injury. Prior to the 1991 statutory amendments, this level of contribution may have more readily sufficed to support a benefits award. But subsequent to the 1991 amendments, the judge's ruling placing the employee's work injury outside of the statute is supported by the interplay between the causal standard in § 11A(2) and the amendment to the statutory definition of an industrial accident. G.L.c. 152, § 1(7A).
This is the first opportunity the board has had to comment on any aspect of this interaction. Section 1(7A), as amended in 1991, appears to qualify the long established "as is" doctrine — in original liability claims where work injuries combine with non-work related pre-existing conditions — by adding:
Conversely, § 1(7A) does not qualify, modify or even apply to compensable successive work injury situations.
"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." G.L.c. 152, § 1(7A) (as amended by St. 1990, c. 177, § 344). (Emphasis added).
Compare, Crowley's Case, 223 Mass. 288, 289 (1916) (for early discussion of "as is" doctrine).
Under § 1(7A) as amended, medical disability which results from an industrial injury superimposed on a preexisting unrelated condition is compensable only if the work injury remains at least a "major" cause of the disability. On this record, "marginal" or "minor" cannot equal "major". Therefore, given the judge's findings and the examiner's testimony, it could be concluded that the industrial injury was not a § 11A(2) major cause of the employee's incapacity, which in turn, via § 1(7A) did not surpass the definitive threshold of a legally compensable injury under the Act, although an industrial injury was found to have occurred.
We need not delve further to resolve the appeal before us, yet we anticipate cases will arise where the interaction between § 11A(2)'s causal standard and § 1(7A)'s definition of an industrial injury may not always seamlessly align. See n. 2 supra. For example, § 11A(2), deemed procedural with retroactive application, requires "where feasible that the report" has a work injury as a "major or predominant" cause of the disability. See c. 398, § 107 (for the procedural pronouncement). Compare G.L.c. 152, § 1(7A) (major but not necessarily predominant cause" requirement). This requirement does not readily square with the "as is" doctrine employees, whose pre-December 24, 1991 dates of injury convey compensability so long as the industrial incident contributed to the incapacity. See Crowley's Case, supra; see also Madden's Case, 222 Mass. 487 (1916) (discussing the definition of a personal injury as understood from c. 152's original enactment until the 1991 statutory overhaul). For such employees, the 1991, § 1(7A) definition (with a standard similar to that in § 11A(2)) can do nothing to relieve this misalignment, since it was deemed substantive with only prospective application. See c. 398, § 106 (directing substantive treatment of the new § 1(7A) definition). Ultimately, § 11A(2) merely seems to require the physician's report to comment on whether the work injury is a major or predominant cause of the disability and does not appear to change the standard for pre-enactment injury dates.
Finally, the new § 1(7A) appears to establish a certain level of medical causation ("major but not necessarily predominant"), where an industrial injury combines with a non-work related preexisting condition, to remain compensable under the Act. We expect contention and debate when a seemingly minor work-related injury combines with a pre-existing non-work related condition to cause medical disability. Conceivably, if a minor event is the proverbial "straw that breaks the camel's back" when a previously stable non-work related pre-existing condition needs only a small trigger to blossom into incapacity, then said triggering work event could arguably be the "major" cause of medical disability. In such instances, in order to determine whether that disability has "as a major cause the work-related injury", the judge will have to determine if the work injury set off an identifiable causal chain that would otherwise have remained quiescent. A further complexity is what is major today may not be tomorrow as an employee's medical condition fluctuates. See G.L.c. 152, § 1(7A) (for those injury dates to which it applies). One will observe the concurrence making these same points because when read closely, our positions regarding these prospective issues largely converge.
Moreover, we do not see that the selective passages of what can only loosely be termed "legislative history" set out in the concurrence have bearing on the foregoing discussion.
We leave these perplexities for another day and another case. For the present, we are satisfied that the outcome of the case at bar would have been no different had the judge closed the analytical loop by combining his causal appraisal under § 11A(2) with reference to the definition of an industrial injury under § 1(7A). Accordingly, the decision is affirmed.
So ordered.
_________________________ Susan Maze-Rothstein Administrative Law Judge
_________________________ Edward P. Kirby Administrative Law Judge
Filed: December 6, 1995
I agree with the majority that on this record, the administrative judge did not err in denying the employee's claim. However, the decision contains dicta regarding the meaning of § 1(7A) and its application to fact patterns not presented here which is misleading. I therefore concur in the case holding and the order, but not the dicta commencing on page 5 of the majority opinion.
The workers' compensation system has struggled with the boundary between medical problems which are sufficiently work-related to impose their costs on industry and those which are more appropriately covered by personal health insurance. The Supreme Judicial Court established rules to differentiate among them based upon the frequency and intensity of the causally-related work activity compared to other occupations. SeeAdams v. Contributory Retirement Board, 414 Mass. 360, 365-366 (1993), citing Zerofski's Case, 385 Mass. 590, 594 (1982). These rules were difficult to apply and in the eyes of the common man did not adequately differentiate between conditions caused by work and those brought to the work place and merely experienced on the job.
These rules continue to apply to cases of successive work injuries.
In response to the problem, the 1991 Legislature created a new definition of personal injuries covered by workers' compensation. St. 1991, c. 398, § 14 (amending G.L.c. 152, § 1(7A)) and § 30 (amending G.L.c. 152, § 11A). The 1991 amendment to § 1(7A) provides in pertinent part:
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 such compensable injury or disease remains a major but not necessarily predominant cause of disability or need for treatment.
This amendment fits together with the amendment to c. 152, § 11A like carefully crafted pieces of a jigsaw puzzle.
The 1991 amendment to § 11A provides in pertinent part:
The report of the impartial medical examiner shall, where feasible, contain a determination of the following: (i) whether or not a disability exists, (ii) whether or not any such disability is total or partial and permanent or temporary in nature, and (iii) whether or not within a reasonable degree of medical certainty any such disability has as its major or predominant contributing cause a personal injury arising out of and in the course of the employee's employment. Such report shall also indicate the examiner's opinion as to whether or not a medical end result has been reached and what permanent impairments or losses of function have been discovered, if any. Such impartial physician's report shall constitute prima facie evidence of the matters contained therein.
The task before us is to elucidate what this language of §§ 1(7A) and 11A means.
Reading these statutory provisions together, it is clear that the Legislature intended to have compensability in pre-existing condition cases be determined by the amount of medical change in the employee's condition caused by the work, rather than the nature of the work producing such medical change. This view is supported by legislative history of these 1991 amendments. See Appendix.
THE MEANING OF 1(7A)
We start by defining the statutory term "disability." As we said inMedley v. E.F. Hauserman, 8 Mass. Workers' Comp. Rep. 97, 99 (1993), the Committee on Occupation 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" and impairment as "anatomic or physiologic loss of function." A Physician's Primer on Workers' Compensation, Appendix 1, Glossary of Workers' Compensation Terms, at 61-62 (1992) (compare with the definition of incapacity as an inability to earn resulting from disability, L. Locke, Workmen's Compensation, § 321 (2d ed. 1981); see Atkins' Case, 302 Mass. 562, 564, 20 N.E.2d 453 (1939)). The Supreme Judicial Court made clear in Scheffler's Case, 419 Mass. 251 (1994), that the impartial physician's role is to provide medical facts and related opinions concerning the nature of the employee's medical condition and its causation, and the extent and permanency of any physical handicaps.Scheffler's Case, 419 Mass. at 256-257.
A decision on "major" cause cannot be grounded on a mere finding that the employee worked up to the date of injury but was unable to work thereafter. Those facts exist in almost every workers' compensation claim and are non-medical. The Act requires a "medical conclusion concerning the employee's condition." See Id. at 260. The "worked-before-can't-work-now" rationale does not respond to the questions which § 11A(2) asks the impartial examiner and upon which the § 1(7A) decision must be based: "Whether a disability exists" and "whether or not within a reasonable degree of medical certainty any such disability has as its major or predominant cause a personal injury arising out of and in the course of the employee's employment." G.L.c. 152, § 11A.
Under the amended G.L.c. 152, § 1(7A), the impact of work activity is no longer viewed in isolation, but in the context of the employee's entire medical condition. A mere increase in symptomology "even to the slightest degree" will not longer support compensability as it did under the former common law "as is" rule.
In analyzing a preexisting condition case under the amended § 1(7A), the administrative judge must determine what the employee's baseline medical condition was before the work events on which his claim is based occurred. The judge then must define the medical change which occurred on the date of injury. Pelletier v. Bristol County, 8 Mass. Workers' Comp. Rep. 249, 250 (1994). If the work activity played a major role in producing the medical disability found by the impartial physician (not merely in producing the aggravation or exacerbation), then the case is compensable, at least initially. If, however, work played an insignificant or minor role in causing the medical disability, then the claim is barred.
What satisfies the requirement of a "major cause" of "disability"? Work activity does not have to be more important than all other causes of the medical condition found by the impartial examiner, as then it constitutes a "predominant" cause. According to Webster's Third International Dictionary at 1363 (1981), "major" means: "greater in importance", "notable or conspicuous in effect or scope" as compared with negligible, "involving a grave risk: serious". Thus the harm caused by the work activity need not be responsible for more than 50% of the disabling medical condition but has to stand out as an important contributing cause.
Employees who bring pre-existing medical problems to the workplace will not qualify for weekly wage replacement or medical benefits if work is merely the "straw that broke the camel's back." And even if an employee initially shows a major contribution by work, in order to have those benefits continue, he must establish that the change in medical condition caused by the work activity "remains" a major factor in the inability to work and the need for medical treatment. Thus, in cases where the employee suffers from a pre-existing progressive condition such as degenerative disc disease, osteoporosis, or coronary artery disease, the relative contribution of work to the employee's ongoing disabling medical condition may diminish over time as the underlying condition worsens thereby terminating compensability.
For these reasons, I cannot agree with the dicta in the majority opinion, although I concur in the holding on the facts of this particular case.
________________________ Suzanne E.K. Smith Administrative Law Judge
Filed: ___________________
APPENDIX TO CONCURRENCE LEGISLATIVE HISTORY
Senate Bill 38, § 11 proposed an amendment to G.L.c. 152, § 11A. 1991 Senate Doc. No. 38, § 11. It provided that claims for compensation involving medical issues would be submitted to a single physician for a final determination on disability, aggravation of underlying condition, and continuing disability. Id. It appeared to limit the administrative judge's function to deciding liability issues and discontinuance complaints. The section was criticized for excluding discontinuances from its purview. Report On Proposed Legislation To The Workers' Compensation Advisory Council Meetings Relative To Senate Doc. No. 38, § 11 (March 20, and 29, 1991). House Bill 1699 also dealt with a binding impartial physician opinion. Senate Bill 64, § 11 set the criteria for impartial medical physicians and provided that the impartial physician's opinion would be final with respect to disability issues with prima facie effect on other issues. Like Senate Bill 38, § 11, it applied only to claims and not to discontinuance proceedings. It was intended to reduce litigation over disability. 1991 Sen. Doc. No. 64, § 11. The Advisory Council took a neutral position on these bills. Advisory Council Minutes (March 20 and 29, 1991).
Joseph Faherty, Chairman of the Workers' Compensation Advisory Council, testified on the pending bills before the Joint Commerce and Labor Committee on April 10, 1991. Report of Advisory Council to Joint Commerce and Labor Committee (April 10, 1991) (testimony of Joseph Faherty). He quoted from the 1912 Report on the Commission for Compensation for Industrial Accidents:
1). "The difficulty under the new law will not be so much in the determination of matters of legal liability as in the ascertainment of physical incapacity of the injured man."
2). "The successful administration of the act requires the assistance of skillful physicians and surgeons of the highest integrity."
He further commented from the 2nd Annual Report of the Industrial Accident Board:
"Malingering by the industrial workers of this state is inconsequential. . . . A regrettable fact is that in the few such cases which occur the workman is seldom alone in his attempted deception; he too is often the misguided victim of unscrupulous professional advisors or persons with abnormal desires to debase others."
By a letter dated April 10, 1991 to the House and Senate Chairs of the Commerce and Labor Committee, he reported the Advisory Council's positions on all the pending legislation. Letter from Joseph Faherty to House and Senate Chairs of the Commerce and Labor Committee (April 10, 1991).
After the Commerce and Labor Committee hearing, the Administration proposed House Bill 5609. By a letter dated May 30, 1991 to the House and Senate Chairmen of the Joint Committee on Commerce and Labor, The Associated Industries of Massachusetts criticized § 28 which contained the provision for the impartial medical examiner.
On November 5, 1991, in response to all the reform proposals, the chairpersons of the Joint Committee on Commerce and Labor proposed An Act to Streamline the Workers' Compensation System. The bill did not contain any restriction on the common law definition of personal injury. In their Workers' Compensation Reform Legislation: Goals of Commerce and Labor Committee Chairs, use of impartial physicians was listed among ways of 1) improving efficiency and accountability at the Department of Industrial Accidents; 2) encouraging return to work; 3) avoiding litigation; 4) and reducing fraud and abuse. Under the proposed bill, an impartial physician could be requested by any party or the judge, whose opinion was prima facie evidence of disability. The parties were, however, permitted to overcome the impartial physician's determination by "clear convincing evidence to the contrary." 1991 Senate Doc. No. 1741.
On November 7, 1991, one hour before the Commerce and Labor Committee was scheduled to begin debate on the Bump/Pines bill, the Governor unveiled an alternative reform package for consideration by the committee, An Act Relative To The Efficient And Equitable Compensation Of Injured Workers. After a marathon 17 hour hearing, the committee reported out its Senate Bill 1741. The Committee's bill did not restrict the definition of personal injury. 1991 Senate Doc. No. 1741. Section 42 of the committee's bill contained a clear and convincing standard for rebuttal of impartial physician opinions. Id. According to Leonard Nason, the impartial physician provisions placed the fate of the workers' compensation claimant in the hands of the impartial physician and took it away from the administrative judge. L. Nason, Initial Review of the Bump/Pines WC Bill (November 13, 1991).
In contrast to the committee's bill, § 16 of the Weld-Cellucci revised bill added an "Oregon limitation" on compensable injuries by providing that no disability is compensable unless a work-related injury or disease is the major contributing cause of the disability. It is clear that the language was intended to limit the scope of "personal injury" under c. 152. L. Nason, Summary of Weld-Cellucci Workers' Compensation Bill, at 1 (November 13, 1991). As noted in a comparison of the two bills, § 16's change in the definition of personal injury created a higher standard for defining what is compensable. In some respects it was similar to the then definition of mental injuries, where the work had to be a significant contributing cause. The language of § 16 was narrower and covered all injuries. It was expected to have an impact on occupational diseases. It was projected to contain a 2-4% cost savings.
It provided: "Section 1 of Chapter 152 of the general Laws is hereby amended by adding at the end of subsection (7A) the following new paragraph: — No disability shall be compensable under this chapter unless a work-related injury or disease is the major contributing cause of the disability. If a compensable injury or disease combines with a preexisting condition to cause or prolong disability or a need for treatment, the resultant condition shall be compensable only to the extent the compensable injury or disease is and remains the major contributing cause of disability or need for treatment." An Act Relative to the Efficient and Equitable Compensation of Injured workers (November 7, 1991) (submitted by Governor Weld for consideration by the Commerce and Labor Committee as alternative reform package).
The restrictive definition of personal injury and the manner of utilization of impartial physicians were two of the significant areas of disagreement between the committee's bill and the governor's bill. Id. at 7. The impartial provisions in § 39 of the governor's bill did not require an opinion about the comparative contributions to the medical disability of a pre-existing condition and the work event. The requirement of impartial physician evaluations at hearings involving medical issues was intended to eliminate reliance on "dueling doctors" and thereby increase efficiency and reduce litigation. Id. at 4.
On December 9, 1991, the House Committee on Ways and Means reported out House Bill 6357, An Act Relative To The Fair And Effective Compensation Of Injured Workers. Section 14 contained a limitation on the definition of personal injury. 1991 House Doc. No. 6357, § 14. Section 31 contained provisions for the impartial medical examination. The report constituted the only medical evidence unless it was inadequate or the medical issues were complex. However, it was afforded no artificial weight. The language of § 14, "predominant contributing cause," was different from that of § 31, "major contributing cause."
It provided: "Subsection 7A of said section 1 of said chapter 152, as so appearing, is hereby amended by striking out the third sentence and inserting in place thereof the following two sentences: — Personal injuries shall include occupational diseases or mental or emotional disabilities only where the predominant contributing cause of such disease or disability is an event or series of events occurring within the employment." [Note: this is similar to the court's language in Zerofski's Case, 385 Mass. 590, 595, 433 N.E.2d 869 (1982)] "If a compensable injury or disease combines with a pre-existing condition to cause or prolong disability or a need for treatment, the resultant condition shall be compensable only to the extent the compensable injury or disease is and remains the predominant contributing cause of disability or need for treatment." 1991 House Doc. No. 6357.
It provided in pertinent part: ". . . The report of the impartial medical examiner shall, where feasible, contain a determination of the following: (i) whether or not a disability exists, (ii) whether or not any such disability is total or partial and permanent or temporary in nature, and (iii) whether or not within a reasonable degree of medical certainty any such disability has as its major contributing cause a personal injury arising out of and in the course of the employee's employment. Such report shall also indicate the examiner's opinion as to whether or not a medical end result has been reached and what permanent impairments or losses of function have been discovered, if any." 1991 House Doc. No. 6357.
The Massachusetts Coalition for Occupational Health and Safety (MassCosh) criticized the language of § 14, saying that medical science was developed to a point where it could indicate "contributing cause" but not "predominant contributing cause." It argued that, as in Oregon, the provision would result in more claim denials and more litigation. Report to Support the Removal of Language in Section 14, Relative to House Doc. No. 6357, Massachusetts Coalition for Occupational Safety Health (December, 1991).
On December 10, 1991, the Committee on Ways and Means amended Senate Bill 1745 by striking its text and substituting the text of House Bill 6357, retitling it "An Act Relative To Fair And Effective Compensation Of Injured Workers." The Ways and Means Committee report on the bill indicated that costs of the workers' compensation system were out of control. Report of House Ways and Means Committee, at 1 (December 10, 1991).
With respect to the amendment to G.L.c. 152, § 1(7A), the Ways and Means Committee reported:
THE "WORK RELATEDNESS" REQUIREMENT
One difficulty many jurisdictions have had to face in recent years is the expansion of the notion of injury. The standard traditionally used to establish the "work-relatedness" of the disability has been "arising out of and in the course of employment." While workers' compensation law was originally created to handle traumatic injuries, changes in the work place, our ability to detect harm, and our notion of entitlements have dramatically changed who is receiving benefits.
The standard has not kept pace with changes in science and the workplace. The result has been that employers have been forced to compensate some employees for disabilities that have only the slightest relationship to the job.
The House Ways and Means Committee proposal addresses this issue by that where the disability results from an occupational disease or mental stress, an event or series of events must be the predominant contributing cause of the disability and not just be a minor contributant.
In addition, where the employee brought to the workplace a pre-existing condition to cause or prolong a disability, the work-related injury must be the predominant cause of this disability or need for treatment. These changes will relieve the employer/carrier community from bearing the full burden of wage loss and medical care for employees when the workplace played at most a minor role. Id. at 4.
With respect to the impartial physician, the Ways and Means Committee reported:
In those cases involving disability that still must go to a full hearing, the House Ways and Means proposal requires the use of a single expert physician-either agreed upon by the parties or chosen by the Department. The report of this expert would be admissible and both parties would have the right to cross-examine. Additional medical testimony would be allowed only where the judge finds it is truly needed. The use of impartial doctors is thought by a number of workers' compensation authorities to be the single most important method of reducing litigation. The use of a single, impartial physician should make hearings faster, more reliable, and less likely to occur at all. Id. at 5.
After the Ways and Means Committee issued its report, the Journal of the House debated Senate 1745 as amended. The word "occupational" was stricken from the definition of personal injury in § 14 line 4. Journal of the House, at 1418 (December 11, 1991). A motion to delete § 14 was defeated. Id. at 1442. (December 11, 1991). The word "predominant" was substituted for the word "major" in § 31 line 37 regarding the contents of the impartial physician's report. Id. at 1419. With these changes, the bill was passed to be engrossed and sent to the Senate for concurrence in the amendments. Id. at 1447.
In this bill, House 6377, the amended definition of personal injury remained in § 14 but the impartial physicians provisions became § 30.
The Senate did not agree with the House changes. Because the House insisted on its version, a conference committee was established to resolve the differences between House 6377 (the House Ways and Means Bill as amended) and Senate 1745 (the Administration Bill with one amendment as enacted by the Senate). Id. at 1471-1472. With respect to the changed definition of personal injury in § 14, both versions significantly limited coverage in cases where a pre-existing condition was aggravated by work activity. Advisory Council Minutes (December 18, 1991) (Day, Initial Comments and Advisory Council Initial Analysis of Acts of 1991, at 153 (December 18, 1991). The impact of this change on rates was uncertain as it depended on implementation and judicial interpretation. Advisory Council Minutes, at 3 (December 18, 1991).
The final version of the amendment to § 1(7A), enacted as c. 398, § 14 merged the language of the two competing bills to restrict compensability in cases of aggravation of a non-work-related prior condition. The work contribution had to be "a major but not necessarily predominant cause of disability or need for treatment". The impartial physician was to opine on this issue and his opinion was to have prima facie weight. G.L.c. 152, § 11A.