Opinion
BOARD NO. 02197694
Filed: October 19, 1998
REVIEWING BOARD DECISION (Judges McCarthy, Wilson and Smith)
Frank Hovey began working for Shaw Industries as a material handler and truck driver in August 1992. On June 10, 1994, he was carrying a 75-pound roll of carpet padding across a loading dock when a dock plate slipped, causing him to twist his back and neck and to be struck in the head with the carpet padding. He experienced immediate pain in his upper back, and later, numbness in his left hand, as well as pain in his neck and left arm. Halfway through his shift, he went to the hospital. He began treating with an orthopedic surgeon, and eventually a neurosurgeon. After being out of work for approximately two months, with cervical muscle strain and complaints of headaches, he attempted to return to light duty. However, after approximately two months, he left work again. On February 28, 1995, Mr. Hovey had extensive surgery in which a metal plate was inserted at the C3-6 area. The employee had some improvement, but by April of 1995, he was again experiencing numbness in his upper extremities and headaches, symptoms which persisted at the time of the hearing.
The insurer accepted liability for Mr. Hovey's injury, and paid several closed periods of weekly total and partial incapacity benefits up to April 30, 1996. The employee filed a claim for further benefits, and, following a conference on May 20, 1996, an administrative judge awarded ongoing § 34 temporary total incapacity benefits beginning on April 30, 1996. The insurer asserted its right to a hearing de novo, which was held on January 9, 1997. At the hearing, the employee and a vocational rehabilitation expert testified. The report and the deposition of the impartial examiner, Dr. Vincent Genovese, was entered into evidence.
In his hearing decision, the judge found that the employee had been totally incapacitated since June 10, 1994 (the date of injury), except for the periods of time he was able to return to work in a light duty status. He found that the insurer's payments had been appropriate, and awarded the employee ongoing weekly temporary total incapacity benefits starting on April 30, 1996. In reaching this decision, the judge said he assigned little probative value to the testimony of the vocational expert because the employee could not perform the jobs the expert suggested due to his restrictions and complaints, particularly with respect to ongoing headaches and numbness in his arms. (Dec. 10.)
The insurer appeals, alleging, in essence, that the judge based his finding of causal relationship, and ultimately incapacity, on a mischaracterization of the medical evidence. The insurer argues that the medical evidence did not causally relate the employee's continuing headaches, one of his primary complaints, to his injury at work. We agree, and for this reason, reverse the decision and recommit the case for a hearing de novo.
A finding of causal relationship must be based on expert medical testimony because it is a matter beyond the common experience of the layman. Ata v. KGR, Inc., 10 Mass. Workers' Comp. Rep. 56, 57 (1996), citing Casey's Case, 348 Mass. 572, 574-575 (1965). While a judge is free to adopt all, part, or none of an expert's opinion, he may not mischaracterize it. Yates v. ASCAP, 11 Mass. Workers' Comp. Rep. 447, 452 (1997); Ata v. KGR, Inc., supra at 57; Turcotte v.Westinghouse Elec. Corp., 9 Mass. Workers' Comp. Rep. 300, 303 (1995). When a judge mischaracterizes an expert's opinion on the pivotal issue of causal relationship, the decision is arbitrary and capricious and cannot stand. Ata v.KGR, Inc., supra at 57; Wall v.Lepages, 11 Mass. Workers' Comp. Rep. 359, 361-362 (1997).
Here, the impartial physician in his report listed the employee's medical problems as depression, numbness, pain in his arm, leg and foot and headaches. (Genovese Rep., 3.) However, nowhere in the report or deposition did he causally relate the headaches to the employee's injury at work. In his report, Dr. Genovese merely stated that, "[I]t would appear that the onset of his symptoms related to his neck and shoulder were precipitated by the reported accident at work." (Genovese Rep., 5.) Addressing the question of whether the headaches were related to the industrial accident at his deposition, Dr. Genovese stated:
The headaches . . . I would remove from that because . . . [i]f they were cervical-based and his neck is now fused . . . one would assume, with a solid fusion, if they were referred from his neck, that if the fusion is good, that that problem should go away. He was knocked out, you know. So, I would defer that to a neurologist, if there's some other condition responsible for his persistent headaches. But, as an orthopedist, I couldn't — I wouldn't attribute them, any longer, to his neck.
And again:
. . . [I] think it would be hard for me to now say that, with a reasonable degree of medical certainty, that he's still having headaches, and yet, we have a solid fusion and the headaches are coming from that level; I think he must have another problem that's not related to his neck.
(Dep. 34.) Thus, the impartial report does not support a finding of causal relationship between the work injury and the employee's headaches.
In his decision, however, the judge relied heavily on the employee's complaints of disabling headaches in determining that he was totally incapacitated. The judge noted that Mr. Hovey's "headaches are almost daily and are quite severe, lasting up to three days." (Dec. 5.) At the time of the hearing, he found, "the employee was complaining about a headache which had lasted for approximately four days. The headache makes his vision blurry and pain is such that 'he just wants to be left alone'. . . . He denies the capacity for any type of work because of his constant headache and the effects of the medication on his alertness." (Dec. 6.) The judge rejected the vocational expert's opinion because she "did not consider the restrictions outlined by the employee in his testimony, i.e., headaches and manual limitations due to pain." (Dec. 7.)
In discussing causal relationship, the judge initially accurately reported Dr. Genovese's opinion that "the onset of the symptoms related to the employee's neck and shoulder was precipitated by the reported accident at work." (Dec. 8.) However, in a further discussion of causal relationship, the judge did not separate out the employee's headaches from his other symptoms, but rather lumped all his symptoms together:
The review of the transcript makes it clear that the examiner is of the opinion that because of the fact that the employee was asymptomatic prior to June 10, 1994, in spite of the fact that he had a severe underlying disc pathology, that the incident at work precipitated his subsequent disability and complaints. Nevertheless, while the doctor is somewhat reluctant to make the statement relative to causal relationship, his testimony makes it clear that the absence of any symptoms prior to the industrial incident results in the determination that the employee's subsequent complaints are causally related to the initial incident.
(Dec. 9.)
As noted above, the conclusion that all the employee's symptoms, including his headaches, are causally related to the work injury, is not supported by the medical evidence, consisting solely of Dr. Genovese's report and deposition testimony. In fact, this finding is clearly contradicted by Dr. Genovese's testimony that he cannot causally relate the headaches. As the judge's finding regarding causal relationship is not supported by the evidence, the judge's rejection of the vocational expert's opinion, in part because she did not consider the impact of the employee's headaches on his ability to work, is also invalid.
We note another significant error in the causal relationship analysis, which was not argued by the parties. The impartial examiner opined, and the judge found, that the employee "suffered from a cervical strain superimposed upon pre-exiting (sic) degenerative disc disease at C4-5 and C5-6." (Dec. 8.) Where there is a non-compensable pre-existing condition, the judge must determine whether the compensable injury remains a major, but not necessarily predominant cause of disability or need for treatment, as required by § 1(7A). See Robles v. Riverside Mgmt., Inc., 10 Mass. Workers' Comp. Rep. 191 (1996). Here, though the parties asked the impartial examiner whether the employee's work injury was the major, but not necessarily predominant, cause of his ongoing disability, (Dep. 26, 27, 30), he never gave a clear answer to this question. (Dep. 26-33.)
General Laws c. 152, § 1(7A) (St. 1991, c. 398, section 14), applicable to injuries sustained on or after December 23, 1991, provides:
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 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.
Dr. Genovese did state that the work injury was the major cause of the need for the surgery the employee had on February 28, 1995. (Dep. 12-13.)
We therefore reverse this decision and, because the judge who held the hearing no longer serves the department, return the case to the senior judge for reassignment to another administrative judge for a hearing de novo.
So ordered.
_____________________ William A. McCarthy Administrative Law Judge
_____________________ Sara Holmes Wilson Administrative Law Judge
_____________________ Suzanne E.K. Smith Administrative Law Judge
DATED: October 19, 1998