Opinion
Board No. 02855187
Filed: June 27, 1996
REVIEWING BOARD DECISION
(Judges Fischel, McCarthy and Wilson)
APPEARANCES
Stephen J. Durkin, Esq. for the employee
Gerald T. MacCurtain, Esq. for the insurer
By a decision filed March 24, 1994, an administrative judge granted the insurer's complaint requesting a modification or discontinuance of weekly benefits retroactive to June 7, 1993. The insurer was also authorized to recoup weekly payments made between June 7, 1993 and the filing of the judge's decision some nine months later. We have the case on appeal by the employee.
An impartial medical examination under the provisions of G.L.c. 152, § 11A was performed on June 7, 1993.
The following facts found by the administrative judge are pertinent. David Iandosca, who was then thirty-three years of age, lived in Everett with his wife and three minor children. The employee had worked as an electrician since he was fourteen years of age. On May 7, 1986 while working in that capacity, Mr. Iandosca suffered a back injury arising out of and in the course of his employment. Afterward, a small right posterior chest wall lump expanded to the size of a grapefruit. Found to be cancerous, the lump was surgically removed at Brigham and Women's Hospital. The surgery required the removal of several ribs and a portion of the right lung. There was also dissection of a substantial amount of muscle tissue.
According to the insurer's brief, Mr. Iandosca is now deceased.
In January 1987, Mr. Iandosca started work for Rotman Electric Company, the employer in the case at hand. Working as an electrician, the employee did all the duties he had done previously including installation of lights and fixtures, wiring, installing outlets and laying pipes. Although weakened from surgery Mr. Iandosca was able to work to the satisfaction of his employer. (Dec. 3.)
On April 17, 1987 while pulling a cable called a "snake" through a pipe the employee experienced severe back pain in the area of his surgical incision. (Dec. 3) He was rushed to Brigham and Women's Hospital where he was treated and released. Id. Mr. Iandosca never again returned to work. Id.
According to the procedural history set out in the judge's decision, Liberty Mutual initially accepted the case as compensable and paid temporary total incapacity benefits under § 34 of the Act from April 17, 1987 through March 10, 1992. Thereafter partial incapacity benefits under § 35 were paid from March 11, 1992 and continuing. On March 29, 1993 a conference order was issued denying the insurer's complaint to terminate or modify weekly benefits. It was the insurer's appeal of that denial which brought the case back to an administrative judge for hearing de novo and it is from the decision filed after the hearing that we have the case on the employee's appeal.
At the hearing the parties stipulated to an industrial injury on April 17, 1987. It was further agreed that the employee's average weekly wage at the time of the injury was $800.00 per week.
The only medical testimony before the hearing judge was the § 11A impartial medical report of Doctor H. Emerson Thomas, Jr. The judge did not grant the employee's motion to submit additional medical evidence, however the parties exercised their right to depose the impartial medical examiner and the deposition is part of the record before us.
Given the date of the injury in the case the employer and insurer took the employee in whatever state of health he was in during the period of employment. That is to say, the employer took Mr. Iandosca "as is". When Mr. Iandosca began work he was recuperating from surgical excision of an invasive sarcoma of the chest wall. The accepted industrial injury of April 17, 1987 caused severe back pain at the surgical site. (Dec. 3) By the time of the August 1993 hearing, the employee had not improved substantially and was using pain medication on a regular basis. (Dec. 4.) In seeking to discontinue weekly benefits the insurer contended that the employee's pain some six years after the April 17, 1987 accepted industrial injury was attributable to the pre-existing cancer surgery and not to the industrial injury. The employee attributed his present pain to the combined effects of the work injury and the pre-existing condition. Since the employer and insurer took Mr. Iandosca "as is", if his pre-existing condition was aggravated to the point of disablement, it is as much a personal injury as if the work had been the sole cause of his incapacity. Brightman's Case, 220 Mass. 17, 20 (1914).
On appeal the employee argues that the judge's decision was arbitrary and capricious because it fails to adopt the ultimate opinion of the § 11A physician. We turn to the judge's analysis of the medical opinion found in the decision. Identifying the central issue in the case as whether the employee's present medical disability is causally related to the April 1987 work incident, the judge set out a portion of Doctor Thomas's June 21, 1993 report. However, on the first day of his deposition, Doctor Thomas abandoned the opinion set forth by the fact finder. On the second day of deposition the same issue was again reviewed with Doctor Thomas. The very last question put to the deponent was this:
The judge set forth the following quotation from Dr. Thomas's June 21, 1993 report:
"The persisting pain that he experiences, especially since the work related event of April 1987, is a direct result of his original medical problem and surgery and although aggravated by the activities of his job are not primarily the result thereof. The pain which he experienced while pulling a cable could only be attributed to a soft tissue trauma which would certainly not account for persisting pain six years later. The nature of his original surgery for the sarcoma, however, would adequately explain the pain syndrome by virtue of several possible mechanisms including neuropathic and fibroscarring over an extensive portion of his chest wall limiting expansion of the thorax."
When asked on the first day of his deposition about the relationship between the April 1987 work injury and the employee's current condition, Doctor Thomas responded as follows:
A. The pain certainly is related ultimately back to his original surgery. The acuteness of the pain was associated with the particular activity of the pulling of the snake on that particular day when it became more marked. And I think that there is no question that there's a relationship between the pain that he was experiencing and the disability from being able to perform work of that nature subsequently. (Dep. Sept. 1, 1993 p. 10.)
The Doctor was then asked this question:
Q. Given the assumptions that I just presented, would it be fair to say that his current level of pain and disability was at least contributed to by that incident in April of 1987, even if it were not the predominant cause of hisA. Oh, yes. (Dep. Sept. 1, 1993 p. 10.)
On the second day of deposition Doctor Thomas testified:
This is a continuum. This gentlemen had a chest wall sarcoma requiring surgery. The surgery was rather extensive, involving muscles, bone and nerve tissue, leaving him with some residual pain. He went to return to work, and in the course of activities related to his work, he experienced additional pain.
I don't know where to draw the line as to what caused what, but he started with a tumor he had surgery, and he had physical activity that led to pain, period. (Dep. Sept. 16, 1993, p. 7, 8.)
Q. Do you recall answering on September 1st that in your opinion the April 17, 1987 incident was indeed a significant contributing cause, although not the primary cause, of Mr. Iandosca's current disability?
A. I remember that, and that would still be my impression. (Dep. Sept. 16, 1993 p. 19.)
The opinion of a medical expert which must be taken as evidence is his final conclusion. Perangelo's Case, 277 Mass. 59, 64 (1931);Turcotte v. Westinghouse Electric Corp., 9 Mass. Workers' Comp. Rep. 300, 304 (1995). After commenting on the expert's change of opinion the hearing judge reached the following conclusion, which incorporates an incorrect legal standard:
Taking his testimony and report as a whole, however, Doctor Thomas clearly believes that the disability he found in June, 1993 was caused primarily (emphasis ours) by the surgery which the employee underwent in 1986. The surgery was quite invasive, and resulted in permanent damage to the nerve and muscle tissues in the employee's chest which explains the pain the employee still experiences when breathing. Although he concedes that the acute trauma which the employee suffered in 1987 contributed to the discomfort he subsequently experienced, he is unable to provide any explanation for how such an injury could cause continuing pain and disability six years later.
The use of the word primarily is significant. Given the date of injury Mr. Iandosca had only to prove a causally related disabling increase in his symptoms. It was not necessary to show a change in the underlying pathology. Long's Case, 337 Mass. 517, 521 (1958). See Bourassa v. D.J. Reardon Co., 9 Mass. Workers' Comp. Rep. ___ (March 19, 1996) where the "as is" doctrine is discussed in some detail.
Therefore, while I recognize that the doctor at one point in his testimony agreed with the characterization "significant contributing cause" which is in some sense a term of art, his findings and opinions do not provide an adequate basis for finding a causal relationship between the employee's present disability and the 1987 work injury.
It would not be necessary to establish that the work injury was a significant contributing cause.
The legal standards of "primary" cause and "significant contributing cause" have no bearing on an "as is" case. We think the judge erred when he held that Doctor Thomas's "findings and opinions do not provide an adequate basis for finding a causal relationship between the employee's present disability and the 1987 work injury." (Dec. 6.) The judge's finding that the employee's medical disability is a result of the invasive surgery in 1986 uncontributed to by the 1987 work injury, given Doctor Thomas's final, unequivocal opinion that the work injury contributed to the level of pain, is unsupported by the record before us.
Under the terms of § 11A, the impartial medical examiner's report — and by extension his depositional testimony — have prima facie impact. Prima facie evidence, in the absence of contradictory evidence, requires a finding that the evidence is true.Anderson's Case, 373 Mass. 813 (1977); Cook v. Farm Service Stores. Inc., 301 Mass. 564, 566-567, 569 (1938). Because the impartial examiner's opinion has prima facia weight we conclude as a matter of law that the only possible finding here is that the April 17, 1986 injury acted upon the employee's pre-existing disease and contributed to his medical disability.
The employee has also raised issues with respect to the constitutionality of § 11A. We reserve the employee's right to raise this issue in the appropriate forum. We return this case to the senior judge with the request that he reassign it to the hearing judge for findings with respect to extent of causally related incapacity from the date of discontinuance and thereafter.
So ordered.
________________________ Carolynn N. Fischel Administrative Law Judge
________________________ William A. McCarthy Administrative Law Judge
________________________ Sara Holmes Wilson Administrative Law Judge
Filed: June 27, 1996