Opinion
11-P-1129
04-04-2012
EDUARDO ABAD'S CASE.
NOTICE: Decisions issued by the Appeals Court pursuant to its rule 1:28 are primarily addressed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, rule 1:28 decisions are not circulated to the entire court and, therefore, represent only the views of the panel that decided the case. A summary decision pursuant to rule 1:28, issued after February 25, 2008, may be cited for its persuasive value but, because of the limitations noted above, not as binding precedent.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
The employee, Eduardo Abad, appeals from a decision of the reviewing board of the Department of Industrial Accidents reversing an administrative judge's decision that the employee's work-related back injury was a 'major' cause of his disabling mental illness. We affirm.
The employee injured his back at work in 2006. Pursuant to a 2008 administrative hearing decision, the insurer paid a closed period of G. L. c. 152, § 34, temporary total incapacity benefits followed by ongoing c. 152, § 35, partial incapacity benefits. In January, 2009, the employee filed the present claim for § 34 benefits alleging that his back injury caused a psychiatric disability. The claim was denied at conference, the employee sought de novo review, and an impartial physician was appointed to examine the employee.
Because the employee had a long history of mental illness, including three suicide attempts and at least one hospital commitment, any psychiatric injury caused by the back injury would be considered a combination injury subject to the heightened causation standard of G. L. c. 152, § 1(7A). That section 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 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.'As to the issue of causation, the impartial's report stated, in part:
'A major and significant part of his chronic depression and suicidality long precedes his [May, 2006] lifting accident. That said, the back pain has added to Mr. Abad's burdens. The depression probably has become harder and deeper since [May, 2006] -- in effect, the depression used the back and leg pain as loci and as additional obstacles to health and growth and good feeling, and the depression very likely has interfered with getting good treatment for the pain (which, Mr. Abad reports, has become worse since 2006, not better). It is not clear how severe the [May, 2006] back accident or strain was, but it is clear that Mr. Abad has tended to slant his history toward blaming pretty much everything on that back accident. Though it is difficult and in some ways perhaps impossible to assign percentages of blame and causality, I would say the [May, 2006] strain and subsequent back and leg problems may account for about [twenty percent] of Mr. Abad's quite serious chronic depression.'
At his deposition, in response to questions seeking to establish the question of major causation, the impartial was somewhat equivocal, testifying that his estimate of twenty percent 'sounds to me somewhat less than major,' and that the 'mental problems which were there probably got somewhat worse. I wouldn't say major worse.' Later, when asked whether he believed that the back injury could be 'one of the many major factors' causing his current psychological condition, the doctor stated, 'I am more cautious than you are about the word major. I think it is a somewhat contributory factor but much less than [the employee] himself is now claiming.'
On this evidence, the administrative judge specifically found that the doctor's causation opinion 'rises to the level of 'a major cause' and therefore is compensable.' From his order requiring the payment of § 34 benefits, the self-insurer appealed. The reviewing board reversed, holding that the administrative judge's conclusion that the employee had met his burden to show that the work injury was a major cause of his psychiatric injury was contrary to law. See G. L. c. 152, § 11C; Murphy's Case, 53 Mass. App. Ct. 708, 711 (2002) (in reviewing decision of administrative judge, reviewing board must determine whether decision is 'beyond the scope of his authority, arbitrary or capricious, or contrary to law'). While the board noted that in some circumstances, an opinion quantifying the work-related causation at twenty percent may satisfy the major cause standard, in light of the doctor's testimony and report where he specifically declined to state that it was a major cause, the employee's burden was not satisfied.
In their briefs, both parties address issues not relevant on appeal, i.e., whether the impartial's opinion was conjecture, whether mathematical percentages are an allowable means to satisfy the major cause standard, and whether the administrative judge mischaracterized the impartial's opinion. Our review is of the reviewing board's decision, not that of the administrative judge. Contrast Whitman's Case, 80 Mass. App. Ct. 348, 352 (2011) (in cases of summary affirmance of administrative judge's decision by reviewing board, reviewing court inspects findings and reasoning of administrative judge). The board did not rule that the impartial's opinion was conjecture or that use of percentages was inappropriate. To the contrary, the board viewed the impartial's specific refusal to state that the injury was a major cause -- indeed, his consistent description of the contribution by the injury to the employee's disability as less than major -- as definitive, and specifically noted that an opinion in percentage form, even of twenty percent, would be sufficient in some circumstances (presumably when accompanied by an opinion by the impartial that it was a major cause). The reviewing board simply determined that the employee failed to meet his burden of proving 'major' causation in light of the impartial's testimony. Compare Stewart's Case, 74 Mass. App. Ct. 919, 920 (2009) (expert witness need not use 'magic words' of § 1(7A); opinion expressed in terms substantially equivalent to those of statute will suffice).
The employee also argues that the administrative judge erred in not allowing his motion to open the medical record because of the complexity of the issues presented (the judge took no action on it). The employee did not raise this issue before the reviewing board. The issue is waived. See Collins's Case, 21 Mass. App. Ct. 557, 557 n.1 (1986) (failure to raise issues before board are not preserved for review by appellate court).
Decision of reviewing board affirmed.
By the Court (Cypher, Green & Trainor, JJ.),