Opinion
No. 15–P–1189.
10-06-2016
Adrian ALEMAN'S CASE.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
Adrian Aleman, the employee, appeals from a decision by the reviewing board of the Department of Industrial Accidents (board) reversing the decision of an administrative judge (AJ) that granted him G.L. c. 152, § 34, disability benefits. Aleman argues that the board erred in finding that his preexisting condition was noncompensable, and in finding that the present claimed injury, combined with his preexisting condition, is not a major cause of his current disability. We affirm.
Background. Aleman worked for the city of Boston as a parking meter attendant supervisor. He had suffered earlier, non-work-related injuries to his back, as a result of two separate car accidents, one in 1996 and another in 2006. Aleman suffered a work-related injury in 2008, after tripping and falling on uneven concrete, twisting his right foot and ankle. Due to this injury, Aleman was disabled for a relatively brief period and received benefits pursuant to G.L. c. 152, § 34 (§ 34 benefits). He returned, initially, to work part-time and on limited duty, and then to full-time duty in October, 2009. In November, 2009, Aleman began receiving treatment for back pain; as a result, he was out of work from November, 2009, until February, 2010, when he was released by his doctor to resume work without restrictions. On July 25, 2012, Aleman suffered another work-related injury, when he stepped into a pothole; he complained at that time that this injury to his lower leg aggravated his preexisting back condition. In August, 2012, Aleman's treating physician, Dr. David Kim, opined that “in all likelihood [the employee] has aggravated the one or a combination of the L1–2 and the L5–S1 disks.”
Aleman did not receive § 34 benefits during this period, but, in March, 2010, he reached an agreement with the self-insurer, receiving “retroactive § 34 benefits on a ‘without prejudice’ basis from November 12, 2009 to February 2, 2010, for alleged injuries to his right ankle and low back.”
At the hearing before the AJ on January 28, 2013, reports containing the separate opinions of three experts were admitted. Dr. Suzanne Miller, who examined Aleman on behalf of the self-insurer, opined that the 2012 injury was an aggravation of a preexisting condition; the AJ adopted Dr. Miller's opinion that Aleman had sustained an aggravation of his previous condition, but rejected the portion of her opinion stating that Aleman was capable of returning to full-time work. Dr. Joseph Abate, the impartial medical examiner (pursuant to c. 152, § 11A[2] ), opined that Aleman had sustained a “traumatic aggravation of underlying lumbar disc derangement, directly causing total disability since that time.” He concluded that Aleman was totally disabled and that he had not reached maximum medical improvement. The AJ adopted Dr. Abate's opinion in full. Dr. David Kim opined that Aleman's “ongoing back pain as well as the radiating pain into the hip, groin, and scrotal region can be directly attributed to the work-related injury he suffered on July 25, 2012”; the AJ also adopted Dr. Kim's opinion.
On November 25, 2014, the AJ issued his decision, finding that Aleman had not met his burden to show that the “back symptoms and treatment that he received from October 26, 2009, through February 1, 2010, arose out of and in the course of his employment” ; the judge found, “[t]here is no persuasive medical opinion that causally relates these complaints to the injury of October, 2008. Even Dr. Bluman reported only a temporal relationship.” The AJ did find, however, that, considering the experts' opinions separately and in combination, Aleman had presented sufficient evidence to meet his burden of proof under G.L. c. 152, § 1(7A), that is, that the July 25, 2012, injury was a major cause of his present disability. As a result, Aleman was awarded § 34 benefits, benefits for future medical treatment, and attorney's fees. Both Aleman and the self-insurer appealed to the board.
The AJ did not credit Aleman's testimony that he suffered back pain following the 2008 injury.
Medical records were submitted from St. Elizabeth's Hospital for the period between October 24, 2008, to July 29, 2009; none of those records contain any reference to a complaint by Aleman to his doctors of back pain or injury while being treated for the 2008 injury during the period October, 2008, through July, 2009. Also submitted were medical records from Brigham and Women's Hospital, where Aleman received back treatment from Dr. Eric Bluman during the period October 6, 2009, through February 1, 2010.
Section 1(7A) provides, in 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.” G.L. c. 152, § 1(7A), as amended by St.1991, c. 398, § 14.
On review, the board agreed with the self-insurer that the medical evidence supporting the AJ's decision was insufficient to meet Aleman's burden of proof pursuant to § 1(7A). The board concluded that the expert medical evidence established only that an aggravation of the preexisting condition had occurred, and that even Dr. Kim's determination directly attributing Aleman's ongoing pain to the 2012 injury was insufficient for § 1(7A) purposes, as it failed to address “ ‘the relative degree to which compensable and noncompensable causes ha[d] brought about the employee's disability.’ Stewart's Case, [74 Mass.App.Ct. 919,] 920 [2009].” Relying on Castillo v. Cavicchio Greenhouses, Inc., 66 Mass.App.Ct. 218, 219–221 (2006), the board determined that “[a]lthough the adopted evidence of aggravation satisfies the ‘combination injury prong of § 1(7A), it does not support a finding that the compensable injury remains a major cause of the employee's disability or need for treatment.” On that basis, the board vacated the AJ's award of § 34 disability benefits resulting from a combination of his preexisting back injury and the July 25, 2012, work-related injury, and dismissed Aleman's appeal.
Aleman argued on appeal that the AJ erred in not finding that his back injury was a result of his October, 2008, compensable injury, and in not considering all treatment records. However, he conceded that it was the province of the AJ to determine credibility of the testimony and evidence produced.
Discussion. Preexisting condition. Aleman argues here that the AJ erred in finding that he had failed to prove that his 2008 work-related ankle injury also included an injury to his lower back. He contends that the AJ failed to consider “numerous medical records” submitted describing low back and buttock pain after that injury. This argument fails.
“Findings of fact, assessments of credibility, and determinations of the weight to be given the evidence are the exclusive function of the administrative judge.” Pilon's Case, 69 Mass.App.Ct. 167, 169 (2007). “We will not disturb the judge's findings that are ‘reasonably deduced from the evidence and the rational inferences of which it was susceptible.’ “ Ibid. (quotation omitted). Here, the AJ stated in finding number seven that Aleman's testimony that his “ ‘ankle hurt and then [he] felt sharp pain up through [his] leg, [his] calf up to [his] back’ was not supported by the hospital record.” Finding number eight states that there was no mention of back pain in the medical records of Drs. Chase and Soslow, who both treated Aleman during the period immediately following the ankle injury in October, 2008, through July, 2009; as a result, the AJ did not credit Aleman's testimony. For this reason, the AJ was warranted in determining that Aleman's claimed back injury was not a result of the October, 2008, work-related injury and, thus, should be considered a noncompensable preexisting condition.
2012 injury. A closer issue is Aleman's claim that the AJ's determination that he had met the heightened standard of § 1(7A), showing that his preexisting condition was a “major cause” of his disability, had a sufficient basis in the evidence. In his view, the board's decision to reverse the AJ's award of § 34 benefits should be vacated. The self-insurer argues that the medical evidence is unanimous, in that the opinion of each expert clearly states that Aleman suffered a traumatic aggravation of his preexisting condition; however, the self-insurer continues, that showing is insufficient to meet Aleman's burden under § 1(7A) to show that the July, 2012, injury is a major cause for this current disability.
“General Laws c. 152, § 1(7A), imposes a heightened proof of causation on an employee who claims benefits in a situation where the claimed injury may be owing to a resultant condition arising from a combination of injuries, the claimed compensable injury and a prior noncompensable injury. In those instances where the statute applies, as part of his proof of causation the employee must prove that the ‘compensable injury or disease remains a major but not necessarily predominant cause of disability or need for treatment.’ G.L. c. 152, § 1(7A).” MacDonald's Case, 73 Mass.App.Ct. 657, 659 (2009). As noted, each of the three expert opinions adopted by the AJ stated that Aleman suffered an “aggravation” of his underlying back injury; Dr. Kim's opinion went so far as to state that Aleman's disability was “directly attributed to the work-related injury he suffered on July 25, 2012.” However, none of those opinions is sufficient to meet the heightened standard of § 1(7A) as explained in the cases.
The flaw in the AJ's analysis is that, although the experts agreed that Aleman was disabled, nowhere in their respective reports did they opine as to the significance of the incident-related causes of his disability as compared with his preexisting condition. “The problem is not that [the experts] never used the ‘magic words' of G.L. c. 152, § 1(7A) ; an opinion expressed in terms substantially equivalent to those of the statute will support the requisite finding. The problem is that the determination of causation in a combination injury case, as in any case involving a complicated medical issue, must be grounded in competent expert medical evidence that satisfies the applicable standard. Accordingly, a finding of heightened causation under § 1(7A) must be supported by medical opinion that addresses—in meaningful terms, if not the statutory language itself—the relative degree to which compensable and noncompensable causes have brought about the employee's disability.” Stewart's Case, 74 Mass.App.Ct. at 920 (citations omitted). “It was incumbent upon the employee to establish that the new injury was a major cause of his disability. Despite being given an opportunity to establish the nexus, there was a failure of proof.” Castillo, 66 Mass.App.Ct. at 220–221. As a result, we affirm the decision of the board dated June 23, 2015, reversing the award of § 34 disability benefits from January 23, 2013, and continuing.