Opinion
BOARD No. 09694285
Filed: January 28, 1997
REVIEWING BOARD DECISION
(Judges Wilson, Fischel and Kirby)
APPEARANCES
Richard P. Howe, Esq., for the employee.
Jean M. Shea, Esq., for the insurer.
The employee appeals from a decision of an administrative judge, who denied and dismissed his claim for medical benefits under § 30. For the reasons discussed infra, we affirm the decision.
The employee injured his back at work in 1985. The injury was accepted by the insurer, which paid § 34 weekly incapacity benefits and medical benefits that included surgeries in 1986 and 1987. (Dec. 3, 6.) In February 1988, the employee experienced a non-work-related aggravation of his lower back condition, when he fell while getting out of a car in a Purity Supreme parking lot. (Dec. 6.) The employee visited his orthopedic surgeon four times in the several months following that occurrence, which visits were not billed to the workers' compensation insurer. (Dec. 5; Ins. Ex. C.) The employee continued to receive weekly payments for total, temporary incapacity throughout this period, until such benefits were exhausted in December 1991, whereupon he returned to work the same month as a stockbroker. (Dec. 3, 7.) These payments are, of course, not at issue.
The employee underwent another surgery on his lower back on October 12, 1990, after he suffered a recurrence of severe pain while putting on his socks, two days earlier. (Dec. 7.) The employee was transported to an emergency room via ambulance at that time, and later to the Lahey Clinic, where the surgery was performed. (Dec. 7.) Although the workers' compensation insurer paid for the surgery and that payment properly is not at issue, the bills for the ambulance services were not paid. Those bills are part of the instant claim. (Dec. 7.) At issue as well in this case are bills for both psychiatric treatment in 1990-1991 and chiropractic care for approximately six months in 1992. (Dec. 7, 8.) The insurer denied payment for all these medical services on the grounds that the employee's 1988 slip and fall in the Purity Supreme parking lot was a superceding event, cutting off all liability for the 1985 work related injury. (Dec. 3; August 19, 1993 Tr. 4, 27.)
The administrative judge found there was insufficient evidence to support the insurer's alternative assertion that employee's claim was fraudulent. This issue is not before us on appeal.
At hearing the insurer introduced as its Exhibits B and C the deposition and interrogatory answers of the employee in his civil action against Purity Supreme, which the employee settled for $13,500.00 in 1993. (Dec. 2, 11.) The employee did not object to the introduction of these exhibits. (September 28, 1993 Tr. 46-47). The employee had testified in that action that his pain, as of his October 3, 1991 deposition, was still worse than it had been before the 1988 slip and fall. (Kashian Dep., Ins. Ex. B, 42.) The employee also stated in answers to interrogatories that he received psychiatric evaluations as a result of the injuries he received in the 1988 slip and fall and his chronic pain since the 1985 industrial injury. (Ans. to Int. #4, Ins. Ex. C.) The insurer placed in evidence the deposition of its expert medical witness, Dr. James E. O'Neil, who opined that the employee's increased pain after the slip and fall in 1988 was related to that event, and not to the 1985 industrial injury. (Dec. 9.)
The judge adopted the opinion of the insurer's medical expert, Dr. O'Neil, and specifically rejected the opinions offered by the employee's experts, Drs. Scalafani, Fager and Tahan. (Dec. 9.) The judge found, as a result, "that the employee has failed to show that, more probably than not, his physical or psychological condition after [the February 1988 slip and] fall was causally related to his 1985 industrial injury." (Dec. 9.) The judge did not credit the employee's testimony at hearing that his condition returned to its pre-slip and fall level three to four months after the 1988 incident. The judge contrasted that testimony with the employee's earlier deposition testimony that, as of October 1991, his medical condition had not returned to its pre-slip and fall status, as further basis for denial and dismissal of the employee's claim for § 30 benefits for medical treatment and ambulance bills from 1990-1992. (Dec. 8, 11.)
The judge's analysis of whether the medical bills in controversy were compensable under § 30 was appropriately focused on the medical and lay evidence of causal connection between the 1985 industrial injury and the treatment expenses incurred after the 1988 slip and fall aggravation injury. Arthur Larson has written on this difficult area of inquiry in his treatise, The Law of Workmen's Compensation:
[O]nce the work-connected character of any injury, such as a back injury, has been established, the subsequent progression of that condition remains compensable so long as the worsening is not shown to have been produced by an independent nonindustrial cause. . . . [For example, a] claimant had suffered a compensable accident in 1966, injuring claimant's back. Several years later, this condition was triggered by a sneeze into a disc herniation, for which claimant required surgery. [The judge's] finding that the sneezing episode was the independent cause of claimant's disability, and the resultant denial of compensation, were held to be error, and benefits were awarded on appeal. This result is clearly correct. The presence of the sneezing incident should not obscure the true nature of the case, which is nothing more than that of a further medical complication flowing from a compensable injury. If the herniation had occurred while claimant was asleep in bed, its characterization as a mere sequel to the compensable injury would have seemed obvious. The case should be no different if the triggering event is some nonemployment exertion like raising a window or hanging up a suit, so long as it is clear that the real operative factor is the progression of the compensable injury, associated with an exertion that in itself would not be unreasonable in the circumstances. A different question is presented, of course, when the triggering activity is itself rash in the light of the claimant's knowledge of his or her condition.
The issue in all of these cases is exclusively the medical issue of causal connection between the primary injury and the subsequent medical complications. By the same token. denials of compensation in this category have invariably been the result of a conclusion that the requisite medical causal connection did not exist.
1 A. Larson, § 13.11 (a), pp. 3-609, 3-619, 3-621, 3-623 (1996) (emphasis added; footnotes omitted). The judge determined that the employee's post-1988 slip and fall medical condition was causally related to that 1988 accident, which he found a "superceding cause," and not to the prior industrial injury. (Dec. 8.) On the record before us, we cannot say that this conclusion is error. The judge's findings are not at variance with Larson's explanation that, when the triggering event is a non-work activity, a compensable claim should have as its "real operative factor . . . the progression of the compensable injury[.]" Id. The essence of the analysis is whether there remains a causal connection between the earlier compensable work injury and the later medical complications. The judge found none, and based his conclusion on causation on the medical evidence that he adopted: "I adopt the opinion of Dr. James O'Neil, a board certified surgeon who examined [the employee] on three occasions for the insurer, that [the employee's] symptoms after his February 1988 slip and fall were attributable to the slip and fall and not his 1985 injury." Dr. O'Neil's testimony, while not a model of clarity, supports the judge's finding:
Because there is no threshold finding of causal relationship to the 1985 work injury, we see no need for the fact finder to inquire whether the employee's non-work activity — the triggering event — was reasonable and normal and not performed negligently. Compare Twomey v. Greater Lawrence Visiting Nurse Assoc., 5 Mass. Worker's Comp. 156, 158-159 (1991) (insurer is liable for compensation where fact-finder concludes the physical condition precipitated by a non-work activity is causally related to the original work injury, and the non-work activity was a normal and reasonable one and not performed negligently; Doten v. Barletta Company, 10 Mass. Worker's comp. Rep. ___ (May 7, 1996) (remand for a determination of whether present incapacity is causally related to the original work injury and whether the precipitating non-industrial yard work was normal and reasonable activity and not performed negligently, thus preserving the causal chain).
Q: Would you have an opinion whether or not that aggravation that the further symptoms in his back were causally related to that slip and fall or whether or not they were, his symptoms post slip and fall, were related to his 1985 incident?
. . . [No response] . . .
Q: Whether or not the symptoms and the further pain that resulted from that slip and fall in 1988, whether or not those symptoms and pain were related to his slip and fall of 1988 or whether they were related back to 1985?
A: I think so.
Q: On the basis of a reasonable medical certainty, doctor?
A: On the basis of the history you give, you would have to say it is related to the fall in 1988.
(O'Neil Dep. 57-59.) This medical opinion is bolstered by the employee's deposition testimony, also adopted by the judge, that as of three and a half years after the slip and fall, his medical condition had not returned to its pre-slip and fall status. (Dec. 8.) That testimony was as follows:
We point out that Dr. O'Neil was never asked whether the employee's condition or symptoms that prompted the disputed medical services, including the ambulance bills, had any relationship to the 1985 work injury. Had he been asked and responded affirmatively, there would be sufficient evidence to find causal relationship to the 1985 injury, and the case would take on a different analytical posture. See Twomey v. Greater Lawrence Visiting Nurse Assoc., supra at 158-159; Wallace v. Boston Herald Co., 3 Mass. Workers' Comp. Rep. 122, 123 (1989) (insurer not excused from paying compensation for earlier back injury by later, supervening, noncompensable injury to leg that rendered employee totally incapacitated.) Without that line of questioning and an affirmative opinion, the employee failed to meet his burden of proof.
Q: At some point after your fall in February of 1988, did your back ever return to the same condition that it was prior to the fall?
A: No.
Q: What is different about the condition of your back now than it was prior to the fall in February of 1988?
A: The pain was a lot more intense and constant. I was able to alleviate pain before by laying down, but the pain would not alleviate itself.
We cannot say that the judge's reading of the quoted testimony of both Dr. O'Neil and the employee was erroneous. Based on the employee's conflicting testimony as to the source of his pain, the judge was within his discretion in finding that the employee had failed to meet his burden of proof in establishing causal relationship of his post 1988 condition. Indeed, it would appear at first blush that the judge's conclusion that the medical and lay evidence did not support the employee's claim for § 30 benefits was not at all arbitrary, capricious or contrary to law. G.L.c. 152, § 11C.
We do, however, discern a wrinkle. The employee's claim for chiropractic treatment derives from 1992-1993, a period subsequent to the employee's October 3, 1991 testimony of worsened symptomatology due to the slip and fall. As such, the medical opinion on the employee's increased symptoms, which Dr. O'Neil did not define as to its duration, does not support the conclusion that the 1992-1993 chiropractic treatment was not causally related to the 1985 industrial injury. We ordinarily would recommit this case to the judge for re-examination of the evidence to determine whether the chiropractic treatment was causally related and reasonable and adequate, pursuant to § 30. The judge, however, relied exclusively on the medical testimony of the insurer's expert, Dr. O'Neil, in his analysis of the employee's claim. He explicitly rejected the testimony of the employee's medical experts. (Dec. 9.) Although Dr. O'Neil's opinion does not cut off causal relationship between the 1985 industrial injury and the 1992-1993 chiropractic treatment, as the judge concluded, it does answer the question of compensability of the chiropractic treatment, pursuant to § 30. Dr. O'Neil states unequivocally the chiropractic treatment was of no value to the employee and should have been discontinued as of each of his three examinations of the employee, conducted respectively on June 26, 1990, August 6, 1991 and April 14, 1992. (O'Neil Dep. 14-16, and Exs. 1-3 thereto.) As the employee has failed to meet his burden of proof on the issue of necessity of care as well as the other medical bills, we affirm the decision.
So ordered.
___________________________ Sara Holmes Wilson Administrative Law Judge
___________________________ Carolynn N. Fischel Administrative Law Judge
____________________________ Edward P. Kirby Administrative Law Judge
Filed: January 28, 1997