Opinion
BOARD No. 061838-91
Filed: May 14, 1996
REVIEWING BOARD DECISION
(Judges Fischel, McCarthy and Wilson)
APPEARANCES
Michael P. Joyce, Esq. for the employee
Paul A. Brien, Esq. for the self-insurer
Cross appeals bring this case to the reviewing board. The employee contends that the administrative judge erroneously applied the provisions of G.L.c. 152, § 35B to effect a reduction in her rate of compensation as of the date of the recurrence of incapacity after she returned to work following an accepted industrial injury. The insurer argues that judge erroneously adopted a speculative medical opinion.
We agree with the employee that the judge should not have imposed a rate reduction on the employee by way of § 35B. With respect to the self-insurer's appeal, we find no error in the judge's treatment of the medical aspect of this case.
On November 6, 1991, the employee injured her neck and right arm when she slipped and fell at work. (Dec. 4.) The insurer accepted the claim and paid weekly compensation and medical benefits. (Dec. 2, 4.) The employee returned to work on February 12, 1992, while still experiencing neck and arm pain. (Dec. 4.) The employee's pain increased to the point that she could no longer work by June 23, 1992. (Dec. 5.) The employee again received workers' compensation benefits, but the insurer soon filed a request to modify or discontinue payments. This complaint was heard at a conference on March 23, 1994. The insurer's request was denied at conference, and the insurer appealed to a hearing de novo. (Dec. 1.)
At hearing the employee's claim was for continuing § 34 incapacity benefits, and § 30 medical benefits. The employee claimed incapacity due to her neck, as well as a secondary lumbar and right leg disability. The insurer raised the issues of causal relationship, incapacity and extent thereof and liability as to the employee's lumbar and right leg condition. The self-insurer also requested that the provisions of § 35B be applied to reduce both the weekly rate and the total number of weeks of entitlement. (Dec. 2.) We go first to a discussion of the employee's § 35B appeal.
The judge determined that the employee had suffered a deterioration of her medical condition, such that § 35B would apply to the period of incapacity which began on June 23, 1992. Rush v. M.B.T.A., 8 Mass. Workers' Comp. Rep 270, 273 (1994). (Dec. 6.) As a result the judge determined that the § 34 rates of compensation in effect on June 23, 1992, the starting date of the second incapacity, applied. (Dec. 6-7, 14.) This resulted in the employee's compensation rate being calculated at the 60% rate which came into effect on December 23, 1991, rather than the 66 2/3% rate in effect at the time of the employee's November 6, 1991 industrial injury. In addition, the maximum amount of compensation available under § 34 decreased from the "rate" of 260 weeks to 156 weeks. See Barbaro v. Smith Wesson, Inc., 9 Mass. Worker's Comp. Rep. ___ (1995).
G.L.c. 152, § 34 (St. 1991, c. 398, § 59) states, in its entirety:
While the incapacity for work resulting from the injury is total, during each week of incapacity the insurer shall pay the injured employee compensation equal to sixty percent of his or her average weekly wage before the injury, but not more than the maximum weekly compensation rate, unless the average weekly wage of the employee is less than the minimum weekly compensation rate, in which case said weekly compensation shall be equal to his average weekly wage.
The total number of weeks of compensation due the employee under this section shall not exceed one hundred fifty-six.
In comparison, G.L.c. 152, § 34 (St. 1985, c. 572, § 42) stated in its entirety:
While the incapacity for work resulting from the injury is total, during each week of incapacity the insurer shall pay the injured employee a weekly compensation equal to two-thirds of his average weekly wage before the injury, but not more than the maximum weekly compensation rate not less than the minimum weekly compensation rate, unless the average weekly wage of the employee is less than the minimum weekly compensation rate, in which case said weekly compensation shall be equal to his average weekly wage.
The total number of weeks of compensation due the employee under this section shall not exceed two hundred and sixty.
General Laws c. 152, § 35B (St. 1970, c. 667, § 1) provides, in pertinent part:
An employee who has been receiving compensation under this chapter and who has returned to work for a period of not less than two months, shall, if he is subsequently injured and receives compensation, be paid such compensation at the rate in effect at the time of the subsequent injury whether or not such subsequent injury is determined to be a recurrence of the former injury . . . .
With the judge's finding of a medical deterioration resulting in a subsequent incapacity, constituting the "subsequent injury" within the meaning of § 35B — see Ottani v. Ottani Tree Service, 9 Mass. Workers' Comp. Rep. ___ (1995) — it is clear that § 35B can apply to this case. Neither party contends otherwise. The question posed by the employee is whether it was correct for the judge so to apply it, at the insurer's request and to the employee's disadvantage. We think not.
In Barbaro v. Smith Wesson, supra, we determined that "rate" as used in § 35B included the weekly caps and the statutory maximums set and periodically revised by the Legislature. We concluded that the employee in that case was entitled to the statutory maximum rate at the time of his "subsequent injury" in 1988, as opposed to his 1985 industrial accident. We thereby determined that the employee was entitled to § 35 incapacity benefits under the duration-based provisions of St. 1985, c. 572, § 44 (establishing six hundred weeks of entitlement) rather than the quantitative statutory maximum of 250 times the state average weekly wage applicable in the earlier version of § 35. St. 1981, c. 572, § 2. Id.
We see no substantive difference between the legislatively set statutory maximum rates at issue in Barbaro, and the legislatively established percentage rates for § 34 benefits here at issue. The change from the two-thirds rate to the 60% rate in 1991 is wholly within the rationale of the discussion in Barbaro, and we adopt and apply our reasoning therefrom. In our view then, the judge was not wrong when he fixed the compensation "rate" at 60% of the average weekly wage. The mistake arose when he applied § 35B at all!
We expanded upon our Barbaro § 35B analysis in Puleri v. Scheaffer Eaton, 10 Mass. Workers' Comp. Rep. ___ (1996). InPuleri, we first determined that "rate" within the meaning of § 35B also included the concept of an employee's compensation "rate[based on the average weekly wage] in effect at the time of the subsequent injury." Id., quoting § 35B (emphasis in original). The second issue raised in Puleri called upon us to decide the very issue presented by the employee in this appeal — whether § 35B could be used by an insurer to its benefit to effect a decrease in an employee's compensation benefits. Rather than paraphrase Puleri, we quote at length from that decision as it is dispositive of the § 35B issue now before us.
In Barbaro v. Smith and Wesson, 9 Mass. Workers' Comp. Rep. ___ (1995), we reviewed the historical context of the Legislature's passage of § 35B in 1970, citing excerpts from the first edition of Locke's Workmen's Compensation, published almost contemporaneously in 1968. At that time, the Legislature had to amend the Act whenever any change in the benefit scales needed to be made. Locke wrote:
Compare the current system of automatic increases in the State average weekly wage, see G.L.c. 152, § 1(10) and G.L.c. 151A, § 29(a).
The present system of compensation benefits has been criticized on several grounds: (1) Inadequacy,. . . . To limit payment during total incapacity to $58 or even $65 weekly [the weekly maximum as of 10/13/68] for an employee earning $8,000 to $15,000 a year renders compensation ineffective to replace his wage loss from employment-related disability. . . . (2) Obsolescence, particularly for employees whose injuries occurred before the current legislative amendments and who are restricted to the lower benefit scale.
Barbaro, supra, slip op. at 9, citing L. Locke, Workmen's Compensation § 302 (1968) (emphasis added). After the enactment of § 35B, Locke wrote, "In a further effort to overcome the obsolescence of the benefit scale, the legislature in 1970 provided [35B]. . . ." Id. at 10, citing Locke, § 302 (2d. Ed. 1981). We must construe the statute "in connection with the cause of its enactment, the mischief or imperfection to be remedied and the main object to be accomplished, to the end that the purpose of its framers may be effectuated." Jinwala v. Bizzaro, 24 Mass. App. Ct. 1, 3 (1987). At the time of its enactment, § 35B quite clearly was intended to address the problem of employees suffering a "subsequent injury" being stuck with a compensation rate which was economically relevant to an often remote date of the original injury. We think that, like § 51A, § 35B must be construed to benefit employees, not to disadvantage them. See Spinoza, supra.
General Laws, c. 152, § 51A (St. 1969, c. 833, § 1) states:
In any claim in which no compensation has been paid prior to the final decision on such claim, said final decision shall take into consideration compensation provided by statute on the date of the decision, rather than the date of the injury.
We find support for our interpretation of § 35B in Madariaga's Case, 19 Mass. App. Ct. 477 (1985). In that case, the Appeals Court analyzed, without deciding, the application of § 51A, in a case where the subject § 36A benefits had been reduced between the date of injury and the date of the final decision. Id. at 482-483. The court first adopted language from McLeod's Case, 389 Mass. 431, 435 (1983):
"§ 51A reflects a legislative intent to avoid obsolescence of compensation rates by requiring benefits to be computed in accordance with the statutory rate in effect at the time of the final decision, when no payments have been made during the period the claim has been contested."Id. at 483. The court continued:
We regard this statement as indication that the court (because of the facts with which it then was dealing) interpreted § 51A in the light of the general upward trend of compensation benefits and rates over the years. [Footnote omitted.] The Supreme Judicial Court has not yet decided whether it would reach the same result in a case involving less benefits at final decision than on the date of injury. There would be substantial basis for deciding that the Legislature did not intend that § 51A should have any application where benefits were reduced between injury and final decision.
Madariaga's Case at 483. (Emphasis added.) We feel that the same rationale applies to the application of § 35B. "Our construction of § 35B is consistent with the 'beneficent design' of the Act, Johnson's Case, 318 Mass. at 746, and in furtherance of its purpose, Ahmed's Case, 278 Mass. at 183." Don Francisco's Case, 14 Mass. App. Ct. at 462. See Neff [v. Commissioner of the Dep't of Indus. Accidents, 421 Mass. 70, 73 (1995).] Therefore, the [employee's] argument . . . [succeeds] because § 35B simply may not be applied to effect a reduction in the benefits that an employee otherwise would receive. [Footnote omitted.] Puleri, supra (emphases in original).
We think that the best way to harmonize the 1991 legislative rate reduction without diluting the original intent and continued meaningful existence of § 35B is to construe § 35B as an exclusively employee-invoked section of the Act. In so determining, we disagree with the administrative judge, who stated that:
[O]ne can assume that the legislature knew that by changing the compensation rates this would have the effect of reducing the rates for employees who fall within § 35B of the Act. It does appear that the intent of this legislature was to reduce workers' compensation for those workers who are eligible for benefits after December 23, 1991. This would include those workers whose dates of injury are prior to that date but who return to work and are subject to § 35B. (Dec. 6-7.)
We do not assume that, by its silence, the Legislature intended § 35B to be transformed into the antithesis of what was originally intended when § 35B was enacted. We therefore reverse the decision insofar as it applies § 35B to the employee's claim. However, since we cannot determine from the decision or the Board file whether the stipulated average weekly wage of $518.16 was based on the original 1991 date of injury, or the 1992 date of the "subsequent injury" under § 35B, we must recommit the case for the very limited purpose of clarifying that issue. Since § 35B does not apply, as the employee did not raise it, the average weekly wage shall be that in effect on November 6, 1991, the original date of injury.
We note that the judge's decision was filed before we issuedPuleri.
We turn now to the insurer's appeal. The insurer contends that the opinion of Dr. James Reed, which the judge adopted, was legally insufficient to establish causal relationship between the industrial injury and the employee's lower back and right leg pain. The judge made the following subsidiary findings regarding the employee's medical condition:
After she left work in June, 1992, the employee continued conservative treatment. Thereafter, she underwent a myelogram and CT scan which showed a disc herniation to the right at C6-7. The employee underwent surgery on October 20, 1992, when she had an anterior cervical discectomy at C6-7 with anterior fusion using plates and screws. The graft site was the left iliac crest [hip].
The employee was in the hospital for three days after the surgery. On October 22, 1992, two days after the surgery, a physical therapist helped the employee get out of bed and walk. With the assistance of a cane and accompanied by the therapist, the employee walked the hallway of the hospital. She went around the nurses' station a few times. The therapist had the employee walk up six steps. The employee found it very difficult to do so. The therapist helped the employee with her first few steps and showed the employee how to put more pressure on the right than the left; the employee went up herself the next few steps using the cane. The therapist also taught the employee what to do and then let the employee do it herself. Right after doing this walking, the employee felt low back, right hip and right leg pain. She had never had these problems prior to that morning.
. . .
[A] December 1, 1992 note from the rehabilitative service indicated that the patient was having pain in the leg but no irritability in the lower back. The employee began complaining to the therapist in mid-December of back pain and continued to complain of leg pain.
The diagnosis was herniation at the L5-S1. On December 6, 1994, Dr. Reed performed surgery with respect to this lumbar condition. (Dec. 7-9.)
Dr. Reed opined at his deposition that it was "highly conceivable" the employee injured her back as a result of walking around and going up steps as part of her recovery. (Reed. Depo. 22.) More specifically, the doctor opined that although he could not pin down the source of the lumbar herniation, the post-surgery physical activity probably exacerbated that medical condition to the point of being symptomatic. (Dec. 10; Reed Depo. 19-31.) The judge adopted Dr. Reed's medical opinion, and, based on the above-stated subsidiary findings and the doctor's opinion, concluded that, "there is a causal relationship between the employee's lumbar condition for which she underwent surgery in December, 1994, and the stipulated industrial injury. (Dec. 9-10.) We affirm the judge's conclusion.
An expert's use of the words, "'possible,' 'conceivable,' or 'reasonable' do not fatally flaw his opinion . . . where the sequence of events or other evidence warrants the conclusion that causal relation is probable." L. Locke, Workmen's Compensation, § 522 (2nd ed. 1981), citing Fennell's Case, 277 Mass. 492, 496 (1931) (emphasis added); DeFilippo's Case, 284 Mass. 531, 534-535 (1933); Josi's Case, 324 Mass. 415, 417 (1949). As we stated inBedugnis v. Paul McGuire Chevrolet, 9 Mass. Workers' Comp. Rep. ___ (1995), "[T]he courts have long recognized a judge's authority as fact finder to find causal relationship where the expert testimony and lay testimony taken as a whole warrant that result." We read the judge's subsidiary findings describing the onset of the employee's lumbar pain and the adopted expert opinion as meeting this standard. That the opinion was speculative as to the to the source of the pre-existing asymptomatic lumbar herniation, see Dec. 10, does not render the opinion legally insufficient. The "personal injury" under the Act occurred on November 6, 1991. the history of her fragility. "[I]t is the hazard of the employment acting upon the particular employee in [her] condition of health and not what that hazard would be if acting upon a healthy employee or upon the average employee." Madden's Case, 222 Mass. 487, 494 (1916). Cf. Robles v. Riverside Management, Inc., 10 Mass. Workers' Comp. Rep. ___ (1996) (discussing the new standard of causal relation under 1991 amendment to § 1(7A) for industrial aggravations of pre-existing non-compensable medical conditions). It is axiomatic that the risks of medical treatment for an industrial injury are assessable against the insurer. Burn's Case, 218 Mass. 8, 11 (1914). The expert opinion that the employee's physical activity in the hospital probably exacerbated the lumbar condition warrants a finding of causal relation for this "as is" employee.
Accordingly, we affirm the decision in all respects except for the judge's application of § 35B, which we reverse. We recommit the case for clarification of the employee's November 6, 1991 average weekly wage.
So ordered.
___________________________ Carolynn N. Fischel Administrative Law Judge
___________________________ William A. McCarthy Administrative Law Judge
_____________________________ Sara Holmes Wilson Administrative Law Judge
Filed: May 14, 1996