Opinion
Board No. 008918-91
Filed: July 18, 1995
REVIEWING BOARD:
Judges Fischel, McCarthy, and Wilson.
APPEARANCES:
James L. Clifford, Esq., for the employee.
Thomas E. Fleischer, Esq., for the insurer.
The insurer appeals from the decision of an administrative judge which found the employee continued to be totally disabled as a result of an industrial injury sustained on October 22, 1983. We affirm the decision of the administrative judge, finding it supported by the evidence.
The employee, fifty-nine at the time of hearing, received an elementary school education in his native Poland and emigrated to the United States in 1982. He can neither read, write, speak nor understand English. While bending to lift a box at Anglo Fabrics on October 22, 1983, the employee "heard a sound in his back." (Dec. 3.) He has been out of work since. The insurer accepted liability for the payment of compensation at the rate of $147.22 per week based on an average weekly wage of $220.83.
The judge found that the employee was also entitled to § 35A benefits in the amount of $2.76 per week because the employee has one dependant under the Act.
In 1991 the insurer filed a request to discontinue and in connection with that request asked the department to arrange for an impartial examination of the employee pursuant to G.L.c. 152, § 8(4). That examination was performed on October 31, 1991 by Dr. Francis J. Waters, an orthopedic surgeon who was deposed by the parties.
Dr. Waters testified that an MRI showed the employee to have an herniated disc at L4-5 which the doctor felt was probably causally related to the 1983 injury. (Depo. Dr. Waters p. 31.) Dr. Waters noted that the employee also had very advanced arthritis of the hip. He had no opinion as to whether the arthritis condition existed prior to the 1983 work injury or developed subsequently, but agreed that the arthritis condition was not work related. ( Id. pp. 8, 28.)
If the arthritis condition existed prior to the 1983 work injury, it would be considered by the judge as part of the "as is" condition of the employee. The employer and insurer must take the employee's health as it happens to be during the period of employment and term of the policy. L. Locke, Workmen's Compensation § 173, at 177 (1981).
Dr. Waters testified that the employee had no work capacity as a result of "two distinct disabilities": 1) bilateral hip disease, and 2) back problems with unilateral radicular symptoms in his right leg. (Depo. Dr. Waters pp. 7, 28.) Dr. Waters testified that the hip condition was an even greater contributor to the employee's disability than his work-related back condition, but that the disc condition at L4-5 could, by itself, cause total disability ( Id. pp. 32, 33).
The judge adopted the opinion of Dr. Waters as to the back condition. The judge made specific findings as to the employee's age (59), education (elementary) and lack of English language skills. He found that in view of the employee's education, training and work experience, he continued to be totally incapacitated for work. The insurer filed this appeal.
The insurer contends that the adopted medical expert only expressed the possibility of causal relation. A medical expert's testimony that asserts no more than a possibility that an employee's injury is work related lacks probative value. Hachadourian's Case, 340 Mass. 81 (1959); Cornell v. M.B.T.A., 4 Mass. Workers' Comp. Rep. 26 (1990). In this case Dr. Waters opined that the employee "has a probable disc problem at L4-5 and this is probably related to the injury sustained at work." (Depo. Dr. Waters p. 31; Depo. Exhibit #2). His opinion as to causal relationship between the diagnosed condition and the industrial injury had the requisite certainty.
It is the province of the administrative judge to determine how work-related medical conditions combine with non-medical factors to impact on earning capacity. Frennier's Case, 318 Mass. 635 (1945); Scheffler's Case, 419 Mass. 251, 256 (1994). The judge was well within his discretion to conclude that this employee was totally incapacitated for work as a result of the October 22, 1983 injury.
The decision of the administrative judge is affirmed. The insurer is to pay to employee's counsel a fee in the amount of $1000.00.
Judges McCarthy and Wilson concur.