Opinion
BOARD No. 09252388
Filed: October 27, 1995
REVIEWING BOARD DECISION
(Judges Kirby, Smith and Maze-Rothstein)
John Cowie, Esq., for the Insurer.
Andrew Wainwright, Esq., for the Employee.
The insurer appeals from two decisions. In the first, August 20, 1992 decision, corrected on September 4, 1992 (hereinafter Decision I) the administrative judge awarded the employee a closed period of § 34 and ongoing § 35 benefits due to an exacerbation of chronic obstructive pulmonary disease (COPD) and heightened sensitivity to construction dust and other irritants. The insurer argues that the judge's findings and conclusions are unsupported by the medical evidence, specifically that there was no evidence of ongoing medical disability, as the employee had returned to "base line." We affirm the decision, noting that the judge found a causally related onset of hypersensitivity, a new injury that brings the case within the holding in Dimitropoulos's Case, 343 Mass. 341 (1961).
In the second decision (hereinafter Decision II), filed on May 31, 1994, the judge, due to the employee's absence at hearing, dismissed without prejudice the employee's claim for § 50 interest payments and awarded the employee cost of living adjustments pursuant to G.L.c. 152, § 35F (St. 1985, c. 572, § 45). We affirm that decision on both issues.
The employee, a master electrician, began working for R.A. Wilson Electrical Contractors (Wilson) in March 1988. In the course of his employment with Wilson, the employee was assigned to work as foreman on a large wiring project at Crane Paper Company. While the wiring project was ongoing, Crane was manufacturing synthetic materials containing plastic fiber and fiber glass in the same room. The room had no open windows or ventilation. (Dec. I, at 3; Dec. II, at 3.)
The employee testified that the room was full of dust and white particles and that he developed a rash on his arms and a throat irritation while working there. (Dec. I, at 3-4.) He had difficulty breathing, whether or not he wore a face mask. Id. In November 1988 the employee started experiencing dry heaves, coughing and spitting blood. Id. The employee sought medical treatment in December 1988. The initial diagnosis was asthmatic bronchitis, pharyngitis, hematuria and asbestosis. Id. at 4. The employee stopped working at the Crane site on December 22, 1988. (Dec. I, at 5.) The employee underwent treatment and in early 1989 he was diagnosed with irritative laryngitis and pharyngitis. (Dec. I, at 5.)
The employee's pulmonary problems predated the events of November and December 1988, commencing in or about 1983. Dr. Clifford Prestia, a pulmonary specialist, diagnosed the employee as suffering from pulmonary parenchymal asbestosis of a mild to moderate degree superimposed upon chronic obstructive pulmonary disease dating back to at least 1983. (Dec. I, at 6.) Between 1983 and 1988, the employee experienced intermittent episodes of pleuritic-like chest pain, lasting six to eight weeks at a time. (Dec. I, at 4.)
The employee underwent pulmonary testing in December 1983, January, 1989, April, 1989, September, 1989, and July, 1991. (Dec. I, at 6). The tests performed were of pulmonary function: the forced vital capacity test (FVC) and the forced capacity volume test (FEV1), both of which measure the volume of air one can blow out of one's lungs in one second. (Dec. I at 5.) Dr. Zuflacht opined that the results from the January, 1989 testing indicated an objective worsening and impairment of pulmonary functions when compared with results from the same tests one year earlier. Id. The tests performed in April 1989, while showing some improvement from the January 1989 tests, were still indicative of "significant impairment" of function. (Dec. I, at 5; Zuflacht Dep. 15-16.) The same tests performed in July, 1991 showed a return to levels close to the earlier results. (Dec. I, at 5.)
Dr. Prestia opined, based on his review of further pulmonary function tests from December 1983, January 1989, April 1989, September 1989, and July 1991, that the employee had a fairly consistent base line respiratory function from 1983 to 1991, except for the January 1989 test. At that time (directly after the exposure at the Crane site), Dr. Prestia felt that the employee suffered from a "considerable diminution" from the "base line" established before the exposure. Dr. Prestia also opined that the employee's medical condition after the 1988 exposure was one of occupational sensitization superimposed upon his prior stable chronic obstructive pulmonary disease (Prestia Dep. 24-25), and that the employee was very likely to suffer exacerabations from any further dusty work exposures as an electrician. (Prestia Dep. 28-29; See Dec. I at 6.) Doctor Miller opined in her report of September 27, 1989 that the "occupationaly induced . . . exacerbation of . . . [the] pre-existing condition had significantly improved as of September, 1989." (Dec. I, at 6-7; Employee's Ex. 10.)
The employee testified that he could not practice in the industrial electrical field due to the risk of exposure to dust that would exacerabate his pulmonary disease. (Dec. I, at 7.)
The employee's claim for benefits under §§ 34, 13 and 30 was denied at conference on November 19, 1990. The employee appealed for hearing de novo, which was held on August 22, 1991. In Decision I, the administrative judge awarded § 34 benefits from December 12, 1988 to July 30, 1989, and § 35 benefits from August 1, 1989 to date and continuing, assigning an earning capacity of $500.00 per week. (Dec. I, at 8-9.) The insurer appealed from that decision.
The insurer does not challenge the judge's assignment of the closed period of § 34 benefits. The insurer's succinct argument is that 1) the medical condition that the employee suffered as a result of work-related events in the fall of 1988 "cleared up sometime between April of 1989 and September of 1989 [as the judge found]; and the employee's underlying COPD has returned to baseline;" and 2) the medical records do not "establish any future restrictions for the employee, except those which were applicable to him before December of 1988," when he became incapacitated. (Insurer's Brief, 6.) While the insurer's first contention is correct, we do not agree with its second contention.
In his general findings, the administrative judge first stated the basis for liability to attach in this case:
The evidence as a whole establishes that, more likely than not, the Employee exacerbated a long standing chronic obstructive pulmonary disease as a result of exposure at work to dust and other irritants (probably plastic fibers and glass flakes) and did become disabled from work as an electrician. (Dec. I, at 7-8.)
The administrative judge then found that the employee's total incapacity ended when his pulmonary condition returned to "base line" as of July 30, 1989. (Dec. I, at 8.)
The administrative judge adopted the testimony of Dr. Prestia in his subsidiary findings, and it is this testimony that is the source of the judge's reference to the employee's "base line" diminution medical condition. (Dec. I, at 6, 8; Prestia Dep. 8-9) The pertinent testimony is as follows:
Q: And looking at these various pulmonary function studies, could you compare for me Mr. LaDouceur's pulmonary performance between 1983 and 1991?
A: In that he was basically at base line in 1983, perhaps a little under, improved slightly to a little better in April of '89, but in January of '89 had a considerable diminution from 1983, an exacerbation of the situation, and then kind of leveled out in his pulmonary function tests towards base line in 1983.
(Prestia Dep. 8-9.)
What is clear from this testimony is that the "base line" was measured by the objective pulmonary function tests: forced vital capacity (FVC) and forced capacity volume in one second (FEV1). (Dec. I, at 5.) These tests indicate the present impairment of the breathing function, the symptomatology that the employee exhibited at any particular time. (Zuflacht Dep. 10-18.) The administrative judge's general finding that the employee's pulmonary condition returned to "base line" as of July 30, 1989 accurately reflects the medical testimony in evidence, that, at least by July 30, 1989, the episode of heightened pulmonary symptomology attributable to the subject industrial accident had concluded. See (Dec. I, at 5-8)
The insurer would have us close our analysis there. However, the judge's general findings continue:
The view of the experts is that exposure to significant dust or other irritants in all likelihood would exacerbate the Employee's underlying obstructive pulmonary disease, and that the Employee may very well have heightened sensitivity, to such irritants. . . . I cannot but infer that if the Employee was exposed to "significant" dust and irritants, he would suffer an exacerbation. I have concluded that he can continue to apply his skills as an electrician in the context of restricted environmental circumstances either part-time or in limited, harmless conditions. (Emphasis added).
(Dec. I, at 8 (Emphasis added). The insurer contends that the medical testimony does not establish future restrictions for the employee, except for those applicable prior to December 1988 (the "base line"), and that the judge's conclusions regarding ongoing disability therefore are ungrounded. (Insurer's Brief 6). We do not agree, as the medical testimony does indeed indicate that the employee's sensitivity was heightened as a result of the exposure he suffered at the work site in November/December 1988. (Miller Report, Employee's Ex. 10; Prestia Dep. 23-25; Zuflacht Dep. 12-18.)
We are of the opinion that this case is governed by Dimitropoulos's Case, 343 Mass. 341 (1961). In that case, the employee suffered a work-related detached retina, which was repaired surgically. Id. at 342. Although the medical evidence was that the employee enjoyed sight and function of the eye as good as before his industrial injury (i.e. "base line"), there was a distinct possibility of reinjury to the eye if the employee went back to the heavy labor he was performing prior to the injury. Id. at 342-343. The court held that "a finding of partial incapacity is warranted where an employee, under competent medical advise, refrains from engaging in his former work because of the considerable risk of reinjury. . . ." Id. at 345. The court relied on precedent under the English Workmen's Compensation Act for authority, and included in its discussion the following quotation, apposite to the case at bar:
Suppose it was a question of exposure, and the exposure was such as a healthy man might bear, but by reason of the accident a man had developed a delicacy of the lungs, he would have the right to say: 'The risk of exposure is one which a healthy man might bear because it would only be a question of a cold, or at worst a little bronchial attack in his case, but in my case it probably would be death, and therefore I decline to take the employment because in my condition it is not suitable.'(Emphasis added).
Id. at 346, n. 2, quoting Eyre v. Houghton Main Colliery Co. Ltd.; 1 K.B. 695, 700; 3 B.W.C. C. 250, 277. The facts in the instant case indicate, and the judge found, that the employee suffered heightened sensitization to significant amounts of dust and other construction irritants due to the exposure he suffered in 1988. Due to this hypersensitivity, the employee is at greater risk of an exacerbation of his chronic underlying pulmonary disease if he were to go back to work in the type of industrial setting in which his 1988 injury occurred. The judge concluded that the employee's earning capacity was thereby diminished. We find no error here.
With regard to the second decision (Decision II) here at issue, the insurer claims that the judge's dismissal without prejudice of the employee's § 50 interest claim, where the employee failed to appear for the hearing, was arbitrary and capricious. The insurer would have us dismiss the claim with prejudice. "As with most rulings by a judge regarding the management of a case, '[o]nly in rare instances can it be ruled that there has been an abuse of discretion amounting to [an] error of law.'" Merles v. Lerner, 391 Mass. 221, 223-224 (1984), quoting Bresnahan v. Proman, 312 Mass. 97, 101-102 (1942). As the employee lives in Arizona (Dec. I, at 7), we do not consider this to be this one of those rare instances.
It appears from the record that the underlying obligation on which interest is claimed is for the period from September 3, 1993 to February 2, 1993. See G.L.c. 152, §§ 50, 8.
The insurer finally argues that the judge's award of cost of living adjustments under G.L.c. 152, § 35F (St. 1985, c. 572, § 45), which was in effect on the date of the employee's injury, December 12, 1988, is erroneous as a matter of law. Section 35F was repealed by St. 1991, c. 398, § 67. That section was expressly deemed substantive in character by St. 1991, c. 398, § 106, making it applicable only to dates of injury occurring on or after the December 23, 1991 effective date for c. 398, § 67. Notwithstanding this explicit provision of substantive character, the insurer contends that the Legislature actually intended that the 1991 repeal of § 35F was to be applied retroactively as a procedural provision. We disagree. Statutes 1991, c. 398, § 106 must be read in conjunction with G.L.c. 152, § 2A, which states:
St. 1991, c. 398, § 106 states, in pertinent part:
For purposes of section two A of chapter one hundred and fifty-two of the General Laws, . . . section[s] . . . sixty-seven . . . of chapter one hundred and fifty-two of the General Laws shall be deemed to be substantive in character.
Every act, in amendment of this chapter, in effect on the effective date of this section or thereafter becoming effective which increases or decreases the amount or amounts of compensation payable to an injured employee or his dependents including amounts deducted for legal fees, shall for the purposes of this chapter, be deemed to be substantive in character and shall apply only to personal injuries occurring on or after the effective date of such act, unless otherwise expressly provided. Every act, in amendment of this chapter, in effect on the effective date of this section or thereafter becoming effective which is not deemed to be substantive in character within the meaning of this section shall be deemed to be procedural or remedial only, in character, and shall have application to personal injuries irrespective of the date of their occurrence, unless otherwise expressly provided. (Emphasis added.)
G.L.c. 152, § 2A (St. 1991, c. 398, § 16).
Granted that COLA adjustments are not "compensation" within the meaning of the Act, Lumi v. Brockway Motor Trucks, 6 Mass. Workers' Comp. Rep. 40 (1992), we must look to the second sentence of § 2A in order to evaluate the character of the 1991 repeal of § 35F embodied in St. 1991, c. 398, § 67. The insurer urges that the second sentence commands that c. 398, § 67 have procedural character. That would be true under Lumi v. Brockway Motor Trucks, supra, if that sentence did not end with the provision: "unless otherwise expressly provided." The legislature expressly provided for the substantive character of c. 398, § 67 in the plain language of St. 1991 c. 398, § 106. See Connolly's Case, 418 Mass. 848, 851 n. 2 (1994) ("The specific designations of procedural and substantive provisions St. 1991, c. 398, §§ 103-106, make the intent of the Massachusetts Legislature clear.")
See supra n. 2 (text of St. 1991, c. 398, § 106).
Insurer is to pay a fee to employee's counsel in the amount of $2,000.00 for work on the two appeals pursuant to § 13A.
We affirm the judge's decisions.
So ordered.
____________________________________ Edward P. Kirby Administrative Law Judge
____________________________________ Suzanne E.K. Smith Administrative Law Judge
____________________________________ Susan Maze-Rothstein Administrative Law Judge
Filed: October 27, 1995