Opinion
BOARD Nos. 023642-91, 036296-92
Filed: October 19, 1995
REVIEWING BOARD DECISION
(Judges Kirby, Maze-Rothstein and Smith)
APPEARANCES
Mark Horan, Esq., for the employee.
Joanne Marchi, Esq. at hearing, James A. Garretson, Esq. on appeal, for Aetna Casualty Surety.
Allen Whitestone, Esq. for Liberty Mutual Insurance Company.
Aetna Casualty Surety appeals the decision of an administrative judge granting Liberty Mutual's Request for Modification of Benefits and substituting Aetna as the insurer responsible for ongoing partial compensation to the employee pursuant to G.L.c. 152, § 15A. Because the administrative judge rejected the opinion of the § 11A doctor for reasons that cannot be supported anywhere in the evidence, we vacate the decision.
The issue presented to the administrative judge by Liberty Mutual's Request for Modification or Discontinuance was whether the impact of the second injury on the employee's earning capacity had ended, leaving the employee with only the residual effects of the original injury. The judge correctly ruled that if so, the original insurer was again responsible for benefits. See Dec. 3.
The issue of the contribution of multiple injuries to a period of incapacity requires expert medical opinion evidence. Medeiros v. San Toro Mfg., 7 Mass. Workers' Comp. Rep. 66, 68 (1993). Pursuant to G.L.c. 152, § 11A, this requirement may be satisfied by the admission of the report of an impartial medical examiner.
The employee moved to admit medical evidence in addition to the impartial physician's report and deposition. The judge denied the motion, thus leaving the impartial physician's opinion as the only medical evidence in the case. The judge concluded that Leblanc's current disability was secondary to his first industrial accident and the resulting surgery. He took "Dr. Provost's testimony as a whole to indicate that the 1991 industrial accident was an aggravation of the 1979 injury and that the aggravation had now resolved." (Dec. 9.) He therefore concluded as a matter of law that as of the time of Dr. Provost's examination on June 4, 1993 that Aetna Insurance Company, the first insurer, was responsible for payment of continuing benefits. (Id.)
Dr. Provost diagnosed degenerative disc disease L4, L5, secondary to the employee's 1979 surgery. He further found that the reinjury on May 14, 1991 was an aggravation of his prior degenerated disc, and that the employee had reached a medical end result. (Dec. 8-9.) Dr. Provost reported:
Diagnosis: Degenerative disc L4, L5 secondary to lumbar laminectomy L4, L5.
There is a causal connection between the patient's present medical condition as found by examination and his history of injury.
The causal relationship is verified by the original injury in 1979 which was of sufficient severity to require laminectomy for the ruptured disc with excellent recovery. But it is noted that his symptoms never fully and completely resolve[d] but he was able to work full time at his employment which only required intermittent and sporadic lifting.
The reinjury on May 14, 1991 was an aggravation of his prior degenerated disc. The x-rays taken on May 14, 1991 showed significant advanced degenerative disc disease at the L4, L5 level which is the site of his prior surgery.
Physical injuries: It is my opinion that the workplace injury described to me acted upon the employee in his existing condition at the time of health (sic) that it aggravated a pre-existing condition to his present level of disability. (Statutory Ex.)
In his deposition, Dr. Provost reiterated that he attributed causal relationship to the industrial accident and surgery of 1979. He also testified that, at the time of the examination, there was nothing acute in the employee's back condition, but that, due to the degenerative disc disease, the employee should refrain from lifting anything over five pounds. He testified that ". . . certainly more probable than not, certainly the most possible diagnosis would be aggravation of an underlying degenerative disc." (Dep. 30.) When asked if he was comfortable with the aggravation opinion given previously in his report, the doctor testified: "Yes." (Dep. 44.) He was never directly asked about the duration of the second injury's effects and whether they continued.
There is no direct testimony that the effects of the second injury had ended. The only other mechanism for such a conclusion is inference. However, Dr. Provost's testimony, including all rational inferences that may be drawn from it, does not indicate that the second injury's aggravation has resolved.
An inference is a process of reasoning whereby from the facts established by the evidence, a reasonable conclusion may be drawn that a further fact is established. Semerjian v. Stetson, 284 Mass. 510, 514 (1933). The fact that a causal connection exists with the first injury does not logically exclude a causal connection to the second injury. Blanco's Case, 308 Mass. 574, 33 N.E.2d 313, 314 (1941). The fact that the second injury was treated conservatively does not rationally support an inference of recovery from the aggravation. The fact that further heavy work will cause additional damage to the body also does not support an inference of recovery. Nor does the fact of symptoms in the same body location.
The judge reached a conclusion that is unsupported by the medical evidence in the case. There is no competent evidence to support the judge's factual conclusion that the aggravation caused by the second injury had resolved. There being no proper evidentiary support for critical factual findings, the decision is arbitrary, capricious and contrary to law and must be vacated. G.L.c. 152, § 11C; Brown v. Strathmore Paper Company, 9 Mass. Workers' Comp. Rep. ___, slip op. at 7-8 (April 19, 1995).
In summary, because we find the decision flawed, we vacate it and remand the case to the administrative judge for further proceedings, which may include the allowance of additional medical evidence if the judge finds that on net the § 11A opinion falls short of what is necessary to determine the duration of the aggravation at issue. Pursuant to § 13A(6), employee's counsel is awarded a fee of $1,000.00. Pending a final decision on which insurer is liable, the existing orders of compensation for the employee shall remain in effect pursuant to G.L.c. 152, § 15A.
So ordered.
____________________________________ Suzanne E.K. Smith Administrative Law Judge
____________________________________ Susan Maze-Rothstein Administrative Law Judge
I concur in the reasoning and the result in this case and wish only to add some specifics concerning the effect of the medical testimony. The key question here was whether the aggravation of an old injury by a second injury had run its course, or whether the aggravation continued to affect the employee's ability to work.
The report of the impartial examiner, while not a model of clear writing, can be taken as an opinion that the aggravation continued. Yet the judge decided that there was sufficient evidence before him to support a finding that the aggravation had ended. Perhaps he understood certain expressions used by the doctor in his deposition to mean more than reasonably should be understood, and that they amounted to an opinion that the aggravation had indeed ended.
In one possible such instance the doctor said the employee's condition when examined was not "acute" (Dep. 28.) This term means "having a short and relatively severe course". Dorland's Illustrated Medical Dictionary, (26th ed. 1985). The opinion that the patient showed no acute condition does not amount to an opinion that the second injury's aggravation of the first injury was ended. The effects could have remained, affecting the patient not acutely but chronically, that is, "persisting over a long period of time." Id.
In another place the examiner answered "that's correct" when asked whether the employee had "reached a medical end result." (Dep. 31.) "End result" does not mean that the patient is fully recovered, only that the condition is not getting worse or better. The "end result" could well be the result of either injury or both. It does not indicate whether or not the effect of the second injury, the aggravation, had ended.
Another likely slippery spot for one searching this record for the doctor's meaning is where he testified that his diagnosis upon examining the employee was a spinal condition "secondary to lumbar laminectomy" which had been necessitated in 1979 by the first industrial accident. "Secondary" means "[d]erived from that which is primary or original". The American Heritage Dictionary (2d College ed. 1991). The word thus provided evidence that the first injury contributed to the diagnosed condition, but it cast no light on whether or not the second injury continued to contribute to the medical disability of the employee.
Taken together with the majority decision in this case these points may be helpful to those who read doctors' reports and testimony, as well as those who interrogate doctors in the hope of eliciting medical opinions must mesh with legal analysis in matters before this department, as they work to further their advocacy.
____________________________________ Edward P. Kirby Administrative Law Judge
Filed: October 19, 1995