Opinion
BOARD No. 05648194
Filed: May 18, 1998
REVIEWING BOARD DECISION
(Judges Wilson, Fischel and Levine).
APPEARANCES
Stephen J. Kehoe, Esq. for the employee.
Donald E. Hamill, Jr., Esq. for the self-insurer.
This is the employee's appeal from the decision of an administrative judge who ordered discontinuance of both § 34 temporary and total weekly benefits and §§ 13 and 30 medical benefits. Because the judge's findings are grounded in the evidence and sufficient to support his conclusions, we affirm the decision.
The employee, who suffered from multiple sclerosis for many years, was a teacher in the city of Lynn. As the employee was attempting to move a group of students on November 30, 1994, he sustained multiple injuries when a large, eleven year old child assaulted him, jumped on his back, and knocked him to the floor. (Dec. 5.) There is no dispute that the incident took place and that the employee has not worked since December 13, 1994. Id.
The self-insurer initially paid § 34 compensation voluntarily until September 15, 1995. The employee then filed a claim for benefits. On November 14, 1995, following a conference on the matter, the judge ordered a retroactive resumption of § 34 benefits from September 16, 1995 and continuing. The self-insurer appealed to a hearing de novo.
The employee was examined by Dr. Weinberg, a neurologist, on February 12, 1996 pursuant to the provisions of § 11A(2). Dr. Weinberg was of the opinion that, while the injury sustained on November 30, 1994 was not directly related to the multiple sclerosis and did not exacerbate the condition, it was superimposed and combined with the multiple sclerosis to prolong the employee's disability. (Dec. 6, 8; St. Exhibit 1, Weinberg Report at 3-4; Weinberg Dep. 24-25.) We note that Dr. Weinberg also opined that the employee suffered from a lumbar strain syndrome causally related to the November 30, 1994 work injury, which caused a permanent partial disability. (Weinberg Dep. 24; St. Exhibit 1 at 3; see Dec. 6, 8.) He found that the employee had a sedentary work capacity if he were allowed to change position frequently and not required to undertake significant lifting, twisting, or bending. (St. Exhibit 1 at 3.) He would restrict the employee from performing many of the physical functions of his teaching job because of a risk of reinjury. (Dep. 31-34, 36-37.) That said, the § 11A physician did not think that the employee's work-related back injury was "a major disabling illness[,]" but rather it was the multiple sclerosis, possibly in combination with severe depression, that was the major reason he was unable to work. (Dec. 6, Dep. 25.) Although Dr. Weinberg raised the question of an emotional injury, he deferred to psychiatric consultants. (St. Exhibit 1 at 3.)
General Laws c. 152, § 11A(2), provides that in all cases filed on or after July 1, 1992, an impartial physician shall be appointed where medical issues are in dispute. The judge may allow additional medical evidence where there is a finding of inadequacy or complexity.
The hearing was conducted on April 2, 1996. At that time, the judge allowed the employee's motion for additional medical evidence on the employee's psychiatric condition. (Tr. 9-10.) The employee submitted the opinion of Dr. Grassion and the self-insurer, that of Dr. Weiner.
The judge issued his decision on November 21, 1996. He adopted the opinion of the § 11A examiner, Dr. Weinberg, and found that the major cause of the employee's disability was his chronic, progressive multiple sclerosis and not his low back problem, although the back strain superimposed on his multiple sclerosis prolonged his disability. (Dec. 8.) He found no aggravation of the underlying multiple sclerosis due to the industrial injury. (Dec. 9.) The judge also adopted the opinion of Dr. Weiner, the self-insurer's expert psychiatrist, that the employee's depression was not causally related to the November 30, 1994 work injury. (Dec. 9.)
The judge authorized the self-insurer to discontinue payment of § 34 weekly compensation and §§ 13 and 30 medical benefits as of February 12, 1996, the date of the § 11A exam. Id.
On appeal, the employee argues that the judge improperly applied G.L.c. 152, § 1(7A); improperly terminated medical benefits; and arbitrarily resolved the issue of emotional injury and disability. We summarily affirm the decision with regard to the first contention, and affirm as to the latter contentions, which bear comment.
The employee asserts that the judge erred in terminating medical benefits for the back condition, for which liability was not disputed. This issue is a recurrent theme on appeal. We have issued any number of decisions that set out the parameters of both the administrative judge's authority and the employee's right to medical treatment under the Act. See, e.g., Tenerowicz v. Francis Harvey Sons, 10 Mass. Workers' Comp. Rep. 76, 78 (1996); Colon v. Andover Courtyard/Marriott, 9 Mass. Workers' Comp. Rep. 9, 9-10 (1995). Without question, an employee is entitled to causally related, reasonable and necessary medical benefits under §§ 13 and 30 where, as here, liability is established for an industrial injury. Whalen v. Resource Management, 9 Mass. Workers' Comp. Rep. 689, 691 (1995). Nonetheless, in the circumstances of this case, we see no error in the judge's termination of medical benefits as of the date of the impartial expert's examination. The judge adopted both Dr. Weinberg's opinion that the work injury was not a major cause of the employee's present physical disability and Dr. Weiner's opinion that the employee's psychiatric condition was unrelated to the work injury. Absent a finding of causal relationship of the present condition to the work injury, there is no liability for medical benefits. See G.L.c. 152, § 1(7A). Of course, once liability for a work injury is established, the employee is not forever barred from a claim for future causally related, reasonable and necessary medical benefits. See Tenerowicz v. Francis Harvey Sons, supra at 78. Just as the extent of incapacity is rarely static, so too is liability for medical treatment subject to re-examination over time. Id.
As a final matter, the employee contends that the judge arbitrarily resolved the claim of a psychological injury. The judge adopted the opinion of the self-insurer's expert over that of the employee's, and found there was neither a psychiatric condition that would prevent him from working nor a causal relationship between any emotional condition or disability and the back injury. (Dec. 7, 9.) It is within the judge's prerogative to determine the probative value of an expert's testimony and to decide which of conflicting opinions to adopt.
The judge's finding that he employee "is fearful of returning to teaching and being attacked [,]" (Dec. 5), could be taken as support for finding causal relationship. The possible inconsistency matters not, however, as the judge adopted the expert opinion of Dr. Weiner that the employee did not have a psychiatric condition that would prevent him from working or that was causally related to work. (Dec. 7, 9.) Dr. Weiner testified that the employee did not have neurotic symptoms of phobia, fears, obsessions or compulsion and that any need for psychological treatment was related to the multiple sclerosis. (Dep. 12, 15.)
Because there are both adequate findings and evidential support, the decision is affirmed. See Antoine v. Pyrotector, 7 Mass. Workers' Comp. Rep. 337, 341 (1993), citing Amon's Case, 315 Mass. 210 (1943).
So ordered.
____________________ Sara Holmes Wilson Administrative Law Judge
____________________ Carolynn N. Fischel Administrative Law Judge
____________________ Frederick E. Levine Administrative Law Judge
Filed: May 18, 1998