Opinion
BOARD No. 3093392
Filed: March 27, 1996
REVIEWING BOARD DECISION
(Judges Maze-Rothstein, Kirby and Smith)
APPEARANCES
James Brownell, Esq., for the employee
Jean Shea, Esq., for the insurer
The employee appeals a decision that dismissed her claim for G.L.c. 152, § 34 total temporary incapacity and § 30 medical benefits, charging the decision was arbitrary, capricious, and contrary to law. Finding a key aspect of the decision inadequate for appellate review, we vacate the decision and recommit the case for further findings consistent with this opinion.
For nearly six and a half years from February 1986, Maria Martinez was employed at Tuttie Cleaners where she pressed and ironed garments until June 19, 1992, when she left work due to an alleged cumulative trauma injury to her right arm and shoulder. The employee filed a claim for continuous § 34 temporary total benefits to commence on June 20, 1992. By a conference order she was awarded the total incapacity benefits she sought from June 20, 1992 to August 20, 1992, and § 35 partial incapacity benefits thereafter. The parties cross-appealed to a hearing de novo. (Dec. 2.)
At hearing, the employee's and the employer's testimony conflicted regarding the nature of her employment. The employee testified that about a year and a half before she stopped working, she was required to use a much heavier hand iron which caused her to develop pain in her neck, right lower and upper back, right shoulder, and the right side of her forehead. She also testified that she complained of her pain to the company president and her supervisor. (Dec. 3.) Contrarily, the company president testified that the weight of the steam irons used by his workers never changed and that the employee voiced no complaints about pain while at work. (Dec. 4.)
The employee was examined pursuant to G.L.c. 152, § 11A. The examiner's impression was that the employee suffered from musculoskeletal pain syndrome. He opined that her pain related causally to her work. (Statutory Ex. A.) The doctor based his opinion on the employee's reported history, with particular focus on the weight change occasioned by the requirement to use heavier equipment in her repetitive work. The doctor further stated that if the history was otherwise, that repetitive work without a change in equipment could still cause cumulative trauma. Though he could not independently verify her complaints in August 1993 when he saw her, as did the employee's physician Dr. Ramos in 1992, she was "nevertheless" in a "repetitive job setting" with or without a change in the weight of her work tools. (Dec. 4-5; Dep. 28-30.) Neither party moved for the admission of additional medical evidence due to the impartial report's inadequacy or the complexity of the medical issues. (Dec. 2.)
Although the impartial examination took place after the lay testimony was taken at hearing, the employee does not challenge the errant sequence. See § 11A(2) ("No hearing shall be commenced sooner than one week after such [impartial medical] report has been received by the parties.");O'Brien v. Blue Cross/Blue Shield, 9 Mass. Workers' Comp. Rep. 16 (1995).
In the decision, the judge specifically discredited the employee's testimony regarding the change in the weight of the equipment that she used. The judge then found that the § 11A doctor could not offer a causal opinion, when the factor of a change to heavier equipment was eliminated from the history of the injury. (Dec. 5.) As a result, the judge concluded that the employee had failed to prove that she had suffered a compensable injury, and dismissed her claim. (Dec. 6.)
On appeal, the employee's major contention is that an alternative means of causation raised in the medical examiner's deposition was not the subject of a finding. (Employee's brief 3.) We agree. An administrative judge is free to adopt all, part, or none of an expert medical opinion, but he must give sound reasons for rejecting an uncontradicted medical opinion.Amon's Case, 315 Mass. 210 (1943). The § 11A examiner causally related the employee's pain to her work, but based his opinion on the history given to him by the employee, that a change to a heavier iron caused her pain. (Statutory Ex. A.) Having rejected the history given by the employee, it necessarily followed that the judge would not adopt this aspect of the doctor's opinion on causal relation. The judge was within his authority to make such findings.
The problem with the decision is that discrediting a portion of the employee's history (i.e. the change to a heavier weighted iron) left the question of causal relation only partially determined. What remained uncontroverted after the foregoing findings was the employee's "repetitive job setting that had no change in tasks, but nevertheless was a repetitive job setting". (Dep. 30.) Those facts as stated by the § 11A doctor were not medically assessed by him. He confirmed that complaints do arise out of such repetitive job settings, but did not offer a causal relationship opinion for the employee's specific repetitive task work environment. (Dep. 28-30.) Although the employee did not move for a declaration that the impartial report was inadequate or that the medical issues in the case were complex, at this juncture the judge had options. Providing no response to a contested issue was not among them.
Under G.L.c. 152, § 11B the judge was required to decide each contested issue. The case presented alternative theories of repetitive injury; one with a change in the weight of the work tool and the other without. It was not enough to find against the employee on one theory, leaving the other without a response. As the medical issues were not so simple they could be decided without medical expertise, (compare Lovely's Case 336 Mass. 512, 516 (1957)) and given the nature of the § 11A examiner's causal opinion on the alternate factual scenario, the judge could have either augmented the § 11A opinion, by crediting or discrediting the employee's complaints of pain or he could have required additional medical evidence, or he could have done both. See Josi's Case, 324 Mass. 67, 69 (1949); Bedugnis v. Paul McGuire Chevrolet, 9 Mass. Workers' Comp. Rep. ___ (December 29, 1995). He chose none of these avenues, which left the decision as an insufficient response to the issues raised. See G.L.c. 152, § 11A(2) (judge may authorize, on his own initiative, that additional medical testimony be introduced upon finding report inadequate or medical issues complex).
The decision is ambiguous on what aspect(s) of the employee's testimony the judge discredits. In this regard it reads: "I do not find the testimony of Ms. Martinez to be credible and I specifically do not credit her testimony that she was required to use a heavier iron about a year and a half before she stopped working." (Dec. 4.) We do not know whether by this the judge meant he discredited every last thing the employee said or whether there were some aspects that were believable. If the judge disbelieved everything the employee said, there would be no real reason to specifically discredit her testimony regarding the weight of the iron she used. Later in the general findings, where ordinarily the factual findings and legal conclusions come together with a sharper focus, the decision reads: "Based on the testimony of the employee, which I do not find to be entirely credible. . . ." (Dec. 6.) (Emphasis added). Here hoped for clarification meets with expanded ambiguity. If the judge found the employee's testimony was not "entirely" credible, perforce some was and some was not. We are left asking which was which.
Where the provisions of § 11A authorize sua sponte action at the discretion of the adjudicator, he becomes the gate keeper of the sufficiency of the medical evidence. Lebrun v. Century Markets, 9 Mass. Workers' Comp. Rep. ___ (November 28, 1995). Thus, where § 11A applies and the facts in evidence present alternative theories of liability, a judge must take care to clearly identify what is and is not believable and found as fact and whether the medical evidence statutorily put before him provides an adequate basis to respond to the various theories in contention. Citing a portion of our G.L.c. 152, § 11C standard of review, the dissent overlooks that we are not reversing the decision. Ignored is the quality control portion of that standard, which allows for recommittal "when appropriate". Id. Further, the dissent selects from the record certain evidence that could support one outcome. While this foray into the record may identify support for the finding the judge did not make, he nevertheless did not make it. We offer no prescription. Indeed, on the evidence as it currently stands the outcome could have gone either way.
The judge had before him evidence, through the employer's credited testimony, that the employee performed repetitive work with her right arm for six and a half years. Even though he rejected the employee's assertion that a change to a heavier iron at her repetitive work precipitated her injury, he still had to determine causal relation with the non-change set of facts as that scenario matched with the doctor's position that were her pain to be believed, repetitive work without a weight change could cause the complained of symptoms. (Dep. 30.) We therefore vacate the decision and remand the case for the assessment of the alternate causal theory. The judge may take additional testimony as he see fit to render a decision on the remaining issue in contest.
________________________ Susan Maze-Rothstein Administrative Law Judge
________________________ Edward P. Kirby Administrative Law Judge
Filed: March 27, 1996
I am fully cognizant of the fact that the majority opinion does not reverse the decision and merely remands. I disagree with the necessity of remand because the judge has made the essential factual findings. Although perhaps the decision could have been more stylistically beautiful, I dissent from my colleagues' view that it failed to address the issues presented. The judge specifically adjudicated the employee's claim of a cumulative trauma injury. (Dec. 6.) His subsidiary findings are adequate to provide for proper appellate review of the issue presented by the employee. Therefore it is inappropriate to remand for further findings of fact. Because the decision was within the scope of the judge's authority, not arbitrary or capricious, nor contrary to law, it should be affirmed. G.L.c. 152, § 11C.
Every judge's decision, including decisions of the reviewing board, could be criticized for some grammatical or stylistic shortcomings. Such shortcomings do not render a decision so defective that it must be vacated and redone. The § 11C "quality control" function of recommittal is appropriately exercised only when the appellate panel cannot understand the decision sufficiently to provide proper appellate review. See Johnson's Case, 355 Mass. 782, 783 (1968) (findings need not be detailed or searching but rather need only be sufficient to allow determination with reasonable certainty whether the judge applied correct principles of law).
The sole issue presented by the employee on appeal is whether she sustained her burden of proof and therefore should be awarded further benefits. The question of whether a litigant has met a burden of proof is a question of fact for the administrative judge. Section 11C limits our review of that decision. The scope of review is whether there is any evidence, including all rational inferences of which the evidence is susceptible, upon which the finding of non-persuasion could have been made.Degregorio's Case, 6 Mass. Workers' Comp. Rep. 213, 215 (1992) citingBuck's Case, 342 Mass. 766, 769, 175 N.E.2d 369 (1961); Amon's Case, 315 Mass. 210, 215, 52 N.E.2d 582 (1943). It is therefore necessary to review the record to determine the support for the factual finding of non-persuasion which the judge did clearly make.
The arbitrary and capricious standard of review requires only that there be a rational basis for the decision. See Howe v. Health Facilities Appeals Bd., 20 Mass. App. Ct. 531, 534, 481 N.E.2d 510, 512 (1985). The record does contain evidence which rationally supports the judge's factual conclusion of non-persuasion.
The ability of the reviewing board to weigh evidence, see Lettich's Case, 403 Mass. 389, 530 N.E.2d 159 (1988), was removed by St. 1991, c. 398, § 31 which amended G.L.c. 152, § 11C.
The judge found that the employee's testimony was not credible. (Dec. 4.) He specifically did not credit her testimony about the change in her working conditions. Id. By crediting the testimony of an opposing witness, the judge found that the employee never complained to her boss about an injury to her back and shoulder or neck. Id.
The judge made further subsidiary findings of fact: The employee did not respond to the light duty work offered, which would have paid equivalent to her pre-injury average weekly wage. Id. The impartial medical examiner could find no objective signs of injury. (Dec. 5.) The doctor noted a number of Waddell signs during his examination. Id. The doctor's conclusion that the employee suffered from a chronic musculoskeletal pain syndrome was based on the employee's history, which the judge rejected. Id.
This finding is supported by the impartial medical examiner's report and deposition testimony. (Stat. Ex. A; Dep. 43-46.) In addition, the doctor testified: "she had findings on exam which are nonanatomical in nature which means that she was complaining about pain with movements that really should really (sic) give her no pain." (Dep. 14.) The doctor further explained the comment in his report that voluntary thorocolumbar range of motion was only minimal in all planes of movement, meaning: "she didn't want to bend her low back, flex her low back or move her low back in the planes of movement which a low back has." (Dep. 43.) He opined that this was a voluntary restriction. Id.
With respect to the alternate theory of injury discussed in the majority opinion, the judge found that "Dr. Sciascia stated that if the history was otherwise [than the employee had told him] he could not comment as to the cause of her complaints." (Dec. 5.) This finding is supported by the doctor's testimony:
I make it very clear in this particular report that I'm basing the diagnosis of this person's problem on the history of what happened in the workplace because I have no independent way of verifying her complaints. To the extent that the history fits the general impression that was left me with the records I reviewed is valid, then my opinion stands, but I make that very clear that I'm offering an opinion and not a diagnosis. And therefore, to the extent that the assumptions change, my opinion would move from one of medical probability to one in which I couldn't offer a particular opinion as to what exactly her complaints were due to.
(Dep. 28, emphasis supplied.)
The judge's factual finding is further supported by the doctor's testimony that if the history of a change in occupational use of the limb were inaccurate, then the question would become whether the employee suffered a "cumulative trauma disorder as Dr. Ramos had alluded to in July of '92." (Dep. 29-30.) He testified: "In that particular circumstance, the only thing I could say is that repetitive trauma complaints arise; however, in the presence of Waddell signs, I would not be able to independently verify the patient's complaints. I would be in the same circle now; however, under those particular assumptions [that there was no change in occupational use of the limb] . . . I would say it would really become a nonmedical determination." (Dep. 30) (emphasis supplied.)
More support for the judge's factual finding appears later in the doctor's deposition. The doctor repeated: "my main conclusion for believing that I could state with some medical certainty with regard to this individual had to do with the circumstances that she related to the onset of her problem. That was the core reasoning I used in this individual.Absent that, I view this case as one in which there is no objective basis to make a determination and it really has to be a nonmedical determination if those assumptions are invalid." (Dep. 58-59.) (emphasis supplied.)
It is clear from the decision denying the claim that the judge made the "nonmedical" credibility call the doctor testified about and found the employee not credible. (Dec. 4, 6.) This credibility finding is final; it is not within the the reviewing board's authority to substitute its judgement. Brandao v. Joseph Pollack Corp., 9 Mass. Workers' Comp. Rep. 74, 75 (1995). The factual finding of incredibility is legally sufficient to meet and overcome the impartial medical opinion.
The decision here was factually warranted and not arbitrary or capricious in the sense of having an adequate evidentiary and factual support and disclosing reasoned decision making within the particular requirements governing a workers' compensation dispute. Therefore it should be affirmed. Scheffler's Case, 419 Mass. 251, 258 (1994).
By vacating the decision and remanding, the majority opinion rewards the employee for giving the impartial medical examiner an inaccurate history. This result begs common sense. The impartial medical examination system assumes that the impartial doctor will be provided with "all relevant medical records, medical reports, medical histories, and any other relevant information requested" by the doctor and that the history given by the employee will be accurate. G.L.c. 152, § 11A(2); see Liacos, Handbook of Massachusetts Evidence, § 8.4.1 (discussing statutory exceptions to the hearsay rule for medical records based on "a guarantee of trustworthiness") and § 8.14 (discussing the exception to the hearsay rule for declarations as to physical condition made to obtain medical treatment).
Responsibility for the accuracy of the medical evidence rests on the employee, who always has the burden of proof. It never shifts to the judge.Veale v. Charles Stark Draper Lab., Inc., 8 Mass. Workers' Comp. Rep. 14, 16 (1994). Under G.L.c. 152, § 11 and 11A(2), the judge has thediscretionary power to obtain additional evidence which he finds necessary to reach a decision. Thompson v. Sturdy Memorial Hosp., 10 Mass. Workers' Comp. Rep. ___, slip op. at 5 (February 20, 1996);Dupras v. Water Div. of Millipore, 10 Mass. Workers' Comp. Rep. ___, slip op. at 5-6 (January 5, 1996). The judge did not chose to exercise that discretionary power here and was not constitutionally compelled to do so. Compare George v. Chelsea Housing Authority, 10 Mass. Workers' Comp. Rep. ___ (lack of a medical opinion of the employee's condition during a period of his claim, coupled with the denial of the motion for additional medical evidence, rose to a constitutional deprivation of due process). Nor did the employee request additional medical evidence either at the hearing or appellate level. There is no reason to recommit the case and allow it now.
In her brief the employee does not ask for relief on the basis of the judge's failure to sua sponte authorize additional medical evidence. Her argument is that the impartial opinion is sufficient to compel an award in her favor.
Where an employee provides an erroneous history to the impartial medical examiner and thus fails to obtain a medical opinion which supports the claim, there is no legal logic in urging the judge to sua sponte find the impartial medical examiner's report inadequate or the case complex. The result should be that reached by the administrative judge: case closed; claim denied; decision affirmed.
________________________ Suzanne E.K. Smith Administrative Law Judge