Opinion
BOARD No. 073957-91
Filed: April 19, 1996
REVIEWING BOARD DECISION
(Judges Wilson, McCarthy and Fischel)
APPEARANCES
Ronald St. Pierre, Esq., for the employee
Jean M. Shea, Esq., for the insurer
Both the employee and the insurer appeal from a decision in which the administrative judge denied and dismissed the employee's claim for weekly incapacity benefits and medical benefits. We first address the employee's appeal. The employee charges that the judge erred by adopting the opinion of a physician who the judge acknowledged had used an incorrect standard for assessing causal relationship. Because we cannot discern the reasoned basis for the judge's dismissal of this case from his subsidiary findings of fact, we recommit the case for further findings.
The employee worked for the employer as a welder from 1978 to 1991, with a stipulated average weekly wage of $550.00. While welding, the employee wore a heavy metal helmet equipped with a mask. The mask was raised over the welding helmet when it was not needed. To lower the mask, the employee customarily would move his head forward quickly, "jiggling" the mask into place over his face. This movement put pressure on the employee's neck. (Dec. 3.)
The employee began to experience pain and stiffness in his neck in 1991. At that time the employee was a recreational weight lifter. The employee also noticed the pain while he was swimming. On October 6, 1991, the employee woke up with serious neck pain after having attended a wedding at which he danced one slow dance. The next day the employee reported to work, but was unable to perform his duties due to neck pain. The employee never returned to welding after that date. A few months after he stopped working, the employee experienced an aggravation of his neck pain after raking leaves. (Dec. 4-5.) The employee underwent a C5-6 anterior discectomy on May 1, 1992. (Dec. 5.) By the time of the hearing, the employee had embarked on a new career in cosmetology earning $6.50 an hour and was "essentially pain free." He expects to be given more responsibility after a year, and then to make $700.00 to $1,000.00 a week in three to five years. Id.
The employee filed a claim for workers' compensation benefits, which the insurer denied. As a result of a conference held on December 8, 1992, the insurer was ordered to pay a closed period of § 34 temporary total incapacity benefits and ongoing § 35 partial incapacity benefits. The insurer appealed the conference order to a hearing de novo. (Dec. 2-3.)
The employee was examined by a neurologist pursuant to G.L.c. 152, § 11A. The § 11A examiner noted that the employee had undergone a cervical discectomy, as well as extensive cervical degenerative changes. The § 11A examiner diagnosed cervical spondylosis with a C5-6 disc protrusion and C5-6 radiculopathy. The § 11A examiner found no causal relationship between the employee's present partial medical disability and his work as a welder. The § 11A examiner opined, "[b]ased on the absence of any specific work injury causing any increased symptomatology . . . it is judged that the diagnoses are not causally related to [the employee's] work activities." (Dec. 6.)
The judge determined that the § 11A examiner's opinion was flawed by his failure to assess causal relationship regarding the cumulative trauma experienced by the employee over the course of twelve years of welding. The judge therefore allowed the employee's motion to have the § 11A report declared inadequate, thereby enabling the parties to introduce additional medical evidence. (Dec. 6-7, 10.) See G.L.c. 152, § 11A(2). The judge, however, seemed to give weight to the § 11A examiner's reliance on the employee's history of increased symptomatology correlating to non-work activities such as swimming and the post-incident yard work. (Dec. 7.)
The administrative judge recited the medical opinion of the employee's treating physician, Dr. Michael DiTullio, to the effect that the repetitive head motions and the weight of the welding helmet probably aggravated the employee's pre-existing cervical condition. (Dec. 7.) The insurer's expert, Dr. Paul Blachman, related the employee's cervical symptoms to the non-work activities such as weight lifting and yard work, and did not causally relate the employee's welding activities to his present incapacity. (Dec. 8, 10.) The judge disregarded the opinion of the insurer's second expert, Dr. Steven Sewell, that the work of a welder may have aggravated his underlying condition, as speculative and equivocal with regard to the issue of causal relation. (Dec. 10-11.)
Although the medical opinions were not in accord, the administrative judge found, based on the medical opinions of Dr. DiTullio, Dr. Blachman, and the § 11 examiner, as well as the credible testimony of the employee and the employer personnel director, that the employee's present incapacity was not causally related to his employment as a welder. (Dec. 12-13.) The judge stated:
While arguing that the employee's welding had no effect on his neck is absurd, the clear weight of the evidence demonstrates that the injury was caused by cervical spondylosis, a degenerative disc disease, and that the aggravations were related to the four non work related incidents of weight lifting, swimming, waking up in pain after the wedding, and raking, and that any continuing disability is related to those incidents and the underlying disease. The employee's job as a welder may have contributed to the disability in some small way.
(Dec. 12.) The judge denied and dismissed the employee's claim and allowed the insurer to recoup its payments made pursuant to the conference order at the rate of $50.00 per month. (Dec. 14.)
We note at the outset that the cumulative injury involved in this case has a date of injury in October 1991, before the substantive change in the § 1(7A) definition of a "personal injury" became effective. As such, the question of whether this cumulative injury aggravated a pre-existing degenerative cervical condition is governed by the "as is" doctrine of compensability. This was the law from the inception of the Act until December 23, 1991. "[I]t is the hazard of the employment acting upon the particular employee in his condition of health and not what that hazard would be if acting upon a healthy employee or upon the average employee." Madden's Case, 222 Mass. 487, 494 (1916). The cumulative nature of the injury alleged in this case in no way removes it from the application of the "as is" doctrine.
General Laws c. 152, § 1(7A), as amended by St. 1991, c. 298, § 14, has narrowed the definition of a personal injury and now provides, in pertinent part:
If a compensable injury or disease combines with a pre-existing condition, which resulted from an injury or disease not compensable under this chapter, to cause or prolong disability or a need for treatment, the resultant condition shall be compensable only to the extent such compensable injury or disease remains a major but not necessarily predominant cause of disability or need for treatment.
See Robles v. Riverside Management Inc., 10 Mass. Workers' Comp. Rep. ___ (March 14, 1996), for our recent construction of the 1991 amendment to § 1(7A).
Unlike many workers' compensation statutes, our act does not require that injury occur "by accident," so that gradually developed injuries are compensable as well as those caused by sudden incidents. [Citations omitted.] Further, an employee may recover even when his injury is due in part to his own weakness or vulnerability; the employer must take his employee "as is." [Citation omitted.] If a condition or incident of work aggravates a preexisting health problem, the employee has suffered a "personal injury," and may recover from the employer for his entire disability, without apportionment.
Zerofski's Case, 385 Mass. 590, 592-593 (1982) (emphasis added). "As is" liability under the Act attaches for an aggravation of a preexisting medical condition, such as the cervical spondylosis and disc degeneration in this case, so long as the industrial aggravation "was even to the slightest extent a contributing cause of the subsequent disability."Rock's Case, 323 Mass. 428, 429 (1948). "That the new injury was slight and very limited in its contribution to the disability is immaterial." Long's Case, 337 Mass. 517, 521 (1958). We think that, although the last two cases cited had as their issue the "successive insurer" rule, with preexisting work related medical conditions, the reasoning is a good fit with the case of an aggravation of a preexistingnon-work related medical condition, occurring prior to December 23, 1991. Indeed, it is long established that where the harm is not wholly the result of work, but flows in large part from an already weakened physical condition, the employee is protected by the Act. "It is the injury arising out of the employment [, however minor,] and not out of disease of the employee for which compensation is to be made." Madden's Case, 222 Mass. at 494. This principle controls for injuries that predate the December 23, 1991 amendment of § 1(7A).
Try though we may, we are hard put to harmonize the law as just described with the judge's reasoning in this case. Rather than taking the employee as he found him, the judge seemed to posit a dichotomy: either the employee's incapacity was caused by non-work-related aggravations of a preexisting medical condition, or the preexisting condition was aggravated by the cumulative work trauma. He stated:
The employee had at least three non work related traumas which aggravated his underlying degenerative disease. . . . One must argue that the non work related aggravations should be ignored or discounted, in order to find that the cumulative traumas of welding aggravated the previously asymptomatic condition.
(Dec. 11-12.) There is, however, no inconsistency in arguing multiple causes relating to the employee's incapacity, some non-work related, some work related. The employee's non-work-related aggravations of the subject cervical spondylosis are, quite simply, as much a part of his preexisting medical condition as the disease itself. It does not matter if nearly all of the employee's incapacity relates to the non-work activities of recreational weight lifting, swimming and dancing one slow dance at a wedding. As long as the alleged work activity of quickly moving his head forward and jiggling the mask of the heavy welding helmet into place over the course of twelve years "was even to the slightest extent a contributing cause of the subsequent disability[,]" Rock's Case, supra (emphasis added), the insurer will be obligated to pay for that entire disability. See Zerofski's Case, supra. We must recommit this case to the judge to make further findings on the issues of liability and causal relationship. We note that, to the extent that the judge continues to find that "arguing that the employee's welding had no effect on his neck is absurd," (Dec. 12), he must find the insurer liable for that industrial injury, if he also finds that the welding job presented an identifiable condition that is not common and necessary to a great many occupations. See Zerofski's Case, supra at 594-595. If, on the other hand, the judge finds that the cumulative trauma at work boreno causal relation to the employee's cervical incapacity, then he must specifically and definitely say so.
The non-work activity of raking leaves, which was subsequent to the last day of work/date of injury in this cumulative injury case, is irrelevant in the determination of liability. On recommittal, if the issue of the extent of incapacity arises, the judge must assess whether the activity of raking leaves was reasonable and normal, and not performed negligently. If so, there will be no break of the causal link between the industrial injury and the employee's incapacity. See Twomey v. Greater Lawrence Visiting Nurses Assoc., 5 Mass. Workers' Comp. Rep. 156, 158 (1991). See also Davis's Case, 304 Mass. 530 (1939) (insurer still liable when employee's use of water reactivated industrial injury of dermatitis);Gulczynski v. Granada Hospital Group, 7 Mass. Workers' Comp. Rep. 151, 152-153 (1993), aff'd after remand, 9 Mass. Worker's Comp. Rep. 449 (1995).
On recommittal the judge must also undertake an analysis of this industrial injury consistent with Zerofski's Case, supra. "To be compensable, the [industrial injury] must arise either from a specific incident or series of incidents at work, [footnote omitted] or from an identifiable condition that is not common and necessary to all or a great many occupations. [Footnote omitted.]" Id. at 594-595. The reaggravation must be more than wear and tear. Id.
The insurer appeals the judge's order of recoupment of compensation paid pursuant to the conference order. In our view, the judge's order of recoupment was wholly within the scope of his authority, and well within the spirit of G.L.c. 152, § 11D(3). We summarily reject the insurer's contentions to the contrary, noting that the insurer's recoupment claim was stated on the record, (Tr. 3; Dec. 1), and we affirm that part of the decision, pending the outcome of the case on recommittal.
So ordered.
__________________________ Sara Holmes Wilson Administrative Law Judge
___________________________ Carolynn N. Fischel Administrative Law Judge
___________________________ William A. McCarthy Administrative Law Judge
Filed: April 19, 1996