Opinion
BOARD No. 05155293
Filed: April 9, 1997
REVIEWING BOARD DECISION
(Judges McCarthy, Smith and Maze-Rothstein)
APPEARANCES
George N. Keches, Esq., for the employee on appeal.
Joann D. Walter, Esq., for the employee at hearing.
Ann P. Hagearty, Esq., for the insurer.
The employee appeals from a decision that found she had failed to prove a causal relationship between her emotional disability and her work-related back injury of November 29, 1993. Because the judge 1) relied on an opinion of the impartial medical examiner which mischaracterized an underlying medical record and 2) used the wrong standard of causation in assessing the emotional disability, we recommit the case. G.L.c. 152, § 11C.
The employee suffered a back injury in November 1993 while working as a nurse's aid. (Dec. 3.) She developed a number of symptoms, which she claimed were related to the work injury: numbness and paralysis of both legs requiring her to use a wheelchair, incontinence, dizziness, numbness in her arms, swollen tongue and headaches. (Dec. 3-4.) The insurer paid G.L.c. 152, § 34 temporary total incapacity benefits, without prejudice, from November 30, 1993 until March 24, 1994. (Dec. 2.) Ms. Mendonca then filed a claim for further benefits. When the claim was denied at a § 10A conference, the employee appealed to a hearing de novo. Id.
At hearing the parties stipulated that the employee had suffered an industrial injury on November 29, 1993. Id. On October 31, 1994, she was examined by Dr. Earl Hoerner, M.D., a specialist in orthopedic, physical and rehabilitative medicine, pursuant to G.L.c. 152, § 11A. Id; (Hoerner Dep. 4-5.) The judge adopted the doctor's diagnoses: chronic degenerative joint disease of the thoracic and lumbar spine, chronic pain syndrome, morbid obesity, depression, symptom magnification, and myositis of the lumbar and thoracic spine related to a sprain/strain. (Dec. 4-5; Dr. Hoerner Dep. 8.) Also adopted was the § 11A doctor's opinion that the back sprain related causally to the November 29, 1993 industrial accident but that it had resolved, as had the employee's chronic pain syndrome, by the time of § 11A examination. (Dec. 4-5.)
When a claim or complaint involves a dispute over medical issues a § 11A medical examination is required. G.L.c. 152, § 11A. But see, 452 Code Mass. Regs. 1. 10 (5)(6)(7).
The § 11A physician had attributed the employee's ongoing difficulties to preexisting conditions, namely degenerative disc disease, depression, and morbid obesity. The diagnosis of pre-existing depression was based on the doctor's review of one Massachusetts General Hospital record which briefly described a psychiatric evaluation performed in June 1994. (Dec. 5.) Doctor Hoerner gave the following interpretation of that record:
On psychiatric evaluation, it was the stated impression that the [employee] did have a reactive major depression which was related to an approximate two hundred (200) pound weight gain over the prior four years and fifty pounds during the past year. At the time that she was seen at the Massachusetts General Hospital, she weighed ± 350 pounds and was 5'7" tall.
(Dr. Hoerner Dep. 5; Dec. 5.)
The employee was allowed to introduce additional medical evidence pursuant to G.L.c. 152, § 11A(2). She introduced the deposition of her treating physician, Dr. Eugenio Martinez, a specialist in physical medicine and rehabilitation. (Dec. 2; Martinez Dep. 4.) Dr. Martinez opined that the employee suffered from work-injury related chronic pain syndrome and the psychological condition of conversion disorder in which physical symptomatology is inconsistent with objective physiological findings. (Martinez Dep. 20, 25, 30, 34.) When Doctor Martinez began treating the employee, he referred her to a consulting neurologist, Dr. Jeremy Worthington, for a neurological opinion. (Dec. 5-6.) Although Dr. Worthington never testified in this proceeding, Dr. Martinez recalled a telephone conversation in which Dr. Worthington said that the employee might be malingering or that her condition could be factitious. (Dec. 6; Martinez Dep. 19-20.)
The judge adopted Dr. Martinez's opinion that a conversion disorder is the result of unconscious elements which drive physical symptoms. (Dec. 6.) Although Dr. Martinez opined that the employee's conversion disorder was precipitated by the industrial accident, the judge noted that the doctor also acknowledged the possibility of spontaneous onset in some individuals. Id.
After weighing the medical evidence, the judge concluded that, while the employee indisputably was totally medically disabled, her present medical condition was not related to the industrial injury, which he found caused only by the since resolved back sprain/strain. (Dec. 7-8.) The judge stated that he could not ascertain whether the employee was suffering from a work-related conversion disorder or depression, or whether her condition was related to malingering or a factitious disorder. (Dec. 6-7.) He then concluded "that the employee has failed to produce sufficient evidence to support her claim that, more probably than not, she suffers a psychiatric disability which had as its pre-dominant contributing cause the incident of November 29, 1993." (Dec. 7.) (Emphasis added). Therefore, he awarded only a closed period of total incapacity weekly benefits from the November 30, 1993 injury date to the October 31, 1994 § 11A examination date together with § 30 medical benefits for the employee's back sprain/strain. (Dec. 9.) We have the employee's appeal from this decision.
Among the arguments raised, the employee submits that the judge mischaracterized the medical evidence and the § 11A doctor mischaracterized a medical record thus, rendering the decision arbitrary and capricious. Though it was not the judge's mischaracterization, we agree that the determination of a failure to prove causal relationship between the industrial accident and the employee's psychiatric condition is premised on evidence lacking a proper foundation.
Where specific facts are in controversy, an expert opinion must be based on facts observed by himself or within his own knowledge; evidence in the record or which the parties represent will be presented during the course of the proceedings; or facts and data not in evidence, including hearsay, if the facts and data are independently admissible and constitute a permissible basis for formulating an opinion. Sacco v. Roupenian, 409 Mass. 25. 28-29 (1990); Department of Youth Services v. A Juvenile, 398 Mass. 516, 527-528 (1986). An expert may state the information on which he relied to provide the foundation of his testimony.Anthony's Pier Four v. HBC Assoc., 411 Mass. 451, 481 (1991);Nancy P. v. D'Amato, 401 Mass. 516, 524 (1988) (where an expert has stated the information on which he relied, such facts are not admitted to prove their truth and the trier of fact may not rely on them in making findings). Absent a proper foundation, an expert's opinion is vitiated. See Department of Youth Services, supra at 531-532; Sacco, supra at 29-32. Where the factual predicates upon which an expert's opinion is based do not exist, are not fairly interpreted, or are mischaracterized, and not later cured, an opinion is fatally defective and cannot have probative valve because of the lack of proper foundation. Buck's Case, 342 Mass. 766, 770-771 (1961).
In Buck's Case, supra, the court held that where an expert's opinion was, in part at least, based on the omission of certain facts and misstatements of others, however unintentional, and the errors went to a material issue, that opinion can have no probative valve. Buck's Case, supra at 771; Molloy v. Kizelewicz, 343 Mass. 402, 405-406 (1961) (where confusion or prejudicial ambiguity in regards to hospital record, expert's opinion may be discarded). The Massachusetts Appeals Court stated in Collins's Case, 21 Mass. App. Ct. 557 (1986) that where a hearsay statement about a critical matter in a medical report that was not in evidence may have influenced, at least in part, the opinions of two doctors, their reports were without value in so far as the opinions were based in any way on those facts. Id. 560-564.
With regard to the employee's psychiatric condition the judge directly quoted and relied on the § 11A doctor's interpretation of a June 3, 1994 Massachusetts General Hospital Discharge Summary.
The decision reads:
The only underlying records concerning Dr. Hoerner's diagnosis of depression originate from Massachusetts General Hospital where Ms. Mendoca [sic] underwent a battery of tests in June of 1994, including a psychiatric evaluation. This evaluation resulted in a diagnosis of reactive major depression ". . . related to an approximate two hundred (200) pound weight gain over the prior four years and fifty pounds during the past year."
(Dec. 5; Dr. Hoerner Rep. 5.)
The judge quoted this part of the impartial report and relied on it in reaching his conclusion that the employee did not meet her burden of proof on the psychiatric part of her claim. See (Dec. 5, 7-8.)
The employee argues, and we agree, that § 11A physician mischaracterized the contents of that record. The employee has appended to her brief on appeal a copy of the subject hospital record. That document states, in pertinent part:
Section 11A requires the submission of medical documentation to the examining doctor but the excludes it from consideration by the judge, making the § 11A report the only opinion to be considered (unless an inadequacy or complexity ruling is entered). This case presents another wrinkle because although additional medical evidence was allowed and the employee submitted more to support her burden on causation, it was not until the decision was filed that the judge's reliance on the § 11A's erroneously grounded opinion came to light. This problem creates particular pitfalls for practitioners peculiar to the § 11A procedure. See O'Brien's Case, 424 Mass. 16, 22-23 (1996). Given this circumstance, in part due to the statutory scheme itself, and since the insurer does not question the authenticity of the hospital record appended to the employee's brief, we treat it as authentic. See also Phillip's Case, 41 Mass. App. Ct. 612 (1996) ("It is clear that the board, in its discretion, may pass on issues not previously argued before an administrative judge".)
[The employee] had a Psychiatry evaluation while she was here in the hospital which revealed the story of her previous marriage and her subsequent weight gain over the past four years of approximately two hundred (200) pounds. However, the psychiatrist reflected mostly on the lack of any analyzable secondary gain and felt that she was unlikely to be suffering from a conversion disorder. They did, however, notice that she did have a reactive major depression and recommended starting her on Zoloft 50 mg. q. a day which she has tolerated well and reports some improvement on.
(Employee's Brief, Ex. A, 3.)
The § 11A doctor read this to mean that the employee's reactive major depression related to her preexisting morbid obesity due to a four year period of weight gain. In his assessment, "[t]he [employee's] present [disability] status is in relationship to the depression and the morbid obesity . . . ." (Dr. Hoerner Rep. 9.) Based on the supposed connection of depression to her weight gain, the doctor extrapolated that the depression preexisted the industrial accident. (Statutory Ex. 9.)
The § 11A medical opinion connecting the depression to obesity is based on a misreading of the discharge summary. This summary, which is dated some seven months after the industrial injury, simply does not say what the impartial physician says it does. It does not relate the finding of reactive major depression to the employee's weight gain. The depression, in fact, is referred to entirely in the present without reference to the employee's mental state preceding the industrial injury. The hospital record cannot be read to establish that the depression preexisted the work injury.
An opinion premised on a logical defect central to the conclusion reached, lacks a sound foundation, is speculative and carries no probative value. See King's Case, 352 Mass. 488, (1967). Thus, where a § 11A opinion is founded on a mischaracterization of a medical record, that aspect of the opinion not only loses the prima facie weight conferred on it by statute, it loses all weight and must be excluded. See Cook v. Farm Stores, Inc., 301 Mass. 564, 567 (1938) (where prima facie conclusion and its basis is such that they cannot stand together, the prima facie conclusion is of no evidential value); and seeMendez v. The Foxboro Co., 9 Mass. Workers' Comp. Rep. 641, 645-646 (1995) (applying Cook standard to § 11A). The finding relying on a mischaracterization of no evidentiary value must be viewed as an arbitrary and therefore, reversible error. SeeChadwick v. Chadwick Greenhouse, Inc., 9 Mass. Workers' Comp. Rep. 12, 14 (1995) [citing King's Case, 352 Mass. 448 (1967)];Bonneau v. Acme Automotive Center, 7 Mass. Workers' Comp. Rep. 207, 208 (1993).
Because, on this record, it is impossible to ascertain whether, or to what extent, Dr. Hoerner's misreading and mischaracterization of the hospital report influenced his causation opinion, the judge's decision flowing therefrom cannot stand. See Sacco, supra at 29-30 (need sufficient factual basis for opinion); Toubiana v. Priestly, 402 Mass. 84, 91 (1988).
There is a second foundational error in the decision. The judge relied on the possibility of malingering and a factitious disorder to deny the emotional disability claim when the supporting medical evidence was no more than a reference to a telephone conversation between Drs. Martinez and Worthington. (Martinez Dep. 19.) This is an inadequate evidentiary foundation from which to even consider these as genuine "diagnoses." Moreover, inadmissible hearsay conversations cannot be relied upon by the trier of fact in making findings. Grant v. Lewis/Boyle, Inc., 408 Mass. 269, 272-273 (1990) (although proper for doctor to testify that he relied on the reports of other physicians in reaching an opinion, it is not proper to introduce their out-of-court diagnoses unless they come within an exception to the hearsay rule); Nancy P. v. D'Amato, 401 Mass. 516, 524 (1988) (where expert states information on which he relied, such facts are not admitted to prove their truth and trier may not rely on them in making findings). Reliance on otherwise inadmissible statements may be reversible error even in the absence of an objection. P.J. Liacos, Handbook of Massachusetts Evidence § 7. 10. 3. at 422 16th rev. ed. 1994, citingCommonwealth v. Martin, 17 Mass. App. Ct. 717, 725 (1984) (privileges). Compare Commonwealth v. Pikul, 400 Mass. 550, 555 (1987) (where medical expert testified that he based his opinion on consultation with other physicians, opinion had proper foundation because the two doctors testified).
In addition, there was no report of Dr. Worthington placed in evidence and Dr. Martinez neither relied on nor adopted Dr. Worthington's conjectures regarding the employee's good faith. (Martinez Dep. 20.) As the analysis of causal relationship relied at least in part on speculation which was hearsay, we must recommit the case for the judge to reexamine the medical evidence without considering Dr. Worthington's hearsay views.
We reverse the finding of no causal relationship and recommit the case for further findings on that issue. See G.L.c. 152, § 11C. The judge on recommittal must determine whether the depression is causally related to the industrial injury, without relying on the impartial physician's erroneous mischaracterization of the discharge summary and without considering Dr. Worthington's purported "diagnoses".
Finally, we comment on the correct causation standard to be applied. In finding the employee failed to show the work injury was the "predominant contributing cause" (Dec. 7) the judge used the wrong standard to determine the compensability of the employee's mental disability. This case involved a mental disability arising as a sequelae to a work-related physical injury, which is governed by the "as is" doctrine of causation and not the § 1 (7A) predominant contributing cause standard. As we stated in Antoine v. Pyrotector, 7 Mass. Workers' Comp. Rep. 337, 341, n. 1 (1993), "[w]here . . . the workplace event led to a physical injury, any emotional illness causally related to the physical injury is compensable." (Emphasis added). In Cirignano v. Globe Nickel Plating, 11 Mass. Workers' Comp. Rep. ___ (January 17, 1997), we further explained:
G.L.c. 152, § 1 (7A), as amended by St. 1991, c. 398, § 14, states, in pertinent part:
Personal injuries shall include mental or emotional disabilities only where the predominant contributing cause of such disability is an event or series of events occurring within any employment.
Mental injuries that derive from compensable physical injuries are not governed by the § 1 (7A) standards for mental harm that arises directly from work events. See Fitzgibbons' Case, 374 Mass. 637 (1978). A mental disability that is but a sequela of a physical work injury is a link in an uninterrupted chain of causation, and must be evaluated under causal chain standards. Id. at 633-637.; see Gulczynski v. Granada Hosp. Group, 7 Mass. Workers' Comp. Rep. 151, 152 (1993). . . .
In identifying the links in a causal chain, adjudicators should apply a "but for" analysis. See J.R. Nolan L.J. Sartorio. Tort Law § 226, at 370-374 (2nd ed. 1989) (discussing "but for" and proximate cause). See also Roberts v. Southwick, 415 Mass. 465, 473 (1993). The judge must ask "but for the injury would the contended [emotional] condition have occurred?" Where evidence reveals no explanation or intervening cause beyond the industrial injury, it can safely be concluded that the [emotional] condition in contest is yet another link extending the causal chain.
Cirignano, supra at ___. (Emphasis in original). See also Murphy v. Commercial Union, 10 Mass. Workers' Comp. Rep. 263, 267-269 (1996). As such, the judge erred when he imposed the § 1 (7A) standard of compensability for emotional disabilities that arise specifically from work place events. See § 1 (7A), supra. at n. 2. The judge on recommittal should analyze this mental claim under simple causation standard.
Accordingly, because the causation finding is based on two errors of law, we reverse it and recommit this case for further proceedings consistent with this opinion.
So ordered.
__________________________ Administrative Law Judge Susan Maze-Rothstein
__________________________ Administrative Law Judge William McCarthy
Filed: April 9, 1997
I would affirm the judge's decision because the record does not compel a contrary result as a matter of law. See G.L.c. 152, § 11C. The judge properly construed the absence of evidence against the employee, who had the burden of proof. He did not misunderstand the evidence. Because the judge rationally concluded as a fact that there is no causal relationship between the work injury and the employee's mental disability, it is irrelevant whether the § 1 (7A) heightened causal standard for mental disability applies.
Section 11C provides in pertinent part: "The reviewing board shall reverse the decision of an administrative judge only if it determines that such administrative judge's decision is beyond the scope of his authority, arbitrary or capricious, or contrary to law (emphasis supplied)." G.L.c. 152, § 11C, as amended by St. 1991, c. 398, § 31.
For the first time on appeal, the employee raises the issue that the impartial physician misconceived the contents of the medical records that he was given to review pursuant to G.L.c. 152, § 11A(2). During the deposition of the impartial medical examiner, the employee could have challenged the doctor's understanding of the discharge summary, as reflected in his report. She did not avail herself of that opportunity.
Section 11A(2) requires the employee "to submit to such examiner all relevant medical records, medical reports, medical histories, and any other relevant information requested." G.L.c. 152, § 11A(2), as amended by St. 1991, c. 398, § 30.
The judge allowed additional medical evidence concerning the employee's alleged chronic pain syndrome and conversion disorder. (Dec. 2.) See G.L.c. 152, § 11A(2); O'Brien's Case, 424 Mass. 16, 23 (1996). She therefore had the opportunity to offer the discharge summary and its underlying psychiatric report as exhibits. However, she failed to do so, offering only the deposition of her treating physician, a specialist in physical medicine and rehabilitation. She offered no evidence from the psychiatrist who evaluated her and whose records she now claims were misconstrued by the impartial medical examiner. The employee should not be permitted to overturn the decision at the appellate level when she failed to offer this critical evidence at the hearing level.
Section 11A(2) provides in pertinent part: "the administrative judge may . . . authorize the submission of additional medical testimony when such judge finds that said testimony is required due to the complexity of the medical issues involved or the inadequacy of the report submitted by the impartial medical examiner." G.L.c. 152, § 11A, as amended by St. 1991, c. 398, § 30.
The reviewing board has no power to find facts and is limited to a review of the record before the administrative judge. Section 11C provides no authority for the Reviewing Board to go outside of the hearing record to determine that the impartial medical examiner misconceived the medical records provided by the parties pursuant to G.L.c. 152, § 11A(2). G.L.c. 152, § 11C; see 452 CMR 1.11 (5) ("The decision of the administrative judge shall be based solely on the evidence introduced at the hearing").
See Daly v. City of Boston School Dept. fn. 7, 10 Mass. Workers' Comp. Rep. 252, 262, 1996 WL 143510 at 8 (1996).
The law prohibits the reviewing board's reliance on the unauthenticated hospital discharge summary appended to the employee's brief. It was not offered into evidence before the administrative judge. The employee has not moved to reopen the evidence to admit this document. It is not even clear from this record that, should she do so, she would be successful. See McElhinney v. Massachusetts Bay Tranp. Auth., 9 Mass. Workers' Comp. Rep. 349, 352 (1995) and Dunphy v. Shaws Supermarket, 9 Mass. Workers' Comp. Rep. 473, 475 (1995) for elements of proof in motion to reopen.
Factual findings by a judge are not arbitrary or capricious if they are supported by competent evidence in the record. SeeBroughton v. Guardian Indus., 9 Mass. Workers' Comp. Rep. 561, 563, 1995 WL 604300 at 2 (1995). The judge here made a subsidiary finding that:
Dr. Hoerner notes that at the time of his examination there was little reference to. . . the chronic pain syndrome that had previously existed. Dr. Hoerner attributes her ongoing difficulty to preexisting degenerative joint and disc disease along with preexisting depression and morbid obesity. The only underlying records concerning Dr. Hoerner's diagnosis of depression originate from Massachusetts General Hospital where Mrs. Mendonca underwent a battery of tests in June of 1994, including a psychiatric evaluation. This evaluation resulted in a diagnosis of reactive major depression ". . . related to an approximate two hundred (200) pound weight gain over the prior four years and fifty pounds during the past year." Dr. Hoerner noted that at the time of this report Mrs. Mendonca stood 5 foot 7 inch and weighed approximately 350 ponds (sic). At the time of his own examination he estimated that she weighed about the same.(emphasis supplied).
See Errichetto v. Southeast Pipeline Contractors, 11 Mass. Workers' Comp. Rep. ___, slip op. at 7-9 (January 31, 1997) (obesity as a pre-existing condition triggering the application of G.L.c. 152, § 1 (7A)'s pre-existing condition standard).
Thus preceding the industrial accident of November 29, 1993.
(Dec. 5.) The quoted material above came directly from page five of the impartial medical examiner's report. (Statutory Ex.)
The judge went on to explain the reasons why he was unpersuaded that the employee had a causally related disabling psychiatric condition. He found, based on the impartial medical examiner's opinion, that the chronic pain syndrome from which the employee had previously suffered was no longer present. (Dec. 6.) With respect to the issue of a conversion disorder, the judge adopted the opinion of the employee's treating physician that "this psychiatric condition is a result of unconscious elements which drive physical symptoms and these underlying elements would have to be considered the cause of conversion disorder." (Dec. 6.)
The judge concluded that "[f]rom the information available to me I am unable to ascertain whether Mrs. Mendonca is suffering from a conversion disorder or depression, or whether her condition is related to malingering or a factitious disorder." (Dec. 6-7.) This determination of nonpersuasion is a finding of fact which must be upheld by the reviewing board unless it is arbitrary, capricious or contrary to law. "Our standard of review is not what conclusion we would reach if we had been the fact finder, but whether there is any evidence, including all rational inferences of which the evidence is susceptible, upon which the finding of nonpersuasion could have been made. Buck's Case, 342 Mass. 766, 769, 175 N.E.2d 369, 372 (1961). If so, then the decision is not arbitrary or capricious."Degregorio v. Ceco Constr. Co., 6 Mass. Workers' Comp. 213, 215, 1992 WL 384378 at 2 (1992); accord Tucker v. General Electric Co., 10 Mass. Workers' Comp. Rep. ___, slip op. at 4 (December 31, 1996).
1 Webster's Third International Dictionary 813 (1981) defines "factitious" as "produced artificially or by special effort." Dorland's Illustrated Medical Dictionary (27th ed., 1988) defines it as "artificial, not natural." Id. at 607.
In his deposition, Dr. Martinez defines it as "signs and symptoms which essentially are taken on by the person consciously to assume a sick role." (Martinez Dep. 20.)
The reasons given by the judge for his nonpersuasion are rational and sensible, and grounded firmly in the evidence of record. If a condition may arise "spontaneously" or may be "occasioned by malingering" or may be "facticious," then a judge may permissibly be unpersuaded that it exists. This is all that G.L.c. 152, § 11C requires for affirmation. See Scheffler's Case, 419 Mass. 251, 258 (1994).
Although the majority and I disagree on the application of G.L.c. 152, § 1 (7A) where mental disability allegedly arises from a physical injury, see Cirignano v. Globe Nickel Plating, 11 Mass. Workers' Comp. Rep. ___ (1997), that dispute is irrelevant here. It comes into play only if the judge finds some causally related mental disability. The judge here was not persuaded thatany causally related mental disability existed. Therefore the degree of causation (some, even a slight causal connection, under the majority's view — or a predominant causal connection, under my view) makes no difference.
I address one final point, the propriety of the doctors' conversations in forming their opinions. The prior common law prohibiting admission of an opinion based on hearsay has been overruled by the holding in Department of Youth Services v. A Juvenile: "permitting an expert to base an opinion on facts or data not in evidence if the facts or data are independently admissible and are a permissible basis for an expert to consider in formulating an opinion." Id., 398 Mass. at 530. For a list of cases following this precedent, see Liacos, Massachusetts Evidence § 7.10.2 (c). Here, Dr. Worthington's opinion, that the employee's condition may have been occasioned by malingering or may be a factitious disorder, would have been admissible if offered because the judge had permitted additional medical evidence. Medical care providers routinely consult with specialists and rely upon their opinions; the opinions of consulting medical specialists are clearly a permissible basis for an expert medical opinion. Thus both prongs of the new foundational test for the admission of Dr. Martinez's opinion were met in this case.
Dr. Martinez's opinion that the employee was suffering from a conversion disorder was offered by the employee. (Dep. 19-21; 30; 33-34.) It was admitted without objection or motion to strike. Therefore, the reviewing board should not sua sponte challenge its admission on the grounds that it was in part based on facts not proven on the record. See Nancy P. v. D'Amato, supra, at 524. Dr. Martinez was permitted to state, and the judge to recite, the information the doctor had received on which he relied in giving his opinion. See (Dec. 6; Dep. 19-20.) Those facts were not admitted to prove their truth, and the judge could not properly rely on them in making findings. He could, however, as he did, make findings based on Dr. Martinez's opinion, which was admitted for its full probative value. See Nancy P., supra.
Because the judge's decision is clearly and carefully reasoned, consistent with law, and is based upon properly offered and admitted evidence, it should be affirmed.
The employee's successful appeal may be a pyrrhic victory because on remand the insurer should have the opportunity to fully probe the original evaluating psychiatrist's opinion and to fully explore the § 1 (7A) pre-existing condition issue raised by the employee's obesity.
__________________________ Suzanne E.K. Smith Administrative Law Judge