Opinion
BOARD No. 064792-91
Filed: April 2, 1996
REVIEWING BOARD DECISION
(Judges Maze-Rothstein, Smith and Kirby)
APPEARANCES
Michael B. Cormier, Esq., for the employee
John J. Canniff, Esq., for the insurer at the hearing
Paul M. Moretti, Esq., for the insurer on brief for the appeal
This case sadly illustrates how the scourge of AIDS has affected some employees in the work place. We have an appeal from a decision dismissing the employee's claim for total temporary incapacity and § 30 medical benefits. She alleges errors of law and fact on the issue of causation and on the extent of her incapacity. We agree and therefore reverse the causation finding and remand for further findings on the extent of causation.
On November 11, 1991, the employee, a licensed practical nurse, assisted a patient whom she knew to be infected with the HIV virus. After administering a hypodermic needle of medication, she attempted to dispose of it in the proper container. At the moment she opened the container, another needle fell out of it and struck her in the thigh. The employee also knew that she had just administered medication to another HIV positive patient. The wound bled. The employee became upset and went to the emergency room for tetanus and hepatitis vaccine injections. She was counselled, and immediately began to take AZT. During the six week course of AZT therapy, the employee experienced unsavory physical side effects including nausea, diarrhea and dizziness. She tested negative for HIV in first of a series of tests. (Dec. 8.)
At the time of the hearing, October 21, 1992, the employee had not yet undergone her last HIV blood test, which was necessary because the infection can take up to a year to manifest itself.
About a week after the needle incident, the employee attempted to return to work. (Tr. 21.) However, when called upon to administer medications, she became so nervous and frightened that she could not perform her duties. She had to leave work and has not gone back since. (Dec. 8-9.)
The employee treated with a psychologist and a psychiatrist. Her symptoms included anxiety and depression related to her fear of contracting AIDS, and anger and guilt at her inability to nurse Hispanics, blacks, and AIDS patients. (Dec. 9.) Her symptoms became more generalized and intensified over time. She became unable to leave her house, was fearful of everyone, felt unlucky and guilty, was prone to panic attacks, and ultimately could not cope with any difficult life circumstances. (Dec. 12-13.)
The employee filed a claim for incapacity and medical benefits. G.L.c. 152, § 34 and 30. The judge ordered payment of a closed period of § 34 temporary total benefits along with medical benefits, but denied continuing benefits for a psychological injury. The employee appealed to a hearing de novo. (Dec. 4.)
At hearing medical testimony was taken by way of deposition. The employee deposed her treating psychologist, Dr. Higgins. The insurer deposed its expert psychiatrist, Dr. Robert Weiner. The judge rejected Dr. Higgins' opinion, and adopted Dr. Weiner's opinion with regard to the extent of the employee's disability. (Dec. 50.)
Dr. Weiner diagnosed an emotional disorder marked by anxiety, depression and anger. (Dec. 38.) He opined that the employee's symptoms were triggered by the industrial accident, but that, at the time of the needle-stick, approximately half of her emotional reaction was due to that incident, with the other half being attributable to latent psychological issues that pre-dated the incident. (Dec. 40-41; Weiner Depo. 20-21, 42-43.) Further he believed that as time passed, the earlier issues had become the predominant cause of her worsening psychological condition, with the effect of the industrial accident decreasing. (Weiner Depo. 20-21.) Dr. Weiner felt that the employee would do well to start to get back into the work force. (Weiner Depo. 21-22.) The doctor, however, did not believe that the employee could return to her former occupation as a nurse. (Dec. 42; Weiner Depo. 43.)
The fifty one page decision, includes forty pages of recitation of the lay and medical testimony summarized above. (Dec. 4-44.) In that forty pages there are no subsidiary findings of fact. What few findings exist are found in the decision's last two pages. (Dec. 49-50.) Ultimately, the employee was found to have suffered a compensable personal injury from the needle-stick. The insurer was held liable for her medical treatment for that physical injury, including her AZT therapy and for treatment of her emotional distress immediately following the incident. The judge concluded there was no causal relationship between the employee's present psychological disability and the industrial injury. Save her inability to return to nursing, he found she could be gainfully employed. (Dec. 49-50.) Therefore, the judge affirmed the closed period of benefits awarded at conference but otherwise dismissed the claim. (Dec. 51.)
The judge's decision is an extreme departure from the statutory requirement to make clear subsidiary findings of fact upon which his ultimate findings are based. As stated long ago in Judkin's Case, 315 Mass. 226 (1943):
In the instant case all the material evidence appears in the record. [Citations omitted.] It is settled, however, that it is the duty of the [administrative judge] to make specific and definite findings upon the evidence reported as will enable this court to determine with reasonable certainty whether correct rules of law have been applied [citation omitted], and that mere general conclusions unaccompanied by findings of fact "as a basis to support them do not comply with the intention of the Legislature, as expressed in the workmen's compensation act . . . [and that they] do not satisfy the statutory requirement of findings of fact. . . ."
Id. at 227, quoting Craddock's Case, 310 Mass. 116, 125 (1941) (emphasis added). See also Messersmith's Case, 340 Mass. 117, 119 (1959); Ballard's Case, 13 Mass. App. Ct. 1068, 1069 (1982); see also G.L.c. 152, § 11B ("decisions of members of the board shall set forth the issues in controversy, the decision on each and a brief statement of the grounds for each such decision"). (Emphasis added).
On appeal to the reviewing board, the employee argues that the conclusions regarding causal relationship and the extent of her incapacity are arbitrary and capricious. She also argues that the issue of causal relationship was determined by application of an incorrect standard. We entirely agree. First, the recitations misconstrue important medical evidence, upon which the causation finding was based. The judge found that "any disability that the employee has presently is not caused by her industrial accident." (Dec. 50.) The judge wrote:
We include in this decision substantial excerpts of deposition testimony, as the judge's decision inaccurately reflects the medical evidence contained therein.
It is Dr. Weiner's opinion that given the incident of her being stuck with a needle and given her own medical knowledge, that her present anxiety was exaggerated and due to other causes than her Industrial Accident. (Dec. 38-39, emphasis added.)
The doctor, who acknowledged the employee's diagnosed emotional disorder "marked by anxiety depression and anger", (Weiner Dep. 15) actually testified:
Q: Doctor, you have stated that [the employee] sustained an emotional reaction to the needle-stick accident of November, 1991; at that time, could you characterize in a percentage way what was causing her mental state, whether it was the affects of the industrial injury or her pre-existing condition?
A: I would estimate that half of her emotional reaction had to do over the ensuing couple of months with the incident itself, and the other half would be related to earlier issues that she had not dealt with.
Q: And as time went on doctor what would happen to those respective percentages?
A: As time goes on the percentage of the anxiety and depression related to the needle-stick incident decreased in part because of the positive medical evidence she was receiving; in part because the time had gone on, whereas the other issues have become greater. . . .
Q: Are these past issues now the predominant cause of her present mental state?
A: Yes. (Weiner Depo. 20-21, emphasis added.)
There is simply no evidence in the record to support an interpretation of the above testimony as meaning that the employee's "present anxiety was . . . due to other causes than her Industrial Accident." Dr. Weiner never testified that the causal relationship between the industrial accident and the employee's present disability had ended, only that it had decreased. Therefore, to the extent that we read the judge's recitation as a subsidiary finding of no continuing causal connection, such finding cannot stand. Since there is no other subsidiary finding or recitation of medical testimony in the decision that supports a conclusion of no present causation and because medical evidence is needed to determine causation, we vacate the causal finding. See King's Case, 352 Mass. 488, 490 (1967).
Were this simply an instance of findings without support in the record, we would be obliged to vacate and remand for further findings. See G.L.c. 152, § 11C. However, on the same issue of causation, the decision reveals an error of law, which under our standard of review requires reversal. Id. The judge commented that he needed to determine "whether the industrial accident [was] responsible for the predominant or major cause of her present mental disability's (Dec. 40, emphasis added.) There are two reasons application of a "predominant" or "major" cause standard to a November 11, 1991 personal injury was erroneous.
First, on this date of injury, § 1 (7A) provided that mental injuries were compensable if "a significant contributing cause of such disability is an event or series of events within the employment." G.L.c. 152, § 1(7A) (St. 1986, c. 662, § 6). As of December 23, 1991 § 1 (7A) was amended to 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". St. 1991, c. 398, § 14 (emphasis added). This amendment was specifically deemed substantive in character, and therefore only applies to personal injuries occurring after its effective date. St. 1991, c. 398, § 106. The current version of § 1 (7A) did not apply to the subject November, 1991 personal injury. It's use in this case — was, therefore, contrary to law.
The use of an erroneous mental injury standard is a compounded by the fact that this is not a "pure" mental injury case but is instead a physical-mental injury case. Application of the correct standard to the latter category of injuries compels an entirely different conclusion. In the ultimate findings, the insurer incurred responsibility for "her physical injury from the industrial accident [and] the results of having to take AZT, and the emotional distress that she suffered following the industrial accident. . . ." (Dec. 49, emphasis added.) Indeed, the employee's industrial injury was at first, a physical injury, which drew blood, and which directly resulted in her undergoing a six week regimen of AZT. The AZT treatment caused her the expected daily physical ailments of nausea, diarrhea and dizziness. (Dec. 8.) Inexorably, the conclusion is: the employee's emotional condition was caused by a work-related physical injury. As such, the "as is" standard of causation applies to the employee's November, 1991 injury date. Fitzgibbons' Case, 374 Mass. 633, 637 (1978).
In Antoine v. Pyrotector, 7 Mass. Workers' Comp. Rep. 337, 341 (1993), we specifically addressed whether an emotional disability which arises from a 1986 physical trauma in the workplace is subject to the "significant contributing cause" standard of the 1986 version of § 1 (7A). We need not restate the former exposition:
M.G.L.c. 152, § 1 (7A), as amended by St. 1985, c. 572, § 11 and St. 1986, c. 662, § 6 provides that,
Personal injuries shall include mental or emotional disabilities only where a significant contributing cause of such disability is an event or series of events occurring within the employment.
Although operative at the time of the employee's injuries, that section addresses mental or emotional disabilities arising directly from the employment. This case, however, concerns psychological injury subsequent to physical trauma which has long been held to be compensable. Fitzgibbons' Case, 374 Mass. at 637; Cennerazzo v. GTE Laboratories, 4 Mass. Workers' Comp. Rep. 253, 255 (1990). Section 1 (7A) refers to "injuries," "disabilities," and "events." We do not read these terms to be synonymous. The "event," which must occur within the employment, is (other than in the rare cases of idiopathic injuries) the cause of "injury." Where the injury is emotional, the work related event must be a significant cause of "disability." No such limitation applies to physical injuries arising out of and in the course of the employment or to emotional injuries causally related to a work related physical injury. A work related physical injury is not an "event . . . occurring within the employment." Section 1 (7A) is inapplicable to an emotional disability caused by a physical injury occurring within the employment. See Lavoie v. Westfield Public School System, 7 Mass. Workers' Comp. Rep. 77, 80 (1993). Our opinion in Lavoie also makes clear that § 1 (7A) was a legislative response to the court's decision in Kelly's Case, 394 Mass. 684 (1985), which involved a disability resulting from workplace stress rather than a physical injury. Lavoie, supra at 79-80. Where as in this case the workplace event led to a physical injury, any emotional illness causally related to the physical injury is compensable. Antoine, supra at 341, note 1 (emphasis added).
As in Antoine, the employee here "need not prove . . . [her emotional] injury is wholly [or "significantly"] caused by the employment; it is sufficient if the employment is one of the contributing factors in causing the injury. Id. at 341 (emphasis added). All of the medical evidence supports a conclusion that the industrial accident continued to contribute the employee's present emotional disability. The opinion of the employee's treating psychologist, Dr. Higgins, absolutely supports this causal link. (Dec. 15-34.) Moreover, the insurer's expert, Dr. Weiner, was unequivocal on this point:
Q: Would it be fair to say doctor that it is your opinion that the initial needle-stick incident of November 11, 1991 was the incident that triggered the emotional reaction and the subsequent development of anxiety and depression?
A: Yes.
. . .
Q: It is that initial needle-stick and the resulting fear of developing AIDS that brought on or triggered an emotional reaction with anxiety and depression which since has increased or ballooned to the point where she is at now?
A: Yes. (Weiner Depo. 42-43.)
Therefore, despite inadequate subsidiary findings due to recitations and factual errors, we will not remand on the issue of causation. We conclude that the employee has proved causal relation between the employment and her present emotional disability as a matter of law because there is no plausible reason which could be advanced to reject the opinions of Drs. Higgins and Weiner. See Messersmith's Case, 340 Mass. 117, 120 (1959). Finally, the conclusions regarding disability and the extent thereof are wholly unsupported by the evidence. The judge stated that, "I adopt the expert medical opinion of Dr. Weiner when he states that, even though the employee may not be able to return to her former nursing job, she is otherwise not disabled from other gainful employment." (Dec. 50.) Dr. Weiner said nothing of the sort. His testimony was as follows:
Q: Doctor, what do you feel is the prognosis for [the employee]?
A: The prognosis for [the employee] depends a great deal on whether she accepts and begins to become active again. It is very important that she resume work and become more active. She obviously has to change her view of herself as being so strong and able to handle everything, and with that acceptance of herself and getting back into the workforce and being productive, I would say prognosis is good. (Weiner Depo. 21-22.)
Later in his deposition, Dr. Weiner elaborated:
Q: In your second report, next to last line on page 3, [You say, "The employee] is disabled from work;" is that correct?
A: Yes.
Q: It is your opinion that the worsening or increasing anxiety and depression triggered initially by this incident resulted in her being disabled from work, is that correct?
A: Yes, she was not able to resume her work at the hospital; as I went on to say, part-time volunteer work would be appropriate.
Q: As a means of treatment she would benefit from doing that?
A: Yes. (Weiner Depo. 43-44, emphasis added.)
The judge's interpretation of Dr. Weiner's opinion has no rational basis. Volunteer work is not "gainful employment." We therefore vacate the judge's findings on incapacity.
In summary, the decision mischaracterizes the medical evidence on the issue of continuing causation and because application of the correct legal standard on the evidence of causation supports only one result, we reverse the finding of no continuing causation. We remand the case solely for further findings regarding the extent of the employee's incapacity.
As justice may require, the administrative judge may take additional evidence to bring current the latter issue.
So ordered.
________________________ Susan Maze-Rothstein Administrative Law Judge
_________________________ Edward P. Kirby Administrative Law Judge
_________________________ Suzanne E.K. Smith Administrative Law Judge
Filed: April 2, 1996