Opinion
BOARD No. 52543-87
Filed: March 29, 1996
REVIEWING BOARD DECISION
(Judges Fischel, McCarthy and Wilson)
APPEARANCES
Mitchell Garabedian, Esq., for the employee
Robert Barry, Esq., for the insurer
The employee's appeal alleges error in the judge's findings as to the medical evidence. For the reasons that follow, we vacate a portion of the order, and remand.
By prior decision dated June 27, 1988 Michael Ortiz, the employee, was found to have been injured at work on August 31, 1987, while removing asbestos, at a school in Fitchbury. (Dec. I, Dec. II, Employee's Ex. 7) After taking lay testimony on December 10, 1987, the prior judge gave the parties until February 1988 to submit medical evidence. (Dec. I) He then filed a decision on June 27, 1988, finding that on August 31, 1987 the employee struck his left shoulder and the back of his neck on a steel beam, and felt radiating pain into his lower back. Id. at 3. The judge adopted the medical opinion of Dr. S. Frank Fox and ordered the insurer to pay § 34 total incapacity benefits through November 3, 1987, the date of Dr. Fox's examination, and thereafter to pay § 35 partial incapacity benefits based on an earning capacity of $400 and an average weekly wage of $540.17.Id. at 5-7.
Subsequent to the February 1988 close of the medical evidence, and prior to the June 27, 1988 filing of the first decision, the employee underwent shoulder surgery on March 9, 1988. (Dec. II, Employee's ex. 2) The employee filed claims for further compensation which were conferenced before a second judge, and denied. (Dec. II, p. 4) The employee appealed to hearing. Id.
The employee filed claims in the alternative, seeking § 34, § 34A, and additional § 35 benefits.
Hearing commenced before a third administrative judge on December 10, 1991. Id. at 6. At hearing the judge observed that the employee sought to show a change in the employee's condition subsequent to the February 1988 close of evidence in the original hearing, based on evidence he underwent a Weaver Dunn surgical procedure on March 9, 1988, and on May 10, 1988 diagnostic testing by MRI disclosed a disc herniation at L5-S1. (Dec. II, pp. 9, 10, 14, 15) The insurer argued that the issue at hearing was confined to whether any disability related to the work injury of August 31, 1987 had worsened since the prior decision was filed on June 28, 1988. (Id. at 15)
At some point subsequent to the lay hearing on December 10, 1991, the insurer filed a motion to reconvene the hearing for newly discovered evidence of the claimant's involvement in a motor vehicle accident on December 26, 1990. (Dec. II, p. 9) The judge allowed the insurer's motion and reconvened the hearing on May 5, 1992, for the testimony of a Safety Insurance Company witness regarding the motor vehicle incident of December 26, 1990. Further lay testimony was taken on June 10, 1992. (Id. at 21, 22)
The judge's decision, contains a lengthy recitation of the testimony,id, at 16-34, with few subsidiary findings. Among the findings he noted that "the employee treated with Dr. Frank A. Graf and Byron Hartunian and both of these doctors have causally related Mr. Ortiz's shoulder surgery and his herniated disc to the work injury of August 31, 1987." Id. at 10 (emphasis added).
Dr. Hartunian was the insurer's examining expert, and not a treating physician.
The judge then made general findings. First, he rejected the medical opinion of Dr. Graf that chronic pain, severe depression, the herniated disc at L5-S1, and the residual left shoulder crick with acromioclavicular separation, were causally related to the work injury. Id. at 38. Second, the judge found that the motor vehicle accident of December 26, 1990 did not permanently aggravate the employee's industrial injury. Id.
Third, the judge found that the employee's condition had not worsened since the prior judge's decision was filed on June 28, 1988. Id. He adopted the opinion of Dr. Hartunian that the employee's diagnosis, physical condition and earning capacity had not significantly changed during the course of the doctor's evaluations from April 6, 1988 to November 22, 1991. Id. Fourth, the judge found reasonable and necessary the employee's treatment for the "diagnosed condition of tendonitis muscle strain of the left shoulder, neck and post surgery status of the left shoulder." Id. at 39. Having set forth these findings, the judge denied the employee's claims for § 34A and § 34 benefits, and continued the level of § 35 benefits as ordered by the first judge on June 28, 1988. Id.
The employee filed this appeal, contending that where both Dr. Graf and Dr. Hartunian causally related the employee's back condition to the August 31, 1987 industrial injury, it was arbitrary and capricious for the judge to, without explanation, reject the uncontradicted medical evidence. It is within the discretion of a judge to reject even uncontradicted medical opinion, so long as he sets forth reasons for doing so which have a basis in the evidence. Lemanski v. LaFrenire's Driveway Construction, 8 Mass. Workers' Comp. Rep. 22, 24 (1994) Here no explanation is offered for rejecting the uncontradicted medical opinion that the employee's back condition was causally related to the work injury, and thus the conclusion is without support in the medical opinion. We vacate the finding as to lack of causal relationship.
As a second basis of his appeal, the employee argues that the finding that the "[e]mployee's condition has not worsened since (the prior judge's) order of June 28, 1988" (Dec. II, p. 38), reflects the judge's failure to consider whether the employee's condition had worsened after the February 1988 close of the medical evidence before the prior judge. The employee contends that the judge did not consider the March 1988 shoulder surgery as evidence of worsening, since the surgery preceded the filing date of the prior decision.
Where the shoulder surgery occurred after the close of the evidence and before the filing of the prior decision, the first hearing decision did not address the effects of that surgery on the employee's incapacity status. Given that timing, the beginning point for the administrative judge in the second hearing would appropriately be the day after the close of evidence in the earlier case, namely February 1988. Under these circumstances, it was error to refuse to look back before the June 27, 1988 filing date of the earlier decision. Since we are remanding this case for further findings on causal relationship and incapacity, the administrative judge should make findings with regard to the effect of the March 9, 1987 shoulder surgery on the employee's work capacity. Gherardi v. Rexnord, Inc., 7 Mass. Workers' Comp. Rep. ___ (1993); Smith v. Theta J. Corp., 6 Mass. Workers' Comp. Rep. 172 (1992). Findings as to when incapacity, whether total or partial, begins and ends must be anchored in the evidence.Id; Makris v. Jolly Jorge's, Inc., 4 Mass. Workers' Comp. Rep. 360, 362 (1990).
We vacate the finding as to causal relationship of the back condition, and remand this matter for further findings as here indicated.
So ordered.
_______________________ Carolynn N. Fischel Administrative Law Judge
_______________________ William A. McCarthy Administrative Law Judge
_______________________ Sara Holmes Wilson Administrative Law Judge
Filed: March 29, 1996