Opinion
BOARD Nos. 5138591, 5110692, 5110792, 5110892
Filed: October 31, 1995
REVIEWING BOARD DECISION
(Judges Wilson, McCarthy Fischel)
APPEARANCES
William T. Walsh, Esq., for the Employee.
Matthew F. King, Esq., for Lumbermen's Mutual Casualty (Kemper).
Kimberly Davis-Crear, Esq., for CNA.
Janice K. Biederman, Esq., for Workers' Compensation Trust Fund.
The employee and the insurer, Lumbermen's Mutual Casualty cross-appeal the hearing decision in this matter. The employee maintains that the judge's assignment of an earning capacity based on a medical report not in evidence is reversible error. The insurer contends that the judge erred 1)in finding causal relationship between the employee's undisputed industrial accident in 1963 and the subsequent incapacity; 2)in finding Lumbermen's Mutual Casualty liable, as opposed to successive insurers; and 3)in applying G.L.c. 152, § 35B without a sufficient evidentiary foundation. We recommit the case for further findings with regard to both the assignment of an earning capacity and the application of § 35B. We affirm the decision in all other respects.
On February 20, 1963, the employee sustained multiple fractures of both heel (calconeal) bones, as well as his right tibial bone, when he fell forty feet from a tree in the course of his employment with Ottani Tree Service. The claim was accepted by Lumbermen's Mutual Casualty ("Lumbermen's"), which paid various periods of weekly benefits under §§ 34 and 35 from February 21, 1963 to June 25, 1967 (Dec. 3-4).
The employee returned to full time work for Ottani Tree Service in 1967, where he performed administrative duties, such as maintaining accounts, payroll, and formulating bids (Tr. II, 7-8). His work involved sitting, standing and some walking (Tr. II, 41-42). He did not perform any heavy physical duties from the time of his return to work in 1967 until he stopped working entirely in 1991 (Dec. 4). The employee experienced foot pain related to the industrial accident in 1963, for which he saw a podiatrist and had orthopedic shoes specially-made. Lumbermen's paid for these medical and related services (Tr. I, 19, 24, 25, 29).
In 1985, the employee began to experience back pain, which he attempted to self-treat for several years (Dec. 4; Tr. I, 29-31). In 1989, the employee was referred by Lumbermen's to a psychiatrist, Dr. Raymond D. Pierson, with whom the employee commenced treatment on January 31, 1990 (Tr. I, 32; Pierson Dep. 10). The insurer paid for the employee's treatments with Dr. Pierson and other physicians to whom he was referred regarding his back pain (Tr. II, 36-37).
In 1991, the employee filed the instant claim alleging that he developed back pain because of posture problems related to his feet, and seeking § 35 benefits from February 1, 1990 until February 28, 1991 and § 34 benefits from March 1, 1991 and continuing (Dec. 4). A conference was held on the claim on April 13, 1992, after which a denial of payment issued. The employee appealed and a hearing was held on February 4, 1993. For the hearing, Lumbermen's was allowed to join successive insurers of Ottani Tree Service, Liberty Mutual, CNA, and the Workers' Compensation Trust Fund. (Dec. 1.)
Ottani Tree Service had no workers' compensation policy from August 1989 until the company went out of business in November 1991 (Dec. 5; Tr. I, 37-41).
Dr. Cyril Shea, Jr., an orthopedic surgeon, examined the employee on behalf of Lumbermen's on July 11, 1991. Dr. Shea gave a diagnosis of degenerative disc disease, with a question of spinal stenosis, along with fractures of both feet and the right tibia. Dr. Shea opined that the employee was capable of sedentary work with short periods of standing and walking (Dec. 6). The administrative judge marked Dr. Shea's report as Insurer's Exhibit 2 (Dec. 2), but the report was never entered into evidence at the hearing. (Tr. II at 65-78).
Dr. Pierson, the employee's treating physician, testified by way of deposition on March 15, 1993. Dr. Pierson opined that the employee sustained bilateral calconeal fractures with subsequent degenerative arthritis and pain as a result of the 1963 industrial accident. Dr. Pierson further stated that the employee's medical condition had caused him to have a markedly abnormal gait pattern since the date of his injury, which contributed to degenerative changes in his spine. Dr. Pierson's diagnosis as to the employee's back condition was degenerative disc disease and spinal stenosis.
The administrative judge adopted the opinion of Dr. Pierson with regard to causal relationship, and ordered Lumbermen's to pay § 34 weekly benefits for temporary and total incapacity to the employee from March 1, 1991 until July 10, 1991 based on the stipulated average weekly wage of $490.76 at the time of the 1990 onset of incapacity. The administrative judge adopted the opinion of Dr. Shea with regard to the employee's present physical disability as of July 10, 1991. Based on that as well as his consideration of the employee's age, education, work experience and physical limitations pursuant to Frennier's Case, 318 Mass. 635, 639 (1945), he awarded the employee § 35 weekly benefits for partial incapacity, assigning a weekly earning capacity of $200.00. (Dec. 9-10.)
The administrative judge denied the employee's claim for § 35 benefits from February 1, 1990 to February 28, 1991 (Dec. 9), which ruling neither appealing party contests.
The administrative judge also credited the testimony of Brian Tassone, a private investigator, through whom the insurer introduced photographs which purportedly indicated that the employee had a work capacity (Dec. 5, 9).
The judge's assignment of an earning capacity of $200 as of July 10, 1991 is error. The judge adopts the opinion of Dr. Shea, who examined the employee on July 11, 1991 (Dec. 6), to find generally "that the Employee is capable of performing work in a sitting position with very limited standing." (Dec. 9). Aside from the obvious, but minimal, error in the dates, the finding cannot stand. A review of the transcript indicates that Dr. Shea's July 11, 1991 report was never introduced into evidence at the hearing, even though the judge listed the report as Insurer Exhibit 2 (Dec. 2). "In a workers' compensation case involving issues of disability, expert medical evidence must be relied upon unless the nature and course of the disability are matters of common knowledge." Scheffler v. Sentry Insurance, 7 Mass. Workers' Comp. Rep. 219, 222 (1993), aff'd,Scheffler's Case, 419 Mass. 251 (1994). "Since [Dr. Shea's] opinion [is] not properly in evidence, reliance upon [it] is misplaced." Matias v. Columbia Electronic, 7 Mass. Workers' Comp. Rep. 246, 247 (1993). The employee's assertion to that effect is correct. The judge's assignment of an earning capacity is vacated, and the case is recommitted for further findings regarding the extent of the employee's medical disability. See Rossi v. Mass. Water Resources Authority, 7 Mass. Workers' Comp. Rep. 101, 102-103 (1993).
The administrative judge allowed the insurer's request to depose Dr. Shea (Tr. II at 75), but no deposition was ever held.
The judge's findings regarding the causal relationship between the employee's 1963 industrial accident and his physical disability commencing in 1991 are adequate, the insurer's claims notwithstanding. The judge properly relied on the deposition testimony of Dr. Pierson, and made subsidiary findings that, "[w]ith reference to the Employee's back condition [the medical condition underlying the employee's claimed disability], Dr. Pierson gave a diagnosis of degenerative disc disease and spinal stenosis." (Dec. 7). The judge also found:
Dr. Pierson was of the opinion that the Employee sustained bilateral calconeal fractures with subsequent degenerative arthritis and pain as a result of his February 20, 1963 fall. Dr. Pierson was also of the opinion that his condition has caused the Employee to have a markedly abnormal gait for the last 30 years and that this gait has affected his spine in producing and contributing to degenerative changes. . . . Dr. Pierson was of the opinion that the Employee's condition [of degenerative disc disease and spinal stenosis] developed in part as a direct consequence of his abnormal gait pattern which had been abnormal since the date of his injury [in 1963].
(Dec. 7). The judge, in his general findings, then adopted the opinion of Dr. Raymond Pierson that "the Employee's back condition developed in part as a direct consequence of his abnormal gait pattern which resulted from his 1963 injury." (Dec. 8). Indeed, Dr. Pierson's deposition testimony entirely supports the judge's subsidiary and general findings to that effect (Pierson Dep. 22-23). "[T]he ultimate probative value of the medical testimony is to be weighed by the administrative judge." Barbieri v. Johnson Equipment, 8 Mass. Workers' Comp. Rep. 71, 74 (1994), citing Robinson v. Contributory Retirement Board, 20 Mass. App. Ct. 634, 639 (1984). "An administrative judge is free to accept all, part, or none of an expert medical expert's testimony with regard to causality so long as he makes sufficient findings." Hannon v. Gillette Company, 7 Mass. Workers' Comp. Rep. 287, 291 (1993). "Factual findings will not be reversed unless wholly lacking in evidentiary support or otherwise tainted by errors of law." Phillips v. Armstrong World Industries, 5 Mass. Workers' Comp. Rep. 383, 384 (1991). The judge's decision regarding causal relationship is warranted by the evidence, untainted by errors of law, and we therefore decline to overturn it. SeePacheco v. Plymouth Rubber, 5 Mass. Workers Comp. Rep. 385, 388 (1991);Woolfall's Case, 13 Mass. App. Ct. 1070 (1982).
The insurer next raises the issue of whether there was a second compensable injury, in order to shift liability for the employee's condition onto one of the successive insurers involved in this case (Insurer brief 13). The short and quite apparent answer to this inquiry is that the judge found no such second compensable injury. See findingssupra. We discern no error.
In the case at bar, the employee returned to work years after the 1963 industrial accident, in a light duty administrative capacity (Dec. 4). The employee's treating physician, Dr. Pierson, testified that the prolonged sitting that was an aspect of the employee's vocation could have been an aggravating factor to the employee's back condition (Pierson Dep. 38). There was no other evidence introduced at the hearing regarding work-related causes of the employee's incapacity, other than the 1963 industrial accident. Therefore, the judge was left with the question as to whether prolonged sitting, as a matter of law, can be a condition of employment that could cause an injury compensable under the Act. It is clear that prolonged sitting can be no more a "condition of employment" than the prolonged standing or walking in Zerofski's Case, 385 Mass. 590 (1982). To paraphrase the seminal paragraph of Zerofski:
[Ottani's] complaint . . . falls on the side of "wear and tear." Undoubtedly, the initial injury to his [feet] in [1963] was a contributing cause of his disability, and a compensable personal injury within the meaning of the act. [Footnote omitted.] The aggravation of the injury over the next [twenty-five] years of work, however, did not amount to a personal injury. There is nothing to distinguish these [twenty-five] years of work from other occupations that [Ottani] might have pursued. Prolonged [sitting is] simply too common [within] necessary human activities to constitute [an] identifiable condition of employment.
Id. at 595-596. As in Radke v. Eastham Foundations, 7 Mass. Workers' Comp. Rep. 197, 200 (1993), the judge found that the employee's "abnormal gait pattern" (Dec. 8), caused by the original injury, resulted in his incapacitating degenerative disc disease and spinal stenosis. This is exactly the "natural physiological progression of a condition associated with the initial injury" that supports liability on the part of the insurer on the risk at the time of that initial injury. Radke, 7 Mass. Workers' Comp. Rep. at 201.
The insurer also contends that G.L.c. 152, § 35B should not apply in this case. The issue was raised at hearing (Dec. 2). The administrative judge, however, did not make specific findings addressing the matter nor did he specifically order the § 35B adjustment. Even though the judge's findings provide some inferential support for applying § 35B, we agree with Lumbermen's that he nevertheless needs to address the statutory elements with more particularity.
General Laws c. 152, § 35B, St. 1970, c. 667, § 1 provides:
An employee who has been receiving compensation under this chapter and who has returned to work for a period of not less than two months shall, if he is subsequently injured and receives compensation, be paid such compensation at the rate in effect at the time of the subsequent injury whether or not such subsequent injury is determined to be a recurrence of the former injury; provided that if compensation for the old injury was paid in a lump sum, he shall not receive compensation unless the subsequent injury is determined to be a new injury.
The instant case appears to involve a deterioration in the employee's physical abilities culminating in the inability to work. If so, such deterioration is the type of "change in the employee's physical or mental condition . . . which[, when it] occurs at least two months after his return to work[,]" constitutes a "subsequent injury" within the meaning of § 35B. Don Francisco's Case, 14 Mass. App. Ct. 456, 461 (1982). These elements are implied in the judge's findings: he finds that the employee returned to work and continued working for twenty-seven years (Dec. p. 9), and that the employee's abnormal gait had affected his spine and contributed to degenerative changes over the course of thirty years after the initial injury (Dec. 8). Upon recommittal, however, the judge should make explicit findings regarding the § 35B elements of "subsequent injury" and "return to work for a period of not less than two months." See Rush v. M.B.T.A., 8 Mass. Workers' Comp. Rep. 225, 228 (1994) ("Proof of deterioration is essential; the employee must have been able to do the work to which he returned and must have been unable to do so when forced to leave work again at least two months later."), citing Czarniak's Case, 14 Mass. App. Ct. 467, 468-469 (1982).
The general findings, "The employee suffered an injury in the course of his employment on February 20, 1963," and "This injury was accepted and compensation was paid by [the insurer]," (Dec. 8) undisputably satisfy the first element of § 35B, that of "[a]n employee who has been receiving compensation under this chapter." § 35B.
The insurer argues as well that the judge must make a determination as to when the change in the employee's physical condition occurred (Insurer's brief 18-19). The issue underlying this argument is the section's enactment as of February 1, 1971 (inserted by St. 1970, c. 667, § 1), four years after the employee "returned to work," and the fact that § 35B, as a substantive provision, applies prospectively. See Don Francisco's Case, supra at 462-463. The judge should make further findings as to whether the entire change in the employee's condition occurred prior to 1971, thereby exempting this "subsequent injury" from the reach of § 35B.
We note that the evidence indicates the employee had no symptoms of back pain whatsoever until 1985 (Tr. I, 29). It therefore seems unlikely that the entire physiological change causing the back pain occurred over fourteen years prior to its onset. It is, however, a factual call for the administrative judge.
As a final matter, the insurer argues that one of the successive insurers in this case should be on the risk for the "subsequent injury," if the judge finds one upon recommittal, reasoning that the evidence does not support any finding that a change in the employee's condition occurred while this insurer was still on the risk (Insurer's brief 19). The insurer's argument ignores the fact that the "subsequent injury" under § 35B in this case is, as we stated above, the "natural physiological progression of the condition associated with the initial injury."Radke, supra. A "subsequent injury" within the meaning of § 35B "covers a broader range of harm than does the phrase 'personal injury arising out of and in the course of . . . employment. . . .' [An employee] may have suffered a 'subsequent injury,' even though he did not suffer a [new] 'personal injury arising out of and in the course of . . . employment.'" Zerofski's Case, 385 Mass. at 596, n. 7. Any successive insurer would incur liability only for a new "personal injury" under the Act at the time that it was on the risk. As we discussed above, there is no evidence in this case of any "personal injury" beyond that which initially occurred in 1963. Therefore, this argument is unpersuasive.
What is actually involved in this case is a "recurrence" for the purposes of § 35B, although the use of that term of art is somewhat obscure when, as here, the "recurrence" occurs in a different body part than that which the industrial accident originally affected.
We recommit this case for further findings in accordance with this opinion. The administrative judge may take such other evidence as he deems necessary to decide the issue of the extent and duration of incapacity.
So ordered.
____________________________________ Sara Holmes Wilson Administrative Law Judge
____________________________________ William A. McCarthy Administrative Law Judge
____________________________________ Carolynn N. Fischel Administrative Law Judge
Filed: October 31, 1995