Opinion
BOARD No. 060024-94
Filed: May 26, 1998
REVIEWING BOARD DECISION
(Judges Fischel, Levine and Wilson).
APPEARANCES
Paul Brennan, Esq., for the employee.
Joseph J. Durant, Esq., for the insurer
The employee appeals from a decision in which an administrative judge denied workers' compensation benefits claimed to be due as a result of a work-related motor vehicle accident. The employee contends that the judge made erroneous findings of fact, which impacted his ultimate conclusions, and mischaracterized the medical evidence in various ways. We agree, and therefore recommit the case for further findings.
The employee, age sixty at the time of hearing, completed the seventh grade, and has had no further education. (Dec. 4.) She worked as a school bus driver, driving minivans for the employer, McKinney Bus Company. (Dec. 4.) She suffered from arthritis in her knees prior to her motor vehicle accident on November 29, 1994. (Dec. 4-5.)
The parties stipulated to the occurrence of the motor vehicle accident during the course of her employment. (Dec. 3.) On that day, November 29, 1994, at around 8:30 a.m., the employee was driving the minivan with a bus monitor and four students when the vehicle was struck on the passenger side by an automobile. (Dec. 5.) As a result of the impact, the employee's right knee hit the motor housing of the minivan. Id. The four students were transferred to another van, and after dropping them off at school, the employee and the monitor returned to the bus yard. Id. She then went to the emergency room, but it was too busy, so she returned to the bus yard to wait for her daughter. Id. She returned to the emergency room with her daughter that afternoon, where X-rays were taken showing a small effusion, arthritic changes and no fracture. Id. She was given a knee immobilizer, prescribed pain medication, and told to follow up with her own physician. Id.
The hospital exhibit reflects that Barbara Pelletier was referred to Dr. Warnock for further follow up and evaluation. (Employee Ex. 2.) The employee testified that she was referred to Dr. Warnock by the hospital staff. (Tr. 66.)
The employee saw Dr. Daniel Green on December 2, 1994, and then began to treat with Dr. David Warnock on December 29, 1994. (Dec. 6.) Dr. Warnock notes the presence of some knee effusion in his records of December 29, 1994, January 18, 1995, and February 8, 1995. (Employee's Ex. 3.) Dr. Steven Sewall examined the employee on behalf of the insurer on February 7, 1995 and opined that she sustained a knee contusion and flare up of her degenerative arthritic condition as a result of the work injury, but had recovered and was able to return to work as of the time of his examination. (Dec. 10.)
Dr. Warnock ordered an MRI, which indicated a torn medial meniscus in her right knee. (Dec. 6; Employee Ex. 3.) On May 16, 1995, the employee underwent arthroscopic surgery performed by Dr. Raymond Igou for the removal of the torn medial meniscus. (Dec. 6.)
The insurer paid workers' compensation benefits without prejudice until February 16, 1995. (Dec. 10.) The employee claimed further benefits, and payment for the surgery, which the insurer resisted. (Dec. 2.) The claim was denied at the § 10A conference, and the employee appealed to a hearing de novo.Id.
The employee was examined pursuant to G.L.c. 152, § 11A by Dr. Leonard Popowitz on January 23, 1996. (Dec. 6.) The doctor took a history of prior knee discomfort. (Statutory Ex. 1.) He opined that the arthroscopic surgical repair of the meniscus tear was appropriate treatment for the industrial injury, and that her prior arthritic condition of the right knee experienced an acute flare-up after the motor vehicle accident. The doctor opined that the accident contributed to the employee's acute symptoms of pain and swelling of her right knee, due to the tear to the degenerative meniscus and the resulting effusion. (Dec. 6-7; Statutory Ex. 1.)
The judge gave the insurer an opportunity to obtain a supplemental report from the § 11A examiner, which was not received by the judge. (Dec. 7.) The judge then allowed the parties to introduce additional medical evidence. (Dec. 7-8.)
In his decision the judge found the report of the § 11A examiner to be inadequate and rejected his opinion of causal relationship of the torn meniscus. The judge found that the employee lacked credibility based on contradictions between her testimony at hearing and the medical evidence. (Dec. 8.) He set forth the inconsistences he found:
I find her testimony about when and how she went to the Holy Family Hospital to be internally inconsistent and at odds with the claimed traumatic nature of her injury. I find it difficult to reconcile how she was the only person claiming an injury in a vehicle carrying school children, and yet being able to continue driving another van immediately following the undisputed traffic accident. I find it unusual that she did not file suit against the other driver. . . ."
(Dec. 8.) The judge also pointed to the contradiction between the employee's testimony that her knee had been swollen for two weeks after the incident and the fact that Dr. Green's had noted a contusion but no swelling at his examination on December 2, 1994. (Dec. 9; Insurer Ex. 2.) The judge adopted the opinion of the insurer's medical examiner, Dr. Steven Sewall, who prepared his report three months before the knee surgery, that she was not disabled when examined by him in February 1995. (Dec. 10.)
The judge concluded that the employee did not sustain a compensable personal injury, and had failed to prove that the torn right medial meniscus was related to her work injury of November 29, 1994. (Dec. 12.) He further concluded that she had failed to prove that her May 16, 1995 arthroscopy was causally related to the motor vehicle accident, and that her pre-existing arthritic condition had been the reason for that surgery. (Dec. 11.) The judge denied and dismissed her claim. (Dec. 13.)
On appeal the employee contends that the judge erred in denying her claim, when even the insurer's medical expert, Dr. Sewall, found the employee suffered some trauma to her right knee. (Insurer's Ex. 3, Employee's brief at 10, 18.) We agree that the adopted expert's opinion does not buttress the blanket denial of all benefits to the employee. For this, and for the reasons that follow, we return this matter to the judge for determination of whether the insurer is liable for payment of any incapacity benefits and for §§ 13 and 30 medical benefits for treatment of the injury.
The employee contends that the judge made unsupported factual findings that were central to his determination as to the employee's credibility, and drew adverse inferences from irrelevant factors. We agree that the judge made findings that are not based on the evidence.
The judge found that the employee was the only one injured in the motor vehicle accident, but the uncontradicted evidence was that the bus monitor was also injured. (Dec. 8, Tr. 47, 49.) The judge found that the employee drove the substitute van immediately after the accident, but the uncontradicted evidence was that a co-employee, Judy, drove that van, not the employee. (Dec. 8, Tr. 29, 48, 69-70, 72, 75, 76, 80.) Disbelief of uncontradicted evidence does not warrant the opposite finding.Commonwealth v. DeMinico, 408 Mass. 230, 235 (1990). The judge found the employee's testimony about when and how she went to the Holy Family Hospital inconsistent with her claimed injury. (Dec. 8.) However, we cannot see what bearing the fact that the employee did not stay at the emergency room, when it was so busy that she could not be seen, could have on the judge's analysis.
There was uncontradicted testimony that the employer, Ann McKinney, directed Judy and the employee to return to the yard after dropping off the last child, and thereafter Judy drove the employee, accompanied by the employee's daughter, to the hospital. (Tr. 70, 71, 72, 73, 75.) The employee testified that because the hospital was busy they decided they could not wait and Judy drove them back to the employer's premises, so that the daughter could perform her own driving work shift for the employer. (Tr. 78, 79, 80.) The employee sat in her daughter's car until the daughter got off duty and drove the employee back to the hospital. (Tr. 76, 78, 79, 80.)
The judge also rejected as unreliable the employee's testimony that her knee had been swollen for two weeks after the injury, based on the fact that Dr. Green found a contused knee and a swollen foot, not a swollen knee, when he examined her on December 9, 1994. (Dec. 9.) We agree with the employee that since the emergency room visit for the date of injury noted swelling on November 29, 1994, and the records of Dr. Warnnock, including that of December 29, 1994, and Dr. Igou thereafter show they observed swelling during the course of their treatment, that it was arbitrary to find the medical record did not support the employee's complaint of swelling. (Employee's brief at 15; Employee's Exhibits 2, 3, 4.)
The employee also argues that it was error to draw adverse conclusions as to the merits of her claim from the fact the employee did not file suit against the other driver in the accident. (Dec. 8.) We fail to see how the non-filing of suit bears in any way on the determination of the issues in dispute under the Act.
The employee asserts there are various reasons for refraining from filing suit, including that the other driver may be uninsured or not at fault, or that counsel may be in the process of negotiating a settlement.
The factual errors above go to the heart of the incapacity determination, and thus recommittal is necessary. Herrera v.Cambridge Imported Autobody, 11 Mass. Workers' Comp. Rep. ____ (October 17, 1997). Where key findings are unsupported by the evidence in the record, we must recommit the case for the judge to reassess the case without the effect of those erroneous findings. See O'Neil v.E.G. G., 9 Mass. Workers' Comp. Rep. 211, 212 (1995) (recommittal required where reviewing board unsure how much the judge's erroneous findings may have affected his reasoning and conclusions).
The employee argues that it was arbitrary to adopt the opinion of Dr. Sewall which failed to consider the objective data revealed in the MRI and in the arthroscopic surgery procedure. (Employee's brief at 18.) We agree that where an important event — such as surgery — occurs months after the expert's evaluation, that the pre-event opinion did not adequately address the issues posed. SeeDeLeon v. Accutech Insulation Contract, 10 Mass. Workers' Comp. Rep. 713, 715 (1996).
Therefore, because the judge's factual errors and erroneous legal reasoning leave us with uncertainty as to the soundness of his conclusion to reject the opinion of the § 11A examiner and deny benefits for the stipulated work-related motor vehicle incident, we recommit the case for further findings consistent with this opinion. As is apparent from the decision, § 1(7A) applies to this case. See Robles v. Riverside Mgmt., Inc., 10 Mass. Workers' Comp. Rep. 191 (1996). So ordered.
_____________________ Carolynn N. Fischel Administrative Law Judge
_____________________ Frederick E. Levine Administrative Law Judge
_____________________ Sara Holmes Wilson Administrative Law Judge
FILED: May 26, 1998