Summary
In Peroulakis v. Stop Shop, 12 Mass. Workers' Comp. Rep. 93 (1998), we held that it is perfectly permissible to place surveillance videos alongside medical records, oral history, medical tests and results of examination(s) as the medical expert works toward reaching an opinion on causal relationship and medical disability.
Summary of this case from CRANDALL v. ELAD GENERAL CONTRACTORS, NoOpinion
BOARD No. 00057987
Filed: March 13, 1998
REVIEWING BOARD DECISION
(Judges McCarthy, Maze-Rothstein and Smith).
APPEARANCES
Thomas E. Casartello, Esq., for the employee at hearing.
Earlon L. Seeley, Jr., Esq., for the employee on brief.
William J. Doherty, Esq., for the self-insurer.
The self-insurer appeals from a decision in which an administrative judge denied its request for a complete discontinuance of partial weekly incapacity payments. Instead the judge awarded ongoing partial incapacity benefits but based them on an earning capacity increased from $150.00 to $270.00 per week. The self-insurer argues that the judge first mischaracterized the § 11A medical examiner's opinion, and then improperly substituted his own interpretation of an investigative videotape for that of the § 11A examiner. We reverse the decision and recommit the case for further findings.
Mr. Peroulakis injured his back while working on January 9, 1987. He suffered from a previously impaired back, for which he had undergone surgeries in 1968 and 1978. (Dec. 2.) Nonetheless, the employee had performed strenuous physical work from 1982 until his injury in 1987 and had no pain during that time according to findings made in an earlier decision and noted by the judge in the case at hand. (Dec. 2.) After the self-insurer voluntarily paid the maximum entitlement to § 34 temporary total incapacity benefits the employee made claim in the alternative for § 34A or § 35 benefits. (Tr. 6.) In a hearing decision filed December 8, 1993, a judge awarded § 35 benefits and set the employee's earning capacity at $150.00 per week. (Dec. 2.)
The report of the § 11A impartial examiner has the second surgery taking place in 1980. (Exhibit 3.)
After obtaining videotapes of the employee doing maintenance work at his home in Florida, the self-insurer filed a complaint to discontinue payment of weekly incapacity benefits. (Dec. 1, 3.) The complaint was denied at the § 10A conference and the self-insurer appealed to a full evidentiary hearing. (Dec. 2.)
At the hearing, the only medical evidence was the report and deposition of a § 11A(2) impartial physician, Doctor C. David Bomar. The impartial physician's report of August 11, 1994 noted the employee's history of being pain-free from his return to work after his second surgery until the January 1987 incident, and being in pain ever since that incident. (Report, Ex. 3.) The diagnosis was degenerative disc disease at multiple levels of the lumbar spine. Id. In light of that pre-existing condition, and the history of two earlier back operations, the doctor opined that the 1987 industrial injury had only caused a temporary aggravation of the degenerative disc disease. Id. The employee's present partial medical disability was, in the opinion of the impartial physician, no longer causally related to the industrial injury. (Dec. 3; Ex. 3.) The doctor reiterated this opinion in his deposition. (Dep. 8, 25.) When shown excerpts of the investigative videotapes at his deposition without objection by the employee's counsel, the doctor stated that the employee did not exhibit any signs of permanent disability or impairment of the spine. (Dep. 14; Dec. 3-4.) Nonetheless, the doctor declined to change the work restrictions set out in his report, namely that the employee should avoid repetitive lifting over twenty-five pounds, and repetitive bending. (Dep. 28-29.) The doctor then addressed the following hypothetical question:
Q: [A]ssume that he worked for about eight years without incident, with this degenerative condition, and that he has not been without back pain since the incident in January of 1987.
And assuming those facts, I want you to tell me whether you feel that the January of 1987 incident plays any part in his present condition, any part whatsoever?
A: Assuming I didn't see the tape and that he has persistent symptoms, then I would say yes.
(Dep. 32-33.)
This response was at variance with the doctor's earlier position. The judge described his impression of the employee in the videotapes, thus: "[They] show him gingerly doing yard work around the house, and digging slowly and carefully, with frequent breaks. He was also up on his roof, and changing the rear tires of his car." (Dec. 3.) The judge then made the following findings on the impartial physician's opinion:
Perhaps most tellingly, he states his opinion that given a history of no back trouble until the incident in 1987, and of persistent back pain since that time, absent the videotape, he would find some causal relationship between Mr. Peroulakis' present symptoms and the work injury of 1987. However, his viewing of the videotape convinces him there is none. (See Tr. p. 32, line 23 to p. 33, line 12.). . .
In this case, it is clear that, without the viewing of the videotapes, the doctor would have found that same causal connection. . . . The key then is the doctor's perception of the videotapes, that they do not present any evidence of impairment to the spine. Having viewed the tapes both at hearing, and again after reading the deposition of the physician, I cannot accept this perception of the doctor's, and therefore reject his finding as to no causality.
(Dec. 3, 5.)
Based on his viewing of the videotapes and the impartial physician's opinion as to the employee's work restrictions, as well as the appropriate factors under Scheffler's Case, 419 Mass. 251, 256 (1994), the judge concluded that the employee was partially incapacitated by his causally related medical disability, with an earning capacity of $270.00 per week. He therefore ordered the self-insurer to pay ongoing § 35 benefits, along with medical benefits under § 30. (Dec. 5-6.)
On appeal the self-insurer argues that the judge erred when he found continuing causal relationship between the employee's present incapacity and the January 1987 work injury, because the § 11A examiner's opinion did not support that conclusion. We agree. Although he changed his underlying reasons therefor, the § 11A doctor did not change his opinion that there was no causal relationship. It was also error for the judge to substitute his own impression of the videotapes for that of the § 11A examiner.
This is not to be confused with a situation where a judge might properly disagree with an uncontradicted diagnosis based on finding a different history than the one given to the diagnosing doctor. Here, the videotapes provided a visual history that was not disputed by the employee. It was only the interpretation of that visual history which was the subject of disagreement. As part of his examination of the employee, the § 11A physician observed that, "he [the employee] was able to dress and undress including shoes without hesitation and difficulty. He was able to climb on and off an examination table without difficulty." (Ex. 3 at 3; Dep. 6.) Had the judge been present at the exam he might well have concluded that Mr. Peroulakis moved gingerly and with difficulty, but the judge can neither impose nor substitute such a conclusion on the doctor. Here both the judge and the doctor viewed the same tapes. It was perfectly permissible to place the videotapes alongside medical records, oral history, medical tests and results of examination as the medical expert worked toward reaching an opinion on causal relationship and medical disability. However, the same tapes cannot be used by the judge as a basis for rejecting that uncontested prima facie opinion.
The fact that the judge saw more of the tapes than the doctor is not at issue.
It is always open to the judge to make findings on the presence, intensity and duration of pain. If such findings materially change the history relied upon by the § 11A examiner, there would be basis for rejecting the opinion in whole or in part. That is not the case here where the judge and the doctor had the same history (the videotape) but interpreted that history differently. SeeAnderson v. Anderson Motor Lines, Inc., 1 Mass. Workers' Comp. Rep. 46 (1987).
By way of response, the employee argues that the judge correctly adopted the last segment of the deposition testimony, where the doctor agreed that causal relationship would be established had he not seen the videotape. (Dep. 32-33.) See supra. We agree that the doctor did conditionally change his opinion on the causal relationship issue. In his report, the doctor opined: "I do not think that there is any causal connection between an injury in January 1987 and his present condition of degenerative disc disease." (Ex. 3.) The doctor then opined at the end of his deposition, "Assuming I didn't see the tape and that he has persistent symptoms. Then I would say yes [, the January 1987 incident plays a part in his present condition.]" (Dep. 33.) As a general rule, "the opinion of an expert which must be taken as his evidence is his final conclusion at the moment of testifying."Perangelo's Case, 277 Mass. 59, 64 (1931). This change in the causal relation opinion is curious, because the employee's history of no symptomatology pre-injury and persistent symptoms post-injury was consistent throughout the doctor's testimony in his report and deposition. (Ex. 3.) Having in mind that the videotapes were not part of the history upon which either opinion was based, this change in opinion remains unexplained.
The same problem of a contradictory § 11A opinion arose in Brooks v. Labor Management Services, 11 Mass. Workers' Comp. Rep. ___ (December 8, 1997). There we distinguished Perangelo's Case, supra on the basis that the change in the Perangelo opinion was, indeed, grounded in a change in the adopted history of the injury. Id. at 63-64. Noting that "[t]he hallmark of § 11A medical testimony is its status as exclusive and prima facie evidence[,]" Brooks, at ___, we cited the analysis of prima facie evidence set out in Cook v. Farm Service Store, Inc., 301 Mass. 564 (1938):
When does prima facie evidence . . . lose its artificial legal force and compelling effect, and retain only its inherent persuasive weight as a piece of evidence to be considered with other evidence in finding the fact?. . .
When facts found by an auditor [here, the § 11A doctor] warrant either of two contrary inferences, a further finding arrived at by drawing one of those inferences cannot have any artificial [ prima facie] force, even for a moment. As soon as the [§ 11A doctor's] report is presented, it raises a pure question of fact."Brooks, at ___; citing Cook at 566, 568. Under that analysis, we concluded that the § 11A opinion must be declared inadequate as a matter of law, allowing additional medical evidence to be admitted.
The unexplained, internally inconsistent opinion of the § 11A physician in the present case cannot be accorded prima facie weight under the Cook reasoning. It should therefore "retain only its inherent persuasive weight as a piece of evidence to be considered with other evidence. . . ." Cook, id. at 566 (emphasis added). It logically follows that additional medical evidence is mandated under the circumstances presented by this case. The impartial physician's opinion evidence is inadequate because it is too self-contradictory to "compel the conclusion that the evidence is true. . . ." Id. As a practical matter, if he evidence cannot stand alone as prima facie, it cannot be exclusive. § 11A. The doctor's opinion retains status only as ordinary evidence to be considered with the other medical evidence . . . .
Brooks, at ___. Dr. Bomar's similarly unexplained change in his causal relationship opinion undermines the primacy his opinion might otherwise be granted and for purposes of § 11A makes his report inadequate.
Accordingly, we reverse the decision and recommit the case for the introduction of additional medical evidence and for further findings consistent with this opinion.
So ordered.
___________________ William A. McCarthy Administrative Law Judge
___________________ Susan Maze-Rothstein Administrative Law Judge
FILED: March 13, 1998
I agree with the self-insurer that the administrative judge mischaracterized the § 11A impartial medical opinion and, for that reason, reversal is required by G.L.c. 152, § 11C. I concur in the majority view that the judge improperly substituted his assessment of the videotape for that of the impartial medical examiner.
The judge found wrote "it is clear that, without viewing the videotapes, the doctor would have found . . . causal connection." (Dec. 5.) The judge said he was adopting the impartial opinion expressed "previous to the viewing of the tapes that there is some continuing causal connection." (Dec. 5.) The doctor never expressed such an opinion. His opinion was just the opposite.
The impartial medical examiner consistently opined in his report and deposition that this employee, with serious back problems prior to his work injury, had a temporary aggravation of a pre-existing condition, the effects of which had ended by the time of his examination. He testified:
I do not think that there is any causal connection between an injury at work and his present condition of degenerative disc disease. (Ex. 3, p. 3.). . .
I did not consider that there was a direct causal connection between the January, 1987 injury and the present condition of degenerative joint disease and degenerative disc disease in the back. (Dep. 8.). . .
Well, I think that somebody who has a history of degenerative disc disease and multiple surgeries, will have incidents of aggravations of the lower back at various times, which the aggravations can cause increased pain for a while then settle down back to the pre-existing underlying condition. . . . . From examining him able to perform nearly full range of motion of his lower back without any complaints of pain or obvious signs of difficulty from observation of his movement in the office, his walking, his gait, without, him climbing on and off the table and his shoes, undressing without complaints of pain or observation of a difficulty, and third, from watching this videotape, showing him doing strenuous work all morning without, at least from the videotape, without any difficulty, that indicates that his symptoms had settled down from the 1987 operation. (Dep. 25, emphasis supplied.). . .
But from the evidence I have, the answer is yes [he is as good now as prior to 1987]. (Dep. 26.). . .
I think he is over the 1987 lifting incidents. (Dep. 31.) The judge's contrary causation finding is completely unsupported by competent evidence.
The only other causation opinion in the record is the impartial physician's response to a hypothetical question, which lacks foundation in the evidence. The doctor was asked to assume that he did not see the videotape. But the record is clear that he did view it and did not change his opinion after doing so! Furthermore, the hypothetical asks the doctor to assume persistent symptoms, contrary to the history the doctor received upon examination. According to the impartial physician, the videotape showed an employee performing physical activity without pain. (Dep. 15.) The employee did not appear to the doctor as a person who had continuing low-back symptoms. (Dep. 30.) The doctor himself pointed out the inaccurate assumptions in the hypothetical. He said he could not assume that the employee "had not been without back pain since the incident" as that assumption was contrary to his perception of the videotape. (Dep. 32-34.)
See Dep. 25, quoted supra; Ex. 3, p. 2 ("his symptoms have remained the same with back pain aggravated by exertion"); Dep. 5 ("There was no pain on straight leg raising"); Dep. 6 ("I found that he was able to dress and undress, and put on his shoes without any hesitation or difficulty and climb on and off an exam table without difficulty"); answer repeated at Dep. 21; Dep. 14 ("And he gave a history of some back pain," emphasis supplied.)
The assumption was also contrary to the doctor's observations at the time of his examination, discussed supra.
Because the hypothetical question was based on a key assumption, which is unsupported by the record, the doctor's answer cannot be accorded any evidentiary weight. Collins Case, 21 Mass. App. Ct. 557, 563 (1986). Therefore, the answer cannot be used to overcome the prima facie effect of the doctor's contrary opinion of no causal connection, which was well grounded in the record. Nor can the judge overcome the impartial opinion with their own lay causation opinion.Wilkinson v. City of Peabody, 11 Mass. Workers' Comp. Rep. 263, 264 (1997).
This opinion was properly based upon the medical records and diagnostic tests, the employee's history and the doctor's physical examination, as provided by G.L.c. 152, § 11A(2).
Because the decision is premised on a causation finding that is arbitrary and capricious, it must be reversed. G.L.c. 152, § 11C.
___________________ Suzanne E.K. Smith Administrative Law Judge