Opinion
BOARD No. 06770891
Filed: October 8, 1997
REVIEWING BOARD DECISION
(Judges Maze-Rothstein and McCarthy, Smith)
APPEARANCES
William J. Branca, Esq., for the employee
Charles C. Donoghue, Esq., for the self-insurer at hearing
Timothy F. Nevils, Esq., for the self-insurer on brief
With her original liability claim for a repetitive injury to her right elbow denied, the employee appeals. Presumably the judge premised his denial on a wear and tear theory, but he failed to make findings on the nature of the employee's work. The decision also reveals reliance on evidence outside the hearing record. We therefore reverse the decision and recommit the case. G.L.c. 152, § 11C.
Virginia Resca, was age sixty when injured. A high school graduate, she began working for the employer as a clerk/typist in 1966. By the time she left work on September 5, 1991, she was a medical records supervisor. She allegedly left work because her right elbow pain, first experienced in July of 1991, had become severe. She was subsequently diagnosed as suffering from epicondylitis and osteophytes. (Dec. 4.)
The employee filed a claim for benefits, which the self-insurer resisted. A § 10A conference on her claim resulted in a denial. She appealed to a de novo hearing. Pursuant to § 11A(2), a medical examiner was appointed. The doctor diagnosed a work-related epicondylitis (tennis elbow) that continued to cause symptoms and non-work-related osteophytes. (Dec. 4-5; Ex. 2; Dep. 22, 24.) No other medical evidence was allowed. Following the hearing, the claim was denied. The employee again appealed. Thereafter, the parties stipulated to a recommittal and, with the reviewing board's imprimatur, the case was returned to the judge. On June 10, 1996 an amended decision issued, again denying the claim. (Dec. 3.) It is this second decision, which is now before us on appeal.
General Laws c. 152, § 11A gives an impartial medical examiner's report the effect of "prima facie evidence with regard to the medical issues contained therein," and expressly prohibits the introduction of other medical evidence unless the judge finds additional medical testimony is required due to the complexity of the medical issues involved or the inadequacy of the report.
The employee takes issue with the finding that "the activities the employee performed as a medical record supervisor in the use of her right arm are identical to every day common use and to normal wear and tear" because the decision fails to identify the activities or explain how they fell outside the criteria ofZerofski's Case, 385 Mass. 594 (1982). (Dec. 6.)
The employee testified that she pulled medical records 100 times per day, and did data entry, word processing, photocopying, sorting, delivery and filing of records. (Tr. 10-12, 18-19, 30-32; Self-Insurer's Ex. 2.) She wrote on her long term disability application that her condition was due to constant filing and lifting of records and reports. (Self-insurer's Ex. 2.) Her industrial accident claim form alleged that her injury was due to "repetitive use of arms." (Employee's Claim, dated 1/17/92.)
Zerofski stands for the proposition that there must be both a causal connection between employment and the injury as a matter of fact ("medical causation"), and where, as here, the medical harm does not arise from a specific incident or series of incidents, the employee must establish that the injury arose from an identifiable condition that is not common or necessary to all or a great many occupations ("legal causation"). Id. at 595; Adams v. Contributory Ret. Appeal Bd., 414 Mass. 360, 366 (1993).
The Zerofski causation analysis requires the judge to make findings about the nature of the employee's job duties, comparing the frequency and intensity of these job activities with those of other occupations and daily life. Id. Without such findings, we cannot tell whether the judge acted arbitrarily, capriciously or contrary to law in denying the claim.
The judge recognized the doctor's opinion that while the employee's, "osteophytes were not caused by her employment . . . her symptoms and pain are related to her job activities." (Dec. 5.) Nevertheless, the judge only adopted the doctor's opinion that the employee had some residual physical capacity and that the osteophytes were not caused by work. (Dec. 7.) Then, without any further explanation, he concluded that "the employee has failed to sustain her burden of proving that she has sustained an industrial injury." (Dec. 8.)
The employee's injury date, September 5, 1991, preceded statutory amendments enacted later that year. As such, her injury is governed by the "as is" standard of compensation, which means the employee may recover regardless of whether her injury is partly due to a preexisting weakness or infirmity. If work conditions aggravated her preexisting health problem, the resulting incapacity for work is compensable. The injury need not be traumatic in origin. Zerofski's Case, 385 Mass. 590, 592 (1982). Given this standard, we can not discern how the judge concluded that the employee failed to prove her claim. Thus, recommittal is appropriate. See Burke v. Town of Clinton School Dep't., 10 Mass. Workers' Comp. Rep. 863, 864-865 (1996).
Post December 23, 1991 claims of aggravation of a pre-existing condition are governed by G.L.c. 152, § 1 (7A), as amended by St. 1991, c. 398, § 14. That amendment is not applicable here. St. 1991, c. 398, § 106.
Finally, Resca correctly argues that the judge erred when he considered documents not offered into evidence. In the decision, he specifically relies on unidentified "documented evidence contained within the Board files and the Proposed Stipulations of Fact and Conclusions of Law." (Dec. 6.) Such reliance is reversible error. "The decision of the administrative judge shall be based solely on the evidence introduced at the hearing." 452 Code Mass. Regs. 1.11 (5). Proposed findings are merely argument, not evidence. Further, the general contents of department files may not be considered without judicial notice or admission as an exhibit. See, e.g., Morrison v. Krauss, 353 Mass. 761 (1968);Dennen v. Addison Gilbert Hospital, 5 Mass. Workers' Comp. Rep. 289, 295 (1991); Barofsky v. Lundermac Co., Inc., 4 Mass. Workers' Comp. Rep. 135, 137 n. 2 (1990); P.J. Liacos, Massachusetts Evidence § 2.8.1. (6th ed. 1994). This is because all evidence considered by the adjudicator must be properly identified to afford the parties a fair opportunity challenge it and to establish an accurate record in the event of an appeal. Rossi v. Mass. Water Resources Authority, 7 Mass. Workers' Comp. Rep. 101, 102 (1993).
Accordingly, because the findings do not divulge whether the correct law was applied to facts that could properly be found, we reverse the decision and recommit the case for a determination consistent with this opinion. See Praetz v. Factory Mut. Eng'g. Research, 7 Mass. Workers' Comp. Rep. 45, 46-47 (1993). As the administrative judge who issued this decision has retired, we forward this case to the senior judge for a reassignment to a new administrative judge for hearing de novo. The parties may assent to have the case heard by the new judge on all or any portion of the evidence taken before the earlier judge. Nartowicz's Case, 334 Mass. 684, 138 N.E.2d 273, 275 (1956).
So ordered.
_________________________________ Susan Maze-Rothstein Administrative Law Judge
_________________________________ William A. McCarthy Administrative Law Judge
_________________________________ Suzanne E. K. Smith Administrative Law Judge
Filed: October 8, 1997