Opinion
BOARD No. 00993194
Filed: March 13, 1998
REVIEWING BOARD DECISION (Judges Smith, Maze-Rothstein McCarthy)
APPEARANCES
Goncalo M. Rego, Esq., for the employee
Edward F. McGourty, Esq., for the insurer
The employee appeals from the decision of an administrative judge, denying and dismissing his claim for weekly incapacity benefits. He argues, among other things, that the judge's findings lack evidentiary support. Because we can find no evidence in the record to support key factual findings, we conclude that the decision is arbitrary and capricious and must be reversed. G.L.c. 152, § 11C.
Miguel Simas was forty-nine years old at the time of the hearing. A native of Portugal, he completed the third grade of school in Portugal. Since moving to the United States he has been employed as a laborer and machine operator. On March 28, 1994, while carrying a heavy tool, he slipped and fell injuring his back. He received immediate medical treatment including x-rays and analgesic medication. Thereafter he treated with a chiropractor and an orthopedic surgeon. (Dec. 2-3.)
The insurer paid § 34 total temporary incapacity benefits on a without prejudice basis until Simas's return to light duty work in May 1994. On November 10, 1994, Simas lost his job in a general layoff. He collected unemployment benefits for the statutory maximum time and then filed this claim for workers' compensation benefits, which the insurer denied. (Dec. 3-4.) After a § 10A conference, the judge refused to order benefits. Simas appealed the conference denial, and the case proceeded to a § 11 de novo hearing. At hearing, Simas provided the only lay testimony and the § 11A impartial medical examiner, Roger S. Pocze, M.D., provided the only medical evidence. (Dec. 1, 2.) Based on this evidence, the judge made the following findings of fact:
On May 1, 1994, he returned to work . . . he continued to work from May 1, 1994 until November 10, 1994, at which time there was a general lay-off at Modern Construction Company. (Dec. 3, emphasis supplied.)
There is no evidence that the employee sought any medical treatment during the time prior to the lay-off and before he filed his workers' compensation claim. (Dec. 4, emphasis supplied.)
Simas's claim for compensation was filed on June 23, 1995. (Employee's Claim Form 110.)
While the employee attributes one hundred percent of his present disability to the incident of February 28, 1994, he did, in fact, receive lumbar steroid injections subsequent to the motor vehicle accident of July 1995. (Dec. 6, emphasis supplied.)
He was examined on June 26, 1996 by Dr. Roger S. Pocze, M.D., an orthopedic surgeon. . . . At that time, when providing a history to the examiner, the employee did not mention either of the two motor vehicle accidents in which he was involved . . . (Dec. 6-7, emphasis supplied.)
Simas was involved in two motor vehicle accidents. The first occurred on May 25, 1995 (Tr. 21) and the second in July, 1996 (Tr. 26). Thus, at the time of the § 11A examination the second motor vehicle accident had yet to occur.
. . . when the impartial examiner concluded that the employee cannot return to a job which requires repetitive heavy lifting and bending and relates the disability to the March 28, 1994, he was without the additional information concerning two additional traumatic episodes which may have influenced his decision if the information had been available to him. (Dec. 8, emphasis supplied.)
Based upon these specific findings of fact, the judge concluded:
I find that the fact that the employee worked continuously subsequent to his return to work in May of 1994 and prior to his layoff in November of 1994 and that he did not file a claim for workers' compensation benefits until his unemployment compensation ran out, coupled with the fact there is no evidence of any medical treatment during that period of time, gives rise to an inference that the employee was not, in fact, in any way disabled during the period from May, 1994 to June, 1995. (Dec. 9, emphasis supplied.)
I also find that the opinion of the impartial examiner relative to disability and causal relationship would, in all probability, have been different had be been apprised of all the pertinent facts at the time of his examination . . . (Dec. 10, emphasis supplied.)
Based in part on these findings and conclusions, the judge denied and dismissed Simas's claim for further benefits.
Simas asserts that the decision is arbitrary and capricious because these findings and conclusions lack adequate evidentiary support. See G.L.c. 152, § 11C; Scheffler's Case, 419 Mass. 251, 258 (1994). We agree. We address each one in turn.
First, the finding that the employee worked continuously from May, 1994, (Dec. 3 and 9), is contradicted by the employee's testimony and does not appear to be affirmatively supported by any evidence of record. Disbelief of any particular evidence does not constitute positive evidence to the contrary. New Boston Garden Corp. v. Bd. of Assessors, 383 Mass. 456, 472, 420 N.E. 298, 307 (1981); Salisbury Water Supply Co. v. Dept. of Public Utilities, 344 Mass. 716, 721, 184 N.E.2d 44 (1962); Liacos,Handbook of Massachusetts Evidence, 454-455 (5th ed. 1981). Thus, even if the judge disbelieved the employee's testimony that he was incapacitated after May 1994, the disbelief does not constitute evidence of continuous work. Simas testified that, against the advice of his treating chiropractor, he returned to light duty work in May 1994, (Tr. 13), but only worked in that capacity for a month. (Tr. 14, 30.) He testified that he then stayed home for another two months and again collected workers' compensation, (Tr. 15-16), and then again returned to light duty for three months, during which time his problems continued unabated. (Tr. 16, 30.) We cannot understand the basis for the judge's finding of continuous work from May 1994 in light of this evidence.
Where we can only speculate about the judge's reasoning, the appellate review to which the claimant is entitled is not possible. Howlett v. Cameo Curtains, 9 Mass. Workers' Comp. Rep. 188, 190 (1995). Therefore recommittal for further findings of fact on this subject is appropriate. G.L.c. 152, § 11C.
Next, the finding that there was no evidence of any medical treatment prior to the layoff in the fall of 1994 and before June 23, 1995 when the pending claim was filed, (Dec. 4), is directly contradicted by the very next sentence in the decision which found that "[o]n May 24, 1995, he underwent an MRI which apparently revealed a disc problem." Id. It is also contradicted by the judge's specific finding of medical treatment immediately following the industrial accident and continuing: "He treated with Dr. Gary Alves, a chiropractor and he also treated with an orthopedic surgeon who referred him to the Lahey Clinic for a second opinion." (Dec. 3.) The judge found that the impartial physician described all the treatment undergone by the employee. (Dec. 7.) This description contradicts the finding that there was no treatment. The finding of no treatment is also inconsistent with the judge's finding that the employee's medical treatment was reasonable and necessary. (Dec. 9.) The finding that there was no medical treatment, (Dec. 4), and the conclusion based upon it, (Dec. 9), appear unsupported by the record.
This finding about the MRI is supported by the employee's testimony. (Tr. 21-22.)
This finding about medical treatment is supported by the record. The employee testified that his chiropractic treatment commenced the day following his injury, (Tr. 13, 31-33, 59), that it continued after his return to work, (Tr. 15-16), that medical treatment began after his layoff, (Tr. 19, 44-45, 59-61) and that he was still receiving medical services at the time of hearing. (Tr. 24-25, 54-55, 58.) The employee's testimony was corroborated by impartial medical examiner's report.
The impartial physician discussed chiropractic progress notes from March 29, 1994 to several months after August 29, 1994, an MRI taken on April 12 1994 (a month after the industrial accident), an MRI scan in May 1994, Pain Management Center records documenting lumbar epidural steroid injection, a Lahey Clinic examination by Dr. Sparacio on April 4 1995, and treatment by Dr. Beretta on February 3 1995 and August 21 1995. (Dep. Ex. 1, 2-3.) The doctor's causation and disability opinions relied upon those treatment records. (Dep. 12, 14, 22.)
Where subsidiary findings are mutually inconsistent or erroneous, it is appropriate to recommit the case for further findings. Nelson v. ADAP/Rite Aid Auto Palace, 10 Mass. Workers' Comp. Rep. 503, 505 (1996). Litigants are entitled a decision based upon all the evidence which they present. Roberts v. Central Heating and Cooling, 9 Mass. Workers' Comp. Rep. 431, 433 (1995). When a judge fails to weigh evidence on a pivotal question, the decision must be reversed and done again. Roldan v. H W Motor Lines, 8 Mass. Workers' Comp. Rep. 410, 412 (1994). On recommittal, the judge must weigh this evidence and make specific findings on the continuousness of medical treatment from the date of injury.
The next finding relates to an "incident of February 28, 1994." (Dec. 6.) We cannot relate this date to any evidence of record. The employee claimed an industrial accident in March 1994. Nor can we understand the significance of the finding about lumbar steroid injections after the first car accident. The only medical evidence regarding the injections is contained in the impartial report which describes unsuccessful steroid treatments between February 3, 1995 (before any car accident) and August 21, 1995 (after the first car accident). (Dep. Ex. 1, 3.) The significance of such treatments is a matter beyond lay knowledge, and requires an expert opinion. None existed.
Finally, the judge discounted the impartial medical report on causation because the doctor was not provided with a history of two post-injury car accidents. However, one of those accidents had not even occurred as of the date of the examination and report! Furthermore, the record does not support the judge's finding that the § 11A impartial examiner's opinion relative to disability and causal relationship would have been different if the doctor known about the two accidents. Although the impartial examiner did not have knowledge about either motor vehicle accident at the time of his examination, he was told of the first accident at deposition.
May 25, 1995. The second accident occurred after the examination date.
The following discourse ensued:
Q. Doctor, if I was [sic] to suggest to you that Mr. Simas had an automobile accident on May 25, 1995 following which he had complaints of back pain and the accident was severe enough to cause Mr. Simas to be knocked unconscious, would that change your opinion at all as far as your diagnosis to this March 28, 1994 injury.
. . .
A. Actually, it would not change my opinion because Mr. Simas had an MRI scan documenting the disc herniation in 1994, so subsequent automobile accident might reasonably be expected to aggravate his symptoms but we already have objective evidence of a disc herniation prior to a 1995 incident, whatever that may be.
(Dep. 13-14, emphasis supplied.)
Section 11A endows the impartial examiner's report with prima facie weight. G.L.c. 152, § 11A(2). In the absence of competent contradictory evidence, this prima facie status requires the judge to find that the impartial opinion is true.Scheffler's Case, 419 Mass. 251, 258-259 (1994). Expert medical evidence on causation was required in the circumstances of this case. See Buck's Case, 342 Mass. 766, 769 (1961); Degregorio v. Ceco Construction Co., 6 Mass. Workers' Comp. Rep. 213, 216 (1992). The only expert medical opinion on causation came from the impartial medical examiner. The impartial medical opinion that the employee's medical problems were causally related to his work injury may not be rejected without a rational basis for such rejection in the record. See Paolini v. Interstate Uniform, 11 Mass. Workers' Comp. Rep. 322, 324 (1997). The judge's reason for disregarding the opinion was arbitrary and capricious, and must be reversed. G.L.c. 152, § 11C;Stofflet v. Wrentham Development Center, 11 Mass. Workers' Comp. Rep. ___ (December 16, 1997).
Neither party filed a motion to present additional medical evidence. However, faced with a claim he believed to be false, the judge could have exercised his authority to sua sponte require additional medical evidence. See § 11A(2); Wilkinson v. City of Peabody, 11 Mass. Workers' Comp. Rep. 263, 265 (1997). Such an approach, in this case where the judge was confused about the medical treatment provided post-injury, would have provided each party with a fair opportunity "to make out its position on the disputed issue." O'Brien's Case, 424 Mass. 16, 22-23 (1996).
As the case is being recommitted for a new decision, we briefly address the other issues raised on appeal. The employee contends that the judge was required to apply G.L.c. 152, § 8 (2)'s presumption that his termination was caused by his work-related disability. We agree.
Section 8 (2)'s presumption may be viewed as balancing § 8 (2)(d)'s permission to unilaterally modify or terminate benefits upon an acceptance of suitable work. Where an employee successfully returns to work for more than 28 days, his benefits are not automatically reinstated upon termination. Compare G.L.c. 152, § 8 (2)(c). However, if the termination occurs within one year, the insurer has the burden of coming forward with evidence that the termination was due to a reason other than the employee's work-related disability. Here, the insurer produced evidence of a general layoff, which was sufficient to meet its burden of coming forward. The judge found that the employee was in fact laid off as part of a general layoff. (Dec. 3, 4, 5.) This finding is adequate to rebut the § 8 (2) presumption. Thus we perceive no legal error by the judge on this point.
Section 8 (2) provides in pertinent part: "For purposes of clause (d) of this section, any termination of an employee within one year of resumption of work with his prior employer will be presumed to be for the reason that the employee was physically or mentally incapable of performing the duties required by the job or that the job was unsuitable for the employee, unless the insurer demonstrates the contrary by a preponderance of evidence at a subsequent proceeding." G.L.c. 152, § 8 (2), as amended by St. 1991, c. 398, § 23.
Finally, the employee contends that the judge failed to properly apply G.L.c. 152, § 36B, which governs entitlement to workers' compensation benefits during receipt of unemployment compensation. Because the judge found no entitlement to workers' compensation, the decision evidences no error on this issue. However, if on recommittal, the judge finds an entitlement to § 35 partial incapacity benefits, he shall subtract the unemployment payments from those benefits to determine the proper amount of the § 35 order.
Section 36B provides, in pertinent part:
(1) No benefits shall be payable under section thirty-four or section thirty-four A for any week in which the employee has received or is receiving unemployment compensation benefits.
(2) Any employee claiming or receiving benefits under section thirty-five . . . shall . . . apply for such benefits . . . Any unemployment compensation benefits received shall be credited against partial disability benefits payable for the same time period . . . .
G.L.c. 152, § 36B, as enacted by St. 1985, c. 572, § 47A.
In summary, for the above reasons, we reverse the decision and recommit the case for a new decision consistent with this opinion. In light of the passage of time during the pendency of the appeal, the judge may take whatever additional evidence is necessary to render a just decision, including additional medical evidence.
So ordered.
______________________________ Suzanne E. K. Smith Administrative Law Judge
______________________________ Susan Maze-Rothstein Administrative Law Judge
______________________________ William A. McCarthy Administrative Law Judge
Filed: March 13, 1998