Opinion
BOARD No. 08702789
Filed: February 21, 1997
REVIEWING BOARD DECISION
(Judges McCarthy, Smith and Maze-Rothstein)
APPEARANCES
J. Channing Migner, Esq., for the employee.
Dennis M. Maher, Esq., for the insurer on appeal.
Marguerite S. O'Neil, Esq., for the insurer at hearing.
To respond to this case of first impression we must examine the scope of the language, "other mechanical appliance," as it appears in the description of reasonable and necessary health care benefits. See G.L.c. 152, § 30. The judge denied the employee's claim for partial reimbursement of the cost of a specially equipped van. Ms. Stevens had argued a need for the modified van because her work injury required her to use a non-collapsible power wheelchair. The decision rests on two legal errors, thus we reverse in part and recommit the case for further findings. See G.L.c. 152, § 11C.
At the time of hearing, the employee was a thirty-one year old graduate student at Brandeis University. From early childhood she had been afflicted with reflex sympathetic dystrophy. This debilitating condition was first diagnosed when she was eight years old. By the time she reached eighteen she was confined to a wheelchair. (Dec. 4.) As a teenager she learned sign language interpretation. She signed for several organizations from 1984 to 1988. Id. In February 1989 while signing for deaf students at Northeastern University ("employer"), MS. Stevens developed severe pain in her hands and wrists. She was unable to continue in her employment. (Dec. 5.)
The insurer accepted her claim for workers' compensation benefits due to her diagnosed condition of upper extremity cumulative trauma disorder. (Dec. 2, 6.) Conforming to a March 1992 order by a prior administrative judge, the insurer paid for the purchase of a power wheelchair to replace the employee's manual wheelchair, which she could no longer operate due to her upper extremity condition. (Dec. 5.)
The parties settled the weekly benefit portion of employee's case by lump sum agreement on December 10, 1993. Under the agreement the insurer remained obligated to pay necessary and reasonable medical expenses. Some months later, in August of 1994, the employee purchased a van specially equipped with a wheelchair lift, hand controls, a specialized braking system and an adaptive driving program. Id. Prior to the industrial injury, the employee had used a modified Toyota, which accommodated her collapsible and thus more, portable wheelchair. She could not fit her new power wheelchair into the Toyota. (Dec. 7; Tr. 38-39.)
The employee claimed that the purchase and modification of the new motor vehicle was within the insurer's § 30 obligation to pay for a "mechanical appliance, [to] promote [the employee's] restoration to or continue [her] in industry . . . ." G.L.c. 152, § 30. The insurer denied the claim, as did the judge after a § 10A conference. The employee appealed to a hearing de novo. (Dec. 2.)
On November 23, 1994, the employee was medically examined under the provisions of G.L.c. 152, § 11A. The § 11A examiner could make no definitive diagnosis to account for the employee's six years of symptoms since the last cumulative trauma occurred. (Dec. 6.) The employee moved for a ruling that the report was inadequate and sought to introduce additional medical evidence. (Dec. 6-7.) The judge denied the motion (Dec. 7) but, at hearing, marked and admitted into evidence a § 11A medical report dated November 4, 1993, prepared for a prior proceeding. (Tr. 8.) This 1993 report was never listed nor referred to in any way in the decision. The judge adopted the contemporaneous 1994 opinion of the § 11A examiner. (Dec. 6-7.)
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 the additional medical testimony is required due to the complexity of the medical issues involved or the inadequacy of the report.
Of relevance to this appeal are the following findings. The accepted cumulative trauma injury was found to have exacerbated the employee's preexisting reflex sympathetic dystrophy. (Dec. 8.) Although the insurer had paid for a power wheelchair, the employee's replacement of her Toyota with the specially equipped van was ruled a routine expense not causally related to the employee's industrial injury. The judge found that the employee's need for such a specially modified vehicle was "predominantly caused" by her preexisting reflex sympathetic dystrophy. (Dec. 8.) Paradoxically, the installation of hand controls was found to be a causally related, reasonable and necessary § 30 medical expense. (Dec. 8.) Therefore, of the vehicle-related claim items, only payment for the cost of those controls was awarded. (Dec. 11.) We have the employee's appeal from this decision.
There were other expenses claimed as part of this § 30 case. However, the employee does not contest their disposition, so we do not address them.
The question of whether specially equipped private transportation for handicapped individuals with compensable industrial injuries is covered under the Act has yet to be addressed in the Commonwealth. The effort to dispose of this novel issue at hearing resulted in two legal errors.
"Proper decisions . . . must contain conclusions which are adequately supported by subsidiary findings which are not 'tainted by error of law.'" Ballard's Case, 13 Mass. App. Ct. 1068, 1069 (1982) [quoting Paltsios's Case, 329 Mass. 526, 528 (1952)]. As a basis for denying most of the claimed van modification expenses, the judge found "that her need for such a vehicle is, more likely than not, predominantly caused by her preexisting reflex sympathetic dystrophy." (Dec. 8.) (Emphasis added).
The causal standard relied on by the judge appears no where in the Act. The closest approximation relates to mental, not physical, work injuries and appears in the 1991 version of § 1 (7A). The employee's case was accepted. There is no reason whatsoever to refer back to whether there was a compensable work injury when deciding the § 30 medical services issue. SeeCirignano v. Globe Nickel Plating, 11 Mass. Workers' Comp. Rep. ___ (January 17, 1997). Instead the causal relationship inquiry simply turns on whether the accepted work injury is an any way related to the need for the mechanical appliance sought.
A prior administrative judge ordered that the power wheelchair was a compensable expense under § 30. The determination was not appealed. That legally settled fact, limits the subsequent causation inquiry. See Franco v. Winston Restaurant, 10 Mass. Workers' Comp. Rep. ___ (August 29, 1996) (for discussion of res judicata effect of unappealed findings). To the extent that the employee continued to experience work related pain and restrictions in her upper extremities, preventing her use of a manual wheelchair, her use of the power wheelchair continued to be causally related to her compensable injury. (Dec. 5-6.) See note 1, supra.
The judge's use of the wrong causation standard makes both the findings and the conclusion reached legally untenable. Thus, the causation finding is reversed. See G.L.c. 152, § 11C.
Next, the van fitted with a wheelchair lift and special driving equipment was erroneously evaluated as a garden variety "reasonable and necessary" medical expense claim. In determining whether modified private transportation is compensable the adjudicator must apply the language of the fourth paragraph of § 30. It reads in pertinent part:
In any case where an administrative judge, the reviewing board, the office of education and vocational rehabilitation or the health care services board is of the opinion that the fitting of an employee eligible for compensation with an artificial eye or limb, or other mechanical appliance, will promote his restoration to or continue him in industry, it may be ordered that such employee be provided with such item, at the expense of the insurer. (Emphasis added).
This particular aspect of § 30, by virtue of the plain meaning of the language used, includes consideration of practical vocational questions such as the employee's access to reliable transportation, where she lives and where her retraining and employment prospects are located, in order to reach whether the contested transportation will have a positive effect on "an injured employee's ability to hold a job or obtain a new position." Scheffler's Case, 419 Mass. 251, 256 (1994). The quoted language from § 30, supra, explicitly directs this assessment.
Finding no Massachusetts law governing whether a motor vehicle as a form of private transportation can be considered an "other mechanical appliance" under § 30, we look to other jurisdictions for guidance. There we find no uniformity of either statutory language or interpretation. We are persuaded, however, that the language of our Act is closer to those statutes in jurisdictions where courts have allowed coverage of specially equipped motor vehicles within their medical benefits sections.
In North Dakota, the Supreme Court held that the added expense associated with buying a handicap adapted van beyond that of a regular automobile was a compensable benefit within the meaning of that state's statute. Meyer v. North Dakota Workers Compensation Bureau, 512 N.W.2d 680, 684 (N.D. 1994). The pertinent section provides for medical and rehabilitation services, which include "furnish[ing] such artificial members and replacements as in the judgment of the bureau may be necessary to rehabilitate [the] injured employee." N.D.C.C. § 65-05-07. "Artificial replacements" are defined as "mechanical aids including braces, belts, casts, or crutches as may be reasonable and necessary due to compensable injury." N.D.C.C. § 65-01-02 (2). Meyer, supra. As here, the hearing judge in Meyer had determined that only some of the claimed expenses were compensable. The court reasoned:
The hearing officer found the van's adaptive equipment was reasonably necessary for [the paraplegic employee's] rehabilitation. The adaptive equipment is an "artificial replacement" under the statute. The hearing officer, however, incorrectly computed the cost associated with using the equipment. If as a part of his rehabilitation and return to employment, [the employee] must use adaptive equipment, and if the adaptive equipment can only be used with a van, then the bureau is responsible for the cost of the adaptive equipment and the necessary additional vehicle cost associated with purchasing a van.
Meyer, supra (emphasis added). Our Act provides that compensation be paid for "an artificial eye or limb, or other mechanical appliance [as] will promote [the employee's] restoration to or continue him in industry." G.L.c. 152, § 30. When we compare the language of the Meyer statutes — "artificial replacements," "mechanical aids," with our own "mechanical appliance" — coupled with the plainly stated intent of both statutes to promote rehabilitation of the handicapped employee, we see no reason to reach a different conclusion from that was reached in Myer, supra.
Similarly, the Court of Appeals in Arizona found that a specially equipped van was compensable as an "other apparatus" within the meaning of that state's medical benefits section.Terry Grantham Co. v. Industrial Commission of Arizona, 152 Ariz. 180, 741 P.2d 313, 316 (Ariz.App. 1987) ("modified van was essential to restore virtually any mobility"). Other states that have held the same in analogous fact situations include: Fidelity and Casualty Co. v. Cooper, 382 So.2d 1331, 1332 (Fla.App. 1980) ("[w]here an industrial injury necessitates the modification or substitution of an automobile in order to accommodate a wheelchair or artificial member and to restore in part a claimant's ambulatory ability, such costs may be awarded as 'other apparatus'") (emphasis in original); Manpower Temporary Services v. Sioson, 529 N.W.2d 259, 264 (Iowa 1995) (defining "appliance" within medical benefits section, as a "means to an end," court stated, "[t]he 'end' of the van is merely an extension of [the employee's] 300-pound wheelchair" which the commissioner could reasonably view as a necessary appliance within the employee's medical care); Crouch v. West Virginia Workers' Compensation Commission, 184 W. Va. 730, 403 S.E.2d 747 (1991) (bureau held liable for difference between cost of handicapped equipped van and the cost of average, mid-priced automobile, of same year). Our Act's provision for "mechanical appliance" expenses likewise should cover the cost of providing a specially equipped van.
We do not find those jurisdictions that have disallowed the cost of specially equipped motor vehicles within medical benefits sections persuasive. In New York, the Appellate Division rejected, with no supporting reasoning, a claim for the cost of a specially equipped van as a medical "apparatus." Kranis v. Trunz, Inc., 91 A.D.2d 765 (1982). In North Carolina, the Court of Appeals held that a specially equipped van was not within the meaning of the statutory language, "other treatment or care or rehabilitative services," stating that the language applied only to medical services. McDonald v. Brunswick Electric Membership Corp., 336 S.E.2d 407, 408 (N.C.App. 1985). General Laws c. 152, § 30 specifically directs attention beyond the strictly medical realm to the vocational realm by allowing compensability for "the fitting of an employee . . . with an artificial eye or limb, or other mechanical appliance" to be determined by "an administrative judge, the reviewing board, the office of education and vocational rehabilitation or the health care services board . . . ." The Massachusetts statute appears to be unique in this respect. We are satisfied that interpretation of our statute more closely aligns with those jurisdictions that have covered expenses such as those at issue here than with those that have not.
A Pennsylvania case argued by the insurer as supporting its exclusion of the van from § 30 coverage actually says nothing of the sort, and is inapposite. See Rieger v. Workmen's Compensation App. Board, 521 A.2d 84, 87 (Pa.Cmwlth. 1987) (court reversed hearing judge's decision, and awarded expenses for installation of hand controls in employee's automobile as "orthopedic appliances").
Certainly, once causation is resolved the next question is what is economically necessary to transport the motorized wheelchair. See Brigham Willington v. Mapes, 610 So.2d 623 (Fla.Dist.Ct.App. 1992); Kraft Dairy Group v. Cohen, 645 So.2d 1072, 1078 (Fla.Dist.Ct.App. 1994) (furnishing of van services found to be "the most economical means available"). Thus, cost differences ought to be taken into account. See Crouch v. West Virginia Workers' Compensation Com'r., supra (difference between cost of mid-priced automobile of same year and converted van);Meyer v. North Dakota's Workers' Comp. Bureau, 512 N.W.2d 680, 684 (1994); Strickland v. Bowater, Inc., 472 S.E.2d 635 (1996). Moreover, the insurer would not be responsible for the vehicle's general maintenance or other ownership expenses. See Manpower Temporary Servs. v. Siosin, 529 N.W. 259, 264 (1995) (insurer not required to pay expenses of van's repair, fuel, title, license and insurance). We leave these and other particulars for the parties to prepare and present on recommittal.
Accordingly, we reverse the finding of no causal relationship as it is based on the wrong causation standard and recommit for application of the correct standard. Since the § 11A doctor has indicated that he is incapable of rendering an opinion on the medical causation question at issue, the administrative judge must require additional medical evidence on recommittal. (Statutory Exhibit 1.3.) See G.L.c. 152, § 11A(2); O'Brien's Case, 424 Mass. 16, 22-23 (1997) ("[i]n any case where these procedures still failed to offer a party an opportunity to present testimony necessary to present fairly the medical issues, then there might well be a failure of due process as applied in that case"); Mendez v. The Foxboro Co., 9 Mass. Workers' Comp. Rep. 641, 645 (1995) (a § 11A opinion that does not respond to contested medical issues is clearly inadequate and requires additional medical evidence); Lebrun v. Century Markets, 9 Mass. Workers' Comp. Rep. 692, 694-697 (1995). Because we find our statute like those of some sister states will allow for transportation assistance up to and including a van, if continuing causation is established and under the fourth paragraph of § 30 the judge finds that a specially equipped van will promote the employee's restoration to or continue her in industry, he must order the insurer to provide it or some reasonable equivalent, for so long as such appliance is made necessary by the continuing effects of the work injury.
So ordered.
_________________________ Susan Maze-Rothstein Administrative Law Judge
_________________________ William A. McCarthy Administrative Law Judge
_________________________ Suzanne E.K. Smith Administrative Law Judge February 21, 1997