Opinion
BOARD No. 001139-93
Filed: December 31, 1996
REVIEWING BOARD DECISION
(Judges Wilson, Fischel, and Kirby)
APPEARANCES
Thomas J. Canavan, Esquire, for the employee.
Daniel J. Whalen, Esquire, for the self-insurer.
The employee appeals from a decision that denied and dismissed his claim for weekly benefits for total incapacity pursuant to G.L.c. 152, § 34. We agree with the employee's contention that the case must be recommitted to remedy an incomplete analysis under § 1(7A).
We set forth the administrative judge's findings. Peter Tardo, the employee, worked for the City of Taunton in the capacity of nursing home administrator. He has an Associates Degree from Fisher Junior College. His prior employment included service in the United States Marine Corps from 1959 to 1963, and experience as a corrections officer, a car salesman, and an auto damage appraiser. In May 1977, he began his employment with the city as a nursing home administrator and continued in that capacity until March 1, 1993, when he could no longer perform his duties. (Dec. 4.) Among his job responsibilities were hiring and disciplinary employees, as well as overseeing the dietary department, nurses and recreation facilities. In 1992, due to changes in Federal regulations and the construction of a sixty two bed facility, his work hours were increased.
In January 1993, the employee experienced severe depression and sought treatment with Dr. Ronal Rosso, a psychiatrist. One month later, he experienced severe chest pain and ultimately was admitted to the Morton Hospital on May 17, 1993. He was diagnosed as having suffered a myocardial infarction and was discharged with medications. (Dec. 5.) On June 1, 1993, the employee was again seen at the Morton Hospital. He was transferred to New England Medical Center and underwent quadruple bypass surgery on June 14, 1993. (Dec. 5.) The employee continued under the care of Dr. Rosso for his depression, and was advised by Dr. Rosso that he should leave his employment. A letter to that effect was composed by Dr. Rosso and submitted to the City of Taunton on behalf of the employee. (Dec. 5.)
The self-insurer denied the employee's claim for worker's compensation benefits. A conference was held on September 7, 1993, and a denial of this claim was issued. The employee appealed to a hearing de novo. (Dec. 3.)
On October 18, 1993, the employee was examined and evaluated pursuant to § 11A by Dr. Madhu P. Thakur, a cardiologist, who noted the employee suffered from chest pain for five years prior to July 1992, and was treated for peptic ulcer disease. (Dec. 8.) Doctor Thakur's medical report was admitted as insurer's exhibit 2. (Dec. 2.) He opined that the employee suffers from coronary heart disease, has been treated for severe depression since 1993, and was totally disabled from his work as an administrator, but was capable of performing desk work with less responsibilities. (Dec. 8; Insurer Ex. 2 at 4.) He also opined that the June 1993 myocardial infarction and the subsequent June 1993 surgery were the natural progression of arteriosclerotic coronary artery disease due to risk factors present in the employee, and were not caused, aggravated or precipitated by his job. (Dec. 8-9; Insurer Ex. 2 at 4.)
On November 24, 1993, the employee was evaluated on behalf of the self-insurer by Dr. Robert M. Weiner, a board certified psychiatrist, who opined at the time of his examination that the employee did not have a mental illness or psychiatric disability that would prevent him from being employed. (Dec. 6, 7.) He conceded that the employee experienced an emotional reaction upon leaving his job as an administrator, but at the time of his evaluation was experiencing anxiety and depression over his heart condition. (Dec. 7.) Dr. Weiner concluded that the employee did not require psychiatric treatment for an industrial injury. (Dec. 7.)
We note that the employee's treatment for severe depression and his leaving employment predated his myocardial infarction and bypass surgery by several months. (Dec. 4, 5.) There was uncontroverted medical opinion that when the employee left work on March 1, 1993, he was suffering from depression causally related to the employment. (Dep. of Dr. Weiner 22, 24; Dep. of Dr. Rosso 16, 24.)
The judge found that the employee suffered from coronary artery disease which precipitated the myocardial infarction and subsequent surgery and had been experiencing chest pains for five years prior to the myocardial infarction. (Dec. 10, 11.) Additionally, the judge found that the employee had problems at work and experienced depression and inability to sleep. Adopting the medical opinions of Dr. Weiner and Dr. Thakur, in part, the judge concluded that "the employee does not have a mental illness or a psychiatric impairment that prevents him from performing gainful employment . . . [and t]hat the employee's disability is not work related." (Dec. 11.) The judge denied and dismissed the employee's claim. (Dec. 12.)
On appeal the employee raises several issues that have merit. One is dispositive. The judge's findings on the extent and duration of the claimed incapacity from a mental or emotional injury under § 1(7A) as well as its causal relationship to an event or events at work are inadequate to permit appellate review.
The reviewing board has outlined the necessary analysis when a mental or emotional disability is asserted. See Walczak v. Massachusetts Rehabilitation Commission, 10 Mass. Workers' Comp. Rep. ___ June 25, 1996), citing Robinson's Case, 416 Mass. 454 (1993). It is important to bear in mind that the injuries in Walczak andRobinson's Case predated the 1991 Act, which narrowed liability for mental or emotional injury by substituting the words "the predominant" for "a significant." The new standard applies in the case before us. The judge must first determine whether there was an event or series of events attributable to the employee's employment.Id. "This requires clear and precise findings of fact on what event or series of events the judge finds occurred, rather than statements of what witnesses testified." Id., slip op. at 4. Upon finding such events, the judge must then make findings as to whether specific and identifiable events occurring within the employment were a predominant cause of mental disability. Causal relationship between the work events and an emotional disability must be based on expert medical testimony, which may be considered in conjunction with lay evidence. See Josi's Case, 324 Mass. 415, 418 (1949); Lavoie v. Westfield Public School Systems, 7 Mass. Workers' Comp. Rep. 77, 81 (1993). If the judge finds that a work event or series of events were a predominant contributing cause of mental impairment, the judge must then determine whether the "disability ar[ose] principally out of a bona fide personnel action" without intentional infliction of emotional harm. G.L.c. 152, § 1(7A). In the decision at hand, we see no attempt to follow this statutory analysis beyond incomplete and imprecise findings on causal relationship and incapacity.
General Laws, c. 152, § 1 (7A), as amended by St. 1991, c. 398, § 14, is applicable to this case and provides in relevant part:
Personal injuries shall include mental or emotional disabilities only where the predominant contributing cause of such disability is an event or series of events occurring within any employment. . . . No mental or emotional disability arising principally out of a bona fide, personnel action including a transfer, promotion, demotion, or termination except such action which is the intentional infliction of emotional harm shall be deemed to be a personal injury within the meaning of this chapter.
Because the administrative judge no longer serves with the department, the case is referred to the senior judge for reassignment to another administrative judge for hearing de novo on the employee's claims. We suggest that in the interests of judicial economy and efficiency the case be decided, insofar as practicable and where there is no issue of credibility, on the transcript and evidence admitted by the prior judge. SeeNartowicz's Case 334 Mass. 684, 686 (1956).
So ordered.
_________________________ Sara Holmes Wilson Administrative Law Judge
_________________________ Carolynn N. Fischel Administrative Law Judge
_________________________ Edward P. Kirby Administrative Law Judge
Filed: December 31, 1996