Opinion
BOARD No. 103138-86
Filed: December 19, 1995
REVIEWING BOARD DECISION
(Judges Maze-Rothstein, Kirby and Smith)
APPEARANCES
Sean Gleason, Esq., for the employee
Charles E. Chase, Esq., for the insurer
C F Underwriters
In this successive insurer liability case, C F Underwriters Group ("C F") appeals the decision awarding the employee §§ 34 and 35 benefits based upon a June 17, 1986 date of injury, when it was on the risk. Finding error, we vacate the decision and remand the case.
The employee, a thirty-three year old high school graduate was working for the first employer, Sharnet Corporation, insured by C F, as a machine operator when on June 17, 1986, she injured her back in an attempt to hoist a 300 pound roll of fabric. She treated conservatively and returned to work within a week, but was soon forced to leave when her back pain reasserted itself. She successfully returned to work in August of 1986 and continued working until she left Sharnet in February of 1987 believing that her work there contributed to her continued pain. (Dec. 7-8.)
The judge stated the injury occurred on June 16, 1986. The record demonstrates, however, that June 17, 1986 is the correct date. (Dec. 5, 6.)
Upon leaving Sharnet, the employee began working in the bindery at Diversified Business Systems (hereinafter, "Diversified") in February of 1987. The employee testified that while working at Diversified she was in pain, but that the severity did not prevent her performance of job duties. In the summer of 1987, the employee was transferred from the bindery to another department at Diversified where she operated a printing press. Her pain persisted, despite changed duties, but nevertheless remained tolerable. (Dec. 8.)
On September 1, 1989, while straining to loosen a recalcitrant bolt in an attempt to repair her printing press, the employee felt a sudden snap and pop in the same part of her back that had been previously injured. She testified that the intensity of pain was similar to that which she had felt during the 1986 injury. This was the employee's last day at Diversified. (Dec. 8, 9.)
At various points, Diversified was insured by Travelers Insurance Co. ("Travelers"), Royal Insurance Co. ("Royal"), and Public Service Mutual Insurance Co.("Public"). (Dec. 4.)
Travelers insured Diversified from January 10, 1987 to January 9, 1989; Royal insured Diversified from January 10, 1989 to May 31, 1989; and Public was on the risk for Diversified from June 1, 1989 to April 1, 1990. Public was the insurer on September 1, 1989 when the employee left work. At conference, the administrative judge allowed a motion of the insurer, C F, to join Travelers and Royal as parties to the action. After hearing, the administrative judge allowed the motions of Royal and Travelers to rescind the Order of Joinder and denied C F's motion to join Public. (Dec. 5.) This last insurer on the risk, Public, was never a party to the case and as such, did not have its rights adjudicated.
The judge found that the employee's injury on or about September 1, 1989 was not a new injury or aggravation, but a recurrence of the initial June 17, 1986 industrial accident. He, therefore, ordered §§ 13, 30, 34 and 35 compensation, benefits from that date onward assessing liability against the first insurer C F, who had insured the previous employer, Sharnet, in June of 1986. C F appeals for this decision.
This appeal takes its place in a long line of successive insurer cases where the conflict revolves around which insurer is liable, the one on the risk at the time of the original injury or the one on the risk at the time of the subsequent injury. As a general rule, ". . . subsequent incapacity must be compensated by the one which was the insurer on the risk at the time of the most recent injury that bore causal relation to the incapacity." Evans's Case, 299 Mass. 435, 437 (1938). A second injury is chargeable to the subsequent insurer if it contributes, even to the slightest extent, to the employee's incapacity. Rock's Case, 323 Mass. 428, 429 (1948). However, if the incident makes no contribution to incapacity, then the second insurer will not be held liable. Smick v. Town of Southbridge, 7 Mass. Workers' Comp. Rep. 84, 86 (1993); Radke v.Eastham Foundations, 7 Mass. Workers' Comp. Rep. 197, 200 (1993).
When the administrative judge determines causation in instances of successive injuries, he must decide whether the employee's incapacity results from both injuries, or solely from one or the other injury. If incapacity derives from both, then the second insurer is held liable. In resolving the issue of causation, there are cornerstones upon which a foundation for the determination can rest. For example, in cases where the claimant manifests continual complaints of pain, courts are inclined to conclude that there was no disabling second incident, and find that the current symptoms are a recurrence of the original injury. Id.; see also Rock's Case, supra at 429; Costa's Case, 333 Mass. 286, 288 (1955). In cases where the employee has experienced only occasional or no continuing pain, and is later incapacitated by a significant increase or aggravation, courts will normally find a new compensable injury. See Barbieri v. Johnson Equip., 8 Mass. Workers' Comp. Rep. 71, 74 (1994), citing Trombetta's Case, 1 Mass. App. Ct. 102, 105 (1973).
Thus, the pivotal question is whether the incapacity is a natural progression of the original injury or is the result of a new compensable injury. To be compensable against a second, rather than against a first insurer, "the harm must arise either from a specific incident or series of incidents at work, or from an identifiable condition that is not common and necessary to all or a great many occupations." Zerofski's Case, 385 Mass. 590, 594-595 (1982).
Applying this test to the present case, the employee sustained the initial injury to her back on July 17, 1986. After the employee returned to work she remained productive until the incident of September 1, 1989 while working for the subsequent employer. This second incident, was identifiable and occurred while the employee performed a task that could cause injury even to those who are hale and hardy. We note that the employee experienced pain between the first injury and the second injury, however it did not prevent her from working. Although the evidence points to a second injury, we are unable to conclude that is the only outcome that could be had. Compare Messersmith's Case, 340 Mass. 732, 739-740 (1959). Rather, we vacate and remand for a further findings consistent herewith.
It appears that the judge made a factual finding that a second injury occurred during the 1989 incident causing "a sudden onset of popping and snapping in the same part of her back that had been injured previously in 1986" which resulted in "sharp pains, lost . . . feeling in her right arm, and the pain went from her head down to her waist." (Dec. 8-9.) However, because the decision is replete with recitation rather than clear and specific findings of fact, it is impossible to tell. See Squires v. Beloit Corp., 9 Mass. Workers' Comp. Rep. 260, 262-264 (1995) (discussing successive insurers and necessity for clear findings of fact).
The judge adopted the causal opinions of Drs. Masterman and Shields. Dr. Masterman opined that incapacity after September 1, 1989 was a recurrence with increasing symptomatology. However, he reported no history of the incident involving loosening the bolt that occurred on that date. (Employee's Exhibit 2.) Dr. Shields characterized the employee's condition as a recurrence of the initial injury. But he also opined that the employee exacerbated her condition and injured herself in the incident of September 1, 1989. (Insurer's Exhibit 3.) It would have been the better practice for the parties to explore further the nature of the 1989 injury because if the second injury was a temporary aggravation, the successive insurer could be charged for only the duration of the aggravation. Any residual disability causally connected to the first injury would then revert to the first insurer. See Rock's Case, 323 Mass. at 430.
Because the evidence as found by the judge leans toward a second injury, the subsequent insurers should remain parties to the case. As such, we vacate the administrative judge's rescission of the joinder of Travelers and Royal, to the case. We reverse the judge's denial of C F's motion to join Public and order of Public joined. See (Exhibit A.) "[C]laims against successive insurers for compensation for a single disability [as here] are treated as constituting a single proceeding."Borstel's Case, 307 Mass. 24, 27 (1940); see also Blanco's Case, 308 Mass. 574, 577 (1941); Abrogast v. McCord-Winn, 5 Mass. Workers' Comp. 189, 198 n. 9 (1991). Since the case is on remand, the "proceeding" continues. Thus, the insurers were and now are still are parties to it. Borstel's Case, supra at 27.
The judge denied this motion on March 25, 1992, allowing Travelers and Royal out of the case and keeping Public Service out. C F's motion for reconsideration of the motion to join Public Service was denied again on June 19, 1992.
Because we have vacated the decision in the case at bar, we do not reach the issue of the § 13A fee to the employee's counsel. However, if on remand the administrative judge finds that the employee was injured on June 17, 1986, then G.L.c. 152, § 13A(7) as added in St. 1985, c. 572, § 28A, and amended by St. 1987, c. 691, § 8 would apply to the case. See St. 1991, c. 398, § 35 (G.L.c. 152, § 13A(7) is now § 13A(9) after the 1991 amendments in the act). Alternatively, if on remand a finding is made that a second compensable industrial injury occurred on or about September 1, 1989, then § 13A(5), as amended by St. 1991, c. 398, § 35 would apply.
Accordingly, we vacate and remand the matter of the subsequent injury to the administrative judge for additional findings consistent with this opinion. During the pendency of the rehearing, the status quo shall be maintained vis-a-vis payment of weekly benefits. Section 15A adjustments may be made when appropriate.
So ordered.
_________________________ Susan Maze-Rothstein Administrative Law Judge
_________________________ Edward P. Kirby Administrative Law Judge
_________________________ Suzanne E.K. Smith Administrative Law Judge
Filed: December 19, 1995