Opinion
Board No. 27970-90
Filed: February 28, 1995
REVIEWING BOARD:
Judges Kirby, Maze-Rothstein, and Smith.
APPEARANCES:
Ronald C. Kidd, Esq., for the employee.
Andrew P. Saltis, Esq., for the insurer.
William Wilson appeals from the decision of an administrative judge which denied his claim of compensation for a back injury on April 2, 1990 resulting in incapacity commencing May 7, 1990. Because the decision does not disclose the legal standards which the judge applied to the claim and fails to address key factual issues, it is inadequate for appellate review. Consequently, we remand for further findings of fact and conclusions of law.
William Wilson worked as a carpenter for Perkins and LaFrance on Nantucket Island. On Monday April 2, 1990, while unloading lumber from a flatbed truck, he felt a pull in his back. (Dec. 4.) The judge made no finding concerning Wilson's testimony that he experienced lower back pain which later went down to his hip and buttocks. (Tr. 7.) Wilson sought no immediate medical treatment. He continued working until noon and then told his supervisor about the incident and went home to bed. He stayed out of work the next day due to back pain. The judge found that he then returned to his employment. However, Wilson testified that he stayed in bed for two days following the injury and then returned to work on the third day, April 5, 1990. The judge recognized Wilson's testimony that he had good and bad days thereafter, but made no explicit credibility call concerning Wilson's allegations of continuing back pain and problems with his left leg. (Tr. 9.)
On April 30, 1990, Wilson was lifting a piece of furniture in his house and experienced further symptoms which the judge described as severe back pain radiating into his toes. Wilson sought treatment with his friend Dr. Timothy J. Lepore. The judge made no finding regarding the employee's testimony that he continued to work after April 30th. (Tr. 12.)
On May 6, 1990, because of persistent pain, Wilson again sought treatment from Dr. Lepore who then referred him to a hospital on the mainland to obtain a CATscan [ sic]. The Catscan [ sic] revealed a herniated disc at L5-S1 for which Wilson underwent surgery on May 17, 1990. Both Dr. Lepore and Dr. Martin, the surgeon, opined that the work incident of April 2, 1990 was causally related to the employee's symptoms and subsequent surgery. The judge rejected their causation opinions and relied instead, on the opinion of Dr. Angela O'Neal that Wilson's disability was causally related to an injury he sustained on April 30, 1990 while moving furniture at home. The judge failed to comment on Dr. O'Neal's opinion that Wilson's problems were also related to the work incident of April 2, 1990. (O'Neal Dep. 9, 15, Insurer's Dep. Ex. 2.) After surgery, Wilson recuperated and returned to work in October, 1990.
In her report of June 26, 1990, Dr. O'Neal opined that there "appears to be causal relationship between the above mentioned diagnosis [status post lumbar laminectomy for a herniated disc at L5-S1] and the incident in question." At deposition she testified:
"Q: Could you differentiate between the April 30th or May 1st 1990 incident and the April 2nd, 1990 incident as to which of the two you felt played the more significant role in any disability which he may have had after that?
A. Well, I think that the April 30th was the causal event to the disc herniation although he had a predisposing event clearly on April 2nd. . . ." (Dep. 9.)
When asked to clarify to which incident she was referring in her report, she testified:
"However, I feel there are two incidents here . . . I frankly think this is ambiguous.
Q. Fair to say, Doctor, that your opinion today is that Mr. Wilson's problem for which he was treated, the herniated disc at L-5, S-1 level is related to both incidents in the medical causal sense?
A. Yes. Absolutely related to both incidents.
Q. You're [ sic] theory he was predisposed by the industrial accident to have the incident which occurred at home?
A. Yes.
Q. And as I understand it, your theory is essentially based upon the patient's reports of pain, is that correct?
A. His reports of pain, his reports of disability and his reports of neurological deficits." (Dep. 14-15.)
Based on these subsidiary findings, the judge concluded that Wilson sustained a back injury on April 30, 1990 while moving furniture at his residence. Adopting the medical opinion, in part, of Dr. Angela O'Neal, the judge found no causal relationship between the employee's medical symptoms and his employment. The judge therefore denied the claim.
On appeal, the employee asserts that the judge's subsidiary and ultimate findings are unsupported by the evidence and that the decision is inadequate for appellate review. We agree that the decision fails to confront and determine key factual issues and does not disclose the legal standards which the judge applied to the facts he found. We therefore conclude that the decision is inadequate for appellate review and must be remanded.
Wilson maintains that, based on the evidence, the judge was compelled to find as a fact that his incapacity commencing May 7, 1990 was causally related to his work injury of April 2, 1990. We are unable to adequately respond to this argument. Section 11C requires us to consider whether the decision is factually warranted and not "[a]rbitrary or capricious," in the sense of having adequate evidentiary and factual support and disclosing reasoned decision making within the particular requirements governing a workers' compensation dispute. Scheffler's Case, 419 Mass. 251, 258 (1995); G.L.c. 152, § 11C.
The decision does not disclose the basis for the claim denial. We therefore are unable to ascertain whether the judge made legal errors in rendering the decision. Based on this record, we find that the potential for legal error exists.
If an employee is injured on the job and continues to work, the fact that the injury is aggravated by subsequent non-work events does not necessarily defeat the claim for compensation. See Twomey v. Greater Lawrence Visiting Nurses Assoc., 5 Mass. Workers' Comp. Rep. 156, 158 (1991) (if a second period of disability follows a non-work activity which is a normal and reasonable activity, not performed negligently, compensation is due if the second disability period is the natural and proximate result of the original injury); Gulczynski v. Granada Hospital Group, 7 Mass. Workers' Comp. Rep. 151, 152 (1993) (when expert medical testimony is adopted by a judge that establishes causal relationship between an originally compensable injury and a condition that combines with or aggravates the preexisting injury, the condition is compensable).
According to Locke, an insurer is responsible for all the consequences of a work injury, provided causal connection is shown and the chain of causation has not been broken by the intervention of some independent agency. 29 Mass. Practice, Workmen's Compensation (2nd ed. 1981) § 222. Locke's view is consistent with the court in Roderick's Case which said that the supervening of a noncompensable injury does not excuse the insurer from paying the compensation which would otherwise be payable for a compensable injury. 342 Mass. 330, 334 (1961), citing Whitehead's Case, 312 Mass. 611, 613 (1942). Recent reviewing board cases have also followed this dicta. See, for example, Carroll v. Raytheon Company, 8 Mass. Workers' Comp. Rep. 342 (1994) (a non-work-related ankle injury did not in itself break the causal chain between the employee's original back injury and his ongoing incapacity based in part on the continuing back condition).
If the judge denied the claim on the basis of the April 30, 1990 injury, he may have erred. Despite this second injury, compensation may be awarded so long as the incapacity results from the work injury. G.L.c. 152, § 34. In a case such as this, expert medical opinion of causation is required. See Degregorio v. Ceco Construction Co., 6 Mass. Workers' Comp. Rep. 213, 216 (1992) (medical causation opinion testimony is required unless causation is clear to a reasonable person who has no medical training).
All the expert medical witnesses in this case found a causal connection between the work injury and the resulting surgery and incapacity. Nevertheless, it is within the administrative judge's authority as fact finder to determine the probative value of the testimony and reject it if he finds it unpersuasive. However, in rejecting uncontradicted medical testimony, the judge must clearly and sufficiently express his reasons for doing so. Kilroy v. Zam Cul/Norfolk Bristol Ambulance, 4 Mass. Workers' Comp. Rep. 381, 383 (1990); Robinson v. Contributory Retirement Appeals Board, 20 Mass. App. Ct. 634, 639 (1985).
On the one hand, based on this record, the judge could award benefits if he found a causal relation between the initial work injury and incapacity commencing on May 7, 1990. On the other hand, the judge could disregard the experts' causation opinions, if he found them without probative value, unreliable, or unsupported in the evidence. Disbelief of the history the employee gave the doctors would be a rational basis for such disregard. Haywood's Case, 4 Mass. Workers' Comp. Rep. 234, 237 (1990), after remand, 5 Mass. Workers' Comp. Rep. 287, 288 (1991).
In summary, because we find the decision flawed, we vacate it and remand the case to the administrative judge for a new decision consistent with this opinion. In light of the passage of time during the pendency of the appeal, if either party alleges a change in medical condition or vocational skills since the date the record closed or the judge finds that justice so requires, additional evidence may be taken prior to the entry of the remand decision.
So ordered.
Judges Kirby and Maze-Rothstein concur.