BOARD No. 02706994Commonwealth of Massachusetts Department of Industrial Accidents
Filed: April 10, 1998
REVIEWING BOARD DECISION
(Judges Maze-Rothstein, McCarthy and Smith).
Donald W. Hansen, Esq., for the employee.
William H. Murphy, Esq., for the insurer.
The self-insurer appeals a decision which awarded the employee G.L.c. 152, § 35 partial incapacity weekly benefits for a carpal tunnel impairment. The self-insurer asserts error because the only medical evidence in the case is the § 11A report and it established no causal connection between the employee’s work as a stenographer and her diagnosed bilateral carpal tunnel syndrome. We agree, reverse the decision, and recommit the case for further proceedings consistent with this opinion. See G.L.c. 152, § 11C.
In early 1994, after forty-two years of work as a hospital stenographer, the employee began to experience pain in her right wrist. (Dec. 4-5.) She treated conservatively with her employer’s Occupational Health Services Department and continued to work, with frequent breaks, wearing a splint. By July 1994, not only was there no improvement, but her left wrist had begun to trouble her. (Dec. 5.) So Allie sought a second opinion from a physician at the Harvard School of Public Health, who advised her to cease working, rest her hands and use splints only when resting. Before leaving work for good on September 15, 1994, she attempted to work without typing, but still had pain in both wrists and hands. (Dec. 5.)
The self-insurer resisted the employee’s claim for workers’ compensation benefits and a § 10A conference resulted in an order of § 35 partial incapacity weekly benefits. (Dec. 2.) The self-insurer sought a hearing de novo.
On December 11, 1996, the employee had a statutory medical examination. G.L.c. 152, § 11A. (Dec. 6.) In his report the § 11A doctor diagnosed mild bilateral carpal tunnel syndrome and opined that the employee could return to her typing duties if she wore her wrist splints or wrist rests at the computer. The doctor concluded that she had not reached a medical end result, but exhibited no objective indication of impairment. (Dec. 7.) The § 11A report was entirely silent as to the causal relation between the employee’s work and the diagnosed carpal tunnel condition. (Statutory Ex. 1.) Despite the complete absence of a causal relation opinion, neither party moved to introduce additional medical evidence by requesting a finding of the report’s inadequacy. (Tr. 5.) See G.L.c. 152, § 11A(2). Inexplicably, the judge found the report was adequate. (Dec. 7.)
The judge credited the employee’s complaints of pain in both wrists and numbness in both hands. (Dec. 7.) He found that the § 11A report had established causal relationship, “By reasonable inference after reading his report. . . .” (Dec. 7.) The judge went on to find “clear causal relationship” between the employee’s work and her injury, based on her 42 years with the same employer, performing repetitive typing motions. (Dec. 7-8.) While he adopted the § 11A physician’s opinion that the employee was partially medically disabled, the judge rejected the doctor’s view on the extent of the partial impairment because it did not take into account her decreased symptomatology that the judge inferred was due to a year’s absence from her repetitive motion typing work. (Dec. 8, 10.) Moreover, he credited the employee’s assertion that she could not return to her prior typist position. (Dec. 8.) After assessing her vocational background, the judge found that the employee had transferable skills that would enable her to earn up to $320.00 per week and awarded her § 35 partial incapacity benefits. (Dec. 9, 10, 12.) We have the self-insurer’s appeal.
The self-insurer argues a number of issues, two of which are dispositive. We agree that the decision is contrary to law insofar as the judge found causal relationship without a supporting medical opinion. “[W]hether the accident . . . was the proximate cause of the ensuing disability was a matter beyond the common knowledge and experience of the ordinary layman, and proof of any causal relation between the accident and the disability must rest upon expert medical testimony.” Josi’s Case, 324 Mass. 415, 417-418 (1949). The § 11A physician’s report simply contains no reference whatsoever to causal relation between the employee’s work and her carpal tunnel syndrome. (Statutory Ex. 1.) While a judge can consider a medical opinion of something less than a probability of causal relation in conjunction with the lay testimony to find that causal relation exists, see Bedugnis v. Paul McGuire Chevrolet, 9 Mass. Workers’ Comp. Rep. 801, 803 (1995), he cannot so find in the complete absence of a medical opinion on that disputed issue. Such is the present case. We reverse the decision on this basis.
The transformation of no opinion to an opinion, labeled a “reasonable inference” stretches the meaning of that concept beyond recognition. Inferences may extend from basic evidentiary facts or from stipulated facts. See Commonwealth v. Pauley, 368 Mass. 286, 290-299 (1975). (Discussing mandatory and permissive inferences in both civil and criminal law). An inference can not be based on speculation or conjecture. In complex matters, a mere temporal correlation does not establish medical causation. Where the basic fact, i.e. causal relationship, requires expert opinion evidence, without it there is nothing from which to draw an inference. It is not probable to a reasonable degree of medical certainty, that the work environment caused the employee’s carpal tunnel condition simply because the judge says it is a matter of “substantial assurance.” Id. This is not a situation where only one inference is reasonable within the context of the case and the realm of human experience. See Brady v. The Great Atlantic andPacific Tea Co., 336 Mass. 386 (1957). The judge’s “inference” cannot be accorded any weight. See Simon v. WeymouthAgricultural Industrial Society, 389 Mass. 146, 148 (1983) (credibility calls will not be set aside unless clear error, but permissive inferences drawn from basic facts are entitled to no weight at the appellate level).
Further, because of its fundamental deficiency, it was error to afford this § 11A medical report the position the exclusive prima facie medical evidence in the case on the issue of causation. “Where no § 11A opinion was offered on the relationship of the carpal condition to the repetitive work in contention, there was nothing in that regard to which prima facie weight [under the mandate of § 11A(2)] could apply. Thereby, the report [should have been] deemed inadequate in that it failed to sufficiently address a contested aspect of causation. G.L.c. 152, § 11A(s)(iii).” Mendez v. The Foxboro Company, 9 Mass. Workers’ Comp. Rep. 641, 646 (1995). In this case, as in others we have addressed,
despite a glaring omission neither party moved to present additional medical evidence on the basis of the report’s inadequacy.
However, faced with a claim he believed to be meritorious and with an inadequate impartial report, the judge should have exercised his authority to sua sponte require additional medical evidence. See § 11A(2). Such approach, in the circumstances of this case, 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)]. Because the judge instead attempted to plug the evidentiary hole with his own causation opinion, the decision cannot stand.
Wilkinson v. City of Peabody, 11 Mass. Workers’ Comp. Rep. 263, 265 (1997) (footnote added). Therefore, even though the employee shoulders the burden of proof as to every element of his claim throughout the hearing, see Ginley’s Case, 244 Mass. 346, 347-348
(1923), § 11A imposes upon the judge an obligation to scrutinize the statutorily-provided medical evidence to ensure that “the statute . . . is administered fairly and reasonably, giv[ing] the contestants ample opportunity to be heard and to have considered the merits of their contentions.” O’Brien, supra at 24. If the merits of the employee’s claim cannot be reached due to a failure in the § 11A statutory — not the employee’s — evidence and the judge feels the claim has merit, then he should intervene, regardless of the practitioners’ inaction. Such is the impact of § 11A on a formerly purely adversarial process. See Lebrun v.Century Markets, 9 Mass. Workers’ Comp. Rep. 692, 696 (1995) (“the [§ 11A(2)] power to rule on adequacy and complexity makes the judge the gate keeper of on the accuracy of the medical evidence.”) We note as this case has generated the additional demands of an appeal, that both parties’ interests would have been better served by acknowledging the flaw in the § 11A report, via a motion for additional medical evidence. See O’Brien, supra at 22 (foreclosure of further medical evidence “necessary to present fairly the medical issues would represent grounds for reversal or recommittal.”)
The self-insurer also contends that disregard of the § 11A doctor’s opinion on the extent of disability was erroneous. We agree. To the extent that the § 11A report was deemed adequate at all, and was the exclusive prima facie medical evidence in the case, the findings that could be properly drawn from that evidence were mandatory. See Cook v. Farm Services Stores, Inc., 301 Mass. 564, 566 (1938). The doctor opined that the employee “could return to work if she wore her wrist splints or wrist rests at the computer or typewriter.” (Statutory Ex. 1.) The factual conclusion compelled by this prima facie evidence is just what it says: she could perform her old job with the stated assistance. The judge rejected this opinion on the basis that the employee’s absence from the causative environment of repetitive motion for over a year “would naturally reflect a decrease in symptomology [sic].” (Dec. 8.) The inference, while not without logic, is not supported by any additional or different facts than those available to the § 11A physician in reaching his prima facie conclusion. The § 11A report is accurate in its recounting of the chronology of the employee’s complaints, culminating in her leaving work on September 15, 1994. The examination took place on December 6, 1996. With that history and the employee’s physical exam on that date, the doctor concluded that she could return to work. The judge’s inference to the contrary usurps the doctor’s medical conclusion without any support in the record that differs from what the doctor himself relied on. That inference is prohibited as a matter of law on this record. See Commonwealth v. Pauley, 368 Mass. 286, 290-291 (1975) (for discussion of prima facie statutorily required inferences).
The decision is contrary to law. We, therefore, reverse it and recommit the case for the allowance of additional medical evidence and further findings consistent with this opinion.
____________________ Susan Maze-Rothstein Administrative Law Judge
____________________ William A. McCarthy Administrative Law Judge
____________________ Suzanne E.K. Smith Administrative Law Judge
Filed: April 10, 1998
The report of the impartial medical examiner shall, where feasible, contain a determination of the
following: (i) whether or not a disability exists, (ii) whether or not any such disability is total or partial and permanent or temporary in nature, and (iii) whether or not within a reasonable degree of medical certainty any such disability has as its major or predominant contributing cause a personal injury arising out of and in the course of the employee’s employment. Such report shall also indicate the examiner’s opinion as to whether or not a medical end result has been reached and what permanent impairments or loss of function have been discovered, if any. Such impartial physician’s report shall constitute prima facie evidence of the matters contained therein.