ANDERSON v. NORWOOD HOSPITAL, No. 06366788 (Jun. 30, 1995)


AGNES ANDERSON, EMPLOYEE vs. NORWOOD HOSPITAL, EMPLOYER, SELF-INSURER

BOARD No. 06366788Commonwealth of Massachusetts Department of Industrial Accidents
Filed: June 30, 1995

REVIEWING BOARD:

Judges Kirby, Smith, and Maze-Rothstein.

APPEARANCES:

Thomas C. McDonough, Esq., for the employee.

Thomas O’Reilly, Esq., for the insurer.

KIRBY, J.

The self-insurer appeals from the decision of an administrative judge denying its request to discontinue compensation for an injury to the employee’s right knee, but dismissed without prejudice her claim for benefits relating to her back condition. The self-insurer raises a single issue on appeal and argues that the judge erred by dismissing the back claim “with qualifications” where a full hearing on the merits had been conducted. We affirm and amend the decision by eliminating the term “without prejudice.”

The employee, a medical technologist, fractured her right knee cap on September 23, 1988 after she tripped over a chair and fell while carrying blood cultures across a room. The self-insurer accepted the employee’s claim for benefits and paid § 34 temporary total incapacity compensation. Following a conference, the self-insurer’s discontinuance request was denied in an order filed on November 12, 1991. The order also allowed the employee to join a new claim involving her back.

After a full evidentiary hearing, the judge adopted the opinion of Doctor Roderick Turner, employee’s expert, finding that the employee continued to remain totally incapacitated and entitled to ongoing § 34 compensation, due to traumatic arthritis of the knee which was causally related to the 1988 industrial accident.[1] She, however, denied the claim for benefits due to the employee’s back condition, specifically rejecting the testimony of Doctor Scribner, the insurer’s expert, as unconvincing. While the judge found it credible that Ms. Anderson might have compromised her back when she injured her knee, she found, due to the “vagueness” of the deposition, the report, and letters of her medical experts, that “specifically the failure to demonstrate that there was some indication of trauma to Ms. Anderson’s back or some other causally related reasons, such as aggravation of a preexisting condition,” the employee failed to sustain her burden of proof on that issue (Dec. 10). The judge dismissed the back claim “without prejudice.”

The self-insurer contends that it was error for the judge to do so without prejudice after it was fully litigated. The record supports the dismissal as the employee had a full opportunity to litigate her claim and did so. A dismissal on a liability claim for lack of causation is final and is with prejudice. See Longerato’s Case, 352 Mass. 284
(1967).

When medical questions are beyond the realm of general human knowledge and experience, they must be decided on the basis of expert medical testimony. Josi’s Case, 324 Mass. 415, 418 (1949). Where there is conflicting medical evidence, it is within the judge’s authority to adopt none, all, or part of an expert’s opinion. Antoine v. Pyrotector, 7 Mass. Workers’ Comp. Rep. 337, 341 (1993), citin Amon’s Case, 315 Mass. 210 (1943). However, an expert’s opinion must be to a probability and not speculative, equivocal, vague, or unclear. Hachadourian’s Case, 340 Mass. 81, 86, (1959); Ralph’s Case, 331 Mass. 86, 90 (1954); Ross v. New England Tel.,
7 Mass. Workers’ Comp. Rep. 332, 335 (1993). It is the employee’s burden to establish her claims with proof by a preponderance of the evidence. Ginley’s Case, 244 Mass. 346, 348 (1923). In this case, the employee failed to meet that burden on her claim for back injury.

Accordingly, we affirm the decision in all other respects, but we amend the order of dismissal on the claim for injury to her back by striking the words “without prejudice.”

So ordered.

Judges Smith and Maze-Rothstein concur.

[1] The employee has had four right knee surgeries, cortisone treatment, and several medications, but remains symptomatic and in pain.