BADOLATO v. CRYSTAL MOTOR EXPRESS, INC., No. 26381-87 (Feb. 27, 1996)


William J. Badolato, Employee, v. Crystal Motor Express, Inc., Employer, Liberty Mutual Ins. Co., Insurer

BOARD No. 26381-87Commonwealth of Massachusetts Department of Industrial Accidents
Filed: February 27, 1996

REVIEWING BOARD DECISION

(Judges Fischel, McCarthy and Wilson)

APPEARANCES

William J. Pasquina, Esq., for the employee

Jean M. Shea, Esq., for the insurer

FISCHEL, J.

The insurer appeals from a decision which awarded continuing § 35 partial incapacity benefits, alleging error of law in the finding that the issue of causal relationship cannot be raised once liability has been accepted. We agree, that an earlier finding of causal relation does not preclude an insurer at later hearing from again raising the issue. Himmelman
v. A.R. Green Sons, 9 Mass. Workers’ Comp. Rep. 99, 101 (1995). An employee has the burden of proving each element of his claim. Id. The judge’s misapprehension of the burden of proof necessarily makes his decision wrong as a matter of law. Id. We vacate the decision.

The employee, a 53 year old truck driver with a ninth grade education, injured his back on May 7, 1987 while lifting ninety pounds of freon. (Dec. 4, 5) The insurer paid total incapacity benefits under § 34 until the maximum was exhausted on March 24, 1992. The employee filed claim for § 34A permanent and total incapacity benefits and, after a conference on November 19, 1992, a judge ordered payment of § 35 partial incapacity compensation based on an earning capacity of $200.00 per week and an average weekly wage of $536.07. (Dec. 1) Both parties appealed to hearing.

Dr. John S. Ritter conducted the § 11A medical examination on January 19, 1993 and confined his opinion to his findings on that date.[1]
(Dec. 8, 10) The employee filed a motion requesting leave to submit his own medicals, maintaining that the § 11A report was inadequate. The judge denied the motion.

At hearing the employee and an insurer investigator testified, and the report and deposition of Dr. Ritter were admitted as exhibits. Thereafter the judge filed a decision in which he found that prior to the work injury the employee had been in good health and had done physically demanding work for thirteen years without any accidents. (Dec. 10-11) The judge found that the employee had been asymptomatic prior to his injury of May 7, 1987, and that his present symptoms and complaints of pain were credible and related to the lifting incident at work on May 7, 1987. (Dec. 11) He credited the employee’s testimony as to constant pain in his back, right hip, leg and knee to his groin area. (Dec. 5, 10-11) He recited the the opinion of Dr. Ritter that the employee could work full time with restrictions against heavy lifting, continuous bending, or working in a flexed position, which the doctor attributed to a preexisting condition of spondylisthesis. (Dec. 8) The judge rejected the opinion of Dr. Ritter that the employee’s medical disability was not causally related to the May 1987 injury. Had the judge based this finding on his facts found as to the non-existence of prior symptomotoloy, and the opinion of Dr. Ritter that in such event the industrial injury would be a significant producing factor of the employee’s pain (Dep. p. 35), such conclusion would be affirmable.[2]
However, the judge stated that he was rejecting the medical opinion of Dr. Ritter because “[c]ausal relationship has been established by acceptance of the original claim . . . and the insurer may not now raise causal relationship as an issue. . . .” (Dec. 10-11)

The insurer in this appeal correctly argues that it was error of law to find that causal relationship cannot be raised once liability has been accepted. See Himmelman v. A.R. Green Sons, supra, at 101. While the insurer had accepted initial liability and acknowledged the causal relationship of a medical condition at the time of injury, the insurer has a right, at a later point in time, to question whether a present medical condition remains causally related to the work injury and its sequelae. Id. The employee has the burden of proof as to all elements of his case. Courage v. General Electric, 7 Mass. Workers’ Comp. Rep. 212 (1993).

The insurer raises a second issue on appeal, contending that where the judge found the § 11A report was adequate, and where the § 11A medical opinion was prima facie evidence and the only expert opinion in evidence, the judge was required to adopt the opinion of the statutory examiner. Determination as to the probative value of medical opinion is clearly the province of the administrative judge. Amon’s Case, 315 Mass. 210 (1943). A § 11A medical report may be “adequate” in the sense that it supplies answers to the questions raised in § 11A(2), but as with other expert opinion, a judge may determine that the opinion lacks probative value if he discounts portions of the testimony of the expert based on other evidence. See Woolfall’s Case, 13 Mass. App. Ct. 1070, 1071 (1982). Evidence of a nonmedical nature may be found by the judge to contradict the expert’s opinion on causation. Robinson v. Contributory RetirementAppeal Board, 20 Mass. App. Ct. 634, 640 (1985). He may reject the report’s probative value if, for example, the § 11A opinion rests upon a history which the judge rejects as fact. If the judge determines that the § 11A opinion must be rejected, and expert evidence is necessary to address medical issues in the case, additional medical testimony may be required in order for the employee to meet his burden of proof. See Mendez
v. The Foxboro Co., 9 Mass. Workers’ Comp. Rep. ___ (October 31, 1995).

A judge may reject even uncontradicted medical opinion so long as there exists a basis for such rejection on the record, and if the judge’s determination is accompanied by clear and sufficient findings that support the conclusion. See Id.; Cook v. Somerset Nursing Home, 8 Mass. Workers’ Comp. Rep. 164, 166 (1994); Jones v. Sylvania Products, 7 Mass. Workers’ Comp. Rep. 347, 349 (1993).

When the issues of causation and extent of medical disability are beyond the common knowledge and experience of the layperson, a judge must rely on expert medical testimony. Id.; Galloway’s Case, 354 Mass. 427, 431 (1968). The employee notes in his brief that a judge may find causal relationship despite the absence of supportive expert medical opinion, citing Lovely’s Case, 336 Mass. 512 (1957), and Long’sCase, 337 Mass. 517 (1958). We agree that there are cases where a judge might find that the medical issues presented were not beyond the lay expertise of the fact finder. However in this case the judge did not maintain that no expert opinion was needed, but rather that medical causal relationship could not be disputed once a case was accepted.

Because this decision contains legal error as to the ability of the insurer to dispute ongoing causal relationship, we vacate the decision and restore the conference order effective with the filing of this decision. This matter is remanded to the judge for further proceedings. In his discretion, the judge may take such additional evidence as he finds necessary before filing his decision anew.

So ordered.

_________________________ Carolynn N. Fischel Administrative Law Judge
_________________________ William A. McCarthy Administrative Law Judge
_________________________ Sara Holmes Wilson Administrative Law Judge

Filed: February 27, 1996

[1] The judge notes that the § 11A examiner lacked any opinion as to medical disability prior to his January 19, 1993 examination. (Dec. 8, 10) The issue of entitlement to § 34A arose as of the § 34 expiration date of March 24, 1992. Where the sole medical examiner rendered no opinion as to the medical issues presented during the time interval between March 24, 1992 and January 19, 1993, additional medical opinion should be admitted so that the employee may have an opportunity to meet his burden of proof as to medical disability issues during that time period. George
v. Chelsea Housing Authority, 10 Mass. Workers’ Comp. Rep. ___ (January 25, 1996)
[2] Dr. Ritter testified that assuming that it was true that the employee had no pain symptoms prior to the work injury, then the lifting incident would be a significant producing factor of his pain. (Dep. p. 35) The judge found as a fact that the employee had performed physically demanding work for years without injury or symptoms. Based on the facts credited by the judge, the opinion of Dr. Ritter could be taken to support a finding of causal relationship of the employee’s pain.