BARRADAS v. CLIFTEX CORP., No. 082361-90 (Apr. 30, 1996)


Maria Barradas, Employee v. Cliftex Corp., Employer, Cigna Companies, Insurer

BOARD No. 082361-90Commonwealth of Massachusetts Department of Industrial Accidents
Filed: April 30, 1996

REVIEWING BOARD DECISION

(Judges Smith, Maze-Rothstein and Kirby)

APPEARANCES

Goncalo M. Rego, Esq., for the employee

Steven O’Connell, Esq. at hearing, Lisa S. Molodec, Esq. on appeal, for the insurer

SMITH, J.

The employee appeals from the denial of her claims for compensation. She asserts that the judge erred in disregarding the impartial medical examiner’s causation opinion. Because the decision is inadequate for appellate review of this issue, we remand for further findings of fact regarding the evidence on which the judge relied to meet and overcome the prima facie opinion of the § 11A impartial medical examiner.

FACTS

Barradas, a 39 year old with a fourth grade education and a work history exclusively as a “stitcher” or “marker”, sustained an industrial injury to her back on January 24, 1989 while working as a “stitcher” for Cliftex Corporation. She received workers’ compensation benefits for this injury from Liberty Mutual Insurance Company. When Barradas returned to work after her back injury, she worked in a light duty capacity as a “marker”. Her job duties included using various types of instruments such as felt tip pens to trace markings onto particular garments. (Dec. 5.) On March 5, 1990, INA/CIGNA Companies (Cigna) came on the risk. (Dec. 8.)

During the period of Cigna’s coverage, on October 1, 1990, while marking coats Barradas felt some pain in her left wrist. She reported it to Al, her supervisor, as well as to Madalena Teixeira, a co-worker. She went to the plant nurse, Elaine Lims, who gave her a wrist bandage and a glove. She then returned to her work station and finished the shift. At the close of the shift, the plant nurse referred Barradas to the local walk-in clinic where she was diagnosed as having a sprained wrist. She was treated with a wrist splint and was assigned to light duty work. (Dec. 5-7; Tr. 72-74.) Her condition was later diagnosed as left carpal tunnel syndrome. (Dec. 11; Harris Dep. 5; Harris Rep. 1-2.)

On or about December 10, 1990, Barradas left work because of the previous injury to her back which had been diagnosed as a disc herniation at L4-5 (Dec. 7.) She filed claims against Liberty Mutual and Cigna for the back injury and settled them by way of a lump sum agreement on October 30, 1991. (Dec. 8.); see G.L.c. 152, § 48.

Subsequently, on June 25, 1992, Barradas filed the pending claim for §§ 34, 13, 30, and 36 compensation benefits for a October 1, 1990 wrist injury. A § 10A conference was held pursuant to 452 CMR 1.10(2)[1] and § 11A(2)[2] . When the judge denied the employee’s claim, she appealed for a de novo hearing. (Dec. 1.)

The impartial medical examiner reviewed the medical records, examined Barradas and rendered a medical report. Dr. Harris opined with a reasonable degree of medical certainty that Barradas suffered from carpal tunnel syndrome in her left wrist which was causally related to the October 1, 1990 incident at work. (Dec. 11-12[3] .) Neither party requested additional medical evidence on the grounds of inadequacy of the report or complexity of the medical issues. See G.L.c. 152, § 11A(2). Nor did the judge exercise his independent authority under § 11A(2) to authorize the submission of additional medical evidence.

Nonetheless, the administrative judge rejected the impartial medical examiner’s opinion finding that the “. . . failure to report the two prior episodes of pain is sufficient to distort the history to the point where the doctor could not have said with any degree of reasonable medical certainty that the carpal tunnel syndrome was as a direct result of something that occurred on October 1, 1990.” (Dec. 12.) He also relied on absence of medical treatment and the concurrent pursuit of a back injury claim. He wrote: “Since it is clear from the record that the employee sought no direct treatment for alleged carpal tunnel syndrome for a period of time in excess of twenty months subsequent to the onset of the symptoms, I find that this fact, coupled with the fact that the claimant was, at the same time, actively pursuing a workers’ compensation claim for a back injury, is sufficient to warrant my conclusion that there is a significant question as to the establishment of the requirement to meet the burden of proof on the part of the employee.” (Dec. 12.)

In his general findings, the judge concluded that “. . . the employee’s credibility is questionable and that her testimony, coupled with the other evidence fails to meet the required standard of proof.” (Dec. 14.) He therefore denied her claim for benefits for a wrist injury. (Dec. 15.)

ISSUES

On appeal, the employee asserts that the administrative judge exceeded the scope of his authority and erred as a matter of law in negating the prima facie effect of Dr. Harris’ § 11A report on the issue of causation. Without more explicit findings, we are unable to provide proper appellate review of this question. See G.L.c. 152, § 11C (“The reviewing board may, when appropriate, recommit a case before it to an administrative judge for further findings of fact.”).

LEGAL DISCUSSION

Section 11A of G.L.c. 152 provides that in a dispute over medical issues, an employee is required to undergo a medical examination by an “impartial medical examiner” who is to render an opinion on “medical facts and related opinions concerning the nature of the employee’s injury and its causation, the extent of disability, and whether any permanent impairment or losses of function exist.” Scheffler’s Case, 419 Mass. 251, 257 (1994). The judge is statutorily required to accord prima facie effect to the medical issues contained therein. Id. at 258; G.L.c. 152, § 11A(2). Prima facie evidence, “in the absence of contradictory evidence, requires a finding that the evidence is true”. The prima facie evidence, however, “may be met and overcome by evidence sufficient to warrant a contrary conclusion”; the prima facie evidence is sufficient to sustain the proposition to which it is applicable even in presence of contradictory evidence. Scheffler’s Case, supra at 258-259, quoting Cook v. Farm Serv.Stores, Inc., 301 Mass. 564, 566-567, 569 (1938). In this respect, the § 11A(2) impartial medical opinion differs from all other medical opinions.

The § 11A conundrum is that the statute limits the medical evidence which may be considered, where the impartial medical examiner’s report is adequate and the medical issues are not complex. Where the question is one which requires an expert medical opinion, and no other expert medical opinion evidence appears of record, the prima facie weight cannot be easily met and overcome.

While prima facie evidence may be overcome by evidence warranting a contrary finding, a judge may not substitute his own medical judgment for that of the § 11A impartial medical examiner. See Degregorio v. CecoConstr. 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). It appears that the judge may have done so here, after making other foundational errors.

The judge made several subsidiary factual findings for which we are unable to ascertain support in the record evidence. First, he found that the “employee was not involved in any type of work that would require constant repetitive use of the upper extremities during the period between January 24, 1989 and October 1, 1990 which would appear to be a sufficient period of time to allow any carpal tunnel syndrome symptoms to manifest themselves if, in fact, that particular syndrome was work related.” (Dec. 10.)

This finding of no repetitive work activity appears to be contradicted by record evidence.[4] On remand the judge should review the pertinent evidence and explicitly credit or discredit it.

Second, we are unable to ascertain the basis for the finding that “[b]etween January of 1991 and the time the Lump Sum Agreements were executed [October 30, 1991], there was no evidence of any treatment sought by the employee for left wrist pain.” (Dec. 9, emphasis added.) On remand, the judge should consider the evidence contained in the impartial medical report and the employee’s testimony. Dr. Harris reported that the employee received medical treatment for the wrist from Dr. Paulino, a chiropractor, in January 1991. (Dep. 20, 22.) This report was consistent with the employee’s testimony that she treated with Dr. Paulino for her wrist until February 1991 when the doctor informed her that there was nothing else he could do for her arm. (Tr. 79.) After review, the judge should explicitly credit or discount that evidence.

These two factual determinations were critical to the judge’s assessment that the employee lacked credibility (Dec. 10) and to his rejection of the impartial medical examiner’s opinion (Dec. 12).

The judge rejected the § 11A impartial medical examiner’s opinion because he found the doctor did not have an accurate history of the employee’s pain in her wrist prior to the date of injury. (Dec. 12.) However, the discrepancy relied upon by the judge does not appear to affect the impartial medical examiner’s opinion. Dr. Harris had a history that the employee did repetitive hand work for approximately twelve years either as a stitcher or a marker. (Harris Rep. 1-2; Dep. 6, 8, 50-51.) Based on this history, he opined that the employee’s hyperextension of her wrist for prolonged periods of time caused her employment related left wrist carpal tunnel syndrome. (Dep. 5-7, 35-36, 45, 52-53.) He stated both on direct and cross-examination that his causation opinion would not change whether the employee’s wrist condition was an exacerbation or aggravation of a preexisting condition or whether it was a direct result of the October 1, 1990 work activity. (Dep. 6-8, 45, 53.) Dr. Harris further opined that there were significant objective findings as well as subjective findings that carpal tunnel release surgery was indicated. (Report, at 3.)

The determination of whether a preexisting condition is worsened by work activity is a complex medical question requiring an expert opinion. Medeiros v. San Toro Mfg., 7 Mass. Workers’ Comp. Rep. 66, 68 (1993). It appears that the judge may have erroneously substituted his own medical opinion for that of the impartial physician by finding that the employee’s failure to report two prior episodes of wrist pain was “sufficient to distort the history to the point where the doctor could not have said with any degree of medical certainty that the carpal tunnel syndrome was a direct result of something that occurred on October 1, 1990.” See Dec. at 11 and 12; compare Dep. at 6-8, 51, 53. The judge may also have arbitrarily attributed significance to the fact that the “employee constantly used both hands while answering questions under direct and cross-examination in order to provide emphasis to her answers. She used her left arm as extensively as she used her right hand and never demonstrated any pain symptoms.” (Dec. 13-14.) There is no medical evidence that with the claimed condition the employee should be unable to perform these motions or exhibit pain as a result. Nor did the employee claim that she was unable to perform such motions; she merely claimed an inability to pick up and carry objects with her left hand. See (Tr. 83.).

The § 11A impartial medical opinion is the sole expert medical evidence in this record regarding liability and has prima facie weight. As such, it is sufficient to sustain the employee’s burden of proving liability, requiring a finding that liability exists. This liability opinion would lose its artificial force only when record evidence exists which warrants a contrary finding, but even in the face of contradictory evidence the judge may rely on its prima facie effect and award compensation. For this reason, it is essential for the judge on remand to make explicit findings about the evidence which overcomes the § 11A opinion.

An administrative judge’s determination of evidentiary weight and credibility, particularly where the witnesses being judged appear before him, is final. See Lettich’s Case, 403 Mass. 389, 394 (1988). Because the judge explicitly grounded his decision in credibility findings, and the assessment of credibility is solely within his purview, we remand rather than reverse. On remand, if he finds liability, the judge should determine the periods and extent of incapacity causally related to the alleged wrist injury. In so doing, he should be mindful that an employee may be injured and therefore entitled to medical services pursuant to G.L.c. 152, § 30
without any wage loss. Colon v. Andover Courtyard/Marriott, 9 Mass. Workers’ Comp. Rep. 9, 11 (1995). We further instruct that the payment of the lump sum settlement for the back injury is not determinative of the issue of incapacity commencing December 10, 1990. The lump sum back settlement does not preclude an order of compensation based on the wrist injury for periods of causally related incapacity. G.L.c. 152, § 48(5)[5] ; Kszepka’sCase, 408 Mass. 843, 563 N.E.2d 1357 (1990).

CONCLUSION

In summary, because we find the decision flawed, we vacate it and remand the case for a new decision consistent with this opinion. In light of the passage of time during the pendency of this 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.

________________________ Suzanne E. K. Smith Administrative Law Judge
________________________ Edward Kirby Administrative Law Judge
_________________________ Susan Maze-Rothstein Administrative Law Judge

Filed: April 30, 1996

SKS

[1] 452 Code Mass. Regs., § 1.10(2) provides, in pertinent part: “. . . At a conference involving a medical issue, the parties shall also identify to the administrative judge as a part of the required memorandum: (a) the medical issue(s) in dispute . . .; (b) a list of the documents to be included in the medical records to be sent to an impartial physician; any hypotheticals to be submitted to the impartial physician upon the judge’s approval; the names of up to three impartial physicians in order of preference if agreed upon; and the names of any additional physicians anticipated to be requested at hearing to be deposed; (c) any objections to the documents included in the medical records and hypotheticals to be submitted to the impartial physician. No other medical records will be allowed into evidence at hearing unless admitted by the administrative judge as newly discovered evidence; (d) a request of not more than three disclosure questions if approved by the administrative judge to be submitted to the impartial physician.”
[2] The parties agreed to the appointment of an orthopedic physician as a § 11A impartial medical examiner in the event of an appeal from the conference order and marked for identification relevant medical records, medical reports, medical histories and other relevant medical information to be submitted to the impartial physician.
[3] For evidentary support in the record for this finding, see Harris May 19, 1993 Rep. 3; Harris Dep. 5-7, 12, 18, 35-36, 45, 52-53.
[4] The evidence in question was as follows: Between her return to work after her back injury on January 25, 1989 and October 1, 1990, the employee worked as a “marker” which required the application of pressure with a plastic instrument held in her left hand to trace a pattern onto coats so that stitchers would know where to sew on the collar. (Tr. 72-73.) She did this repetitively for eight hours a day until shortly after October 1, 1990, when she was given a left wrist splint and then a cast. (Tr. 72-75.) She returned to work the next day. Because of the cast on her arm, employer transferred her to a light duty job with plastic bags where she remained until leaving work in December 1990. (Dec. 7; Tr. 75-76.) For twelve years prior to the December 10, 1990 back injury, the employee did repetitive work in her position as a stitcher, working on approximately 1,000 to 1,100 coats per day. (Tr. 69-70.) In the opinion of Dr. Harris, this work activity was sufficient to cause or aggravate her carpal tunnel syndrome. (Dep. 6-7.)
[5] See St. 1991, c. 398, § 75 which redesignated as § 48(5) the former § 48(6) (appearing in St. 1985, c. 572, § 52). It provides: “Whenever a lump sum agreement or payment has been approved by the reviewing board in accordance with the terms of this section, such agreement shall affect only the insurer and employee who are parties to such lump sum agreement and shall not affect any other action or proceeding arising out of a separate and distinct injury resulting in an incapacity whether the injury precedes or arises subsequent to the date of settlement.”