BOARD No. 10512986Commonwealth of Massachusetts Department of Industrial Accidents
Filed: December 31, 1996
REVIEWING BOARD DECISION
(Judges Fischel, Wilson and Kirby)
APPEARANCES
William F. Scannell, Jr., Esq., for the employee.
Lucia C. Scannell, Esq., for the employee on brief.
Donald F. Wallace, Esq. and Elizabeth A. Richmond-Puopolo, Esq., for the self-insurer.
WILSON, J.
In this appeal, the self-insurer asserts that the administrative judge erroneously concluded the employee’s present incapacity was causally related to his accepted 1986 industrial injury, because the only medical opinion in evidence, that of the § 11A physician, did not support such a finding. Since the judge has not sufficiently explained his conclusion that causal relationship exists, we find it appropriate to recommit the case for more specific subsidiary findings of fact on that issue. G.L.c. 152, § 11C. In addition, both parties appeal the judge’s order of recoupment by means of a $5.00 per week reduction in the employee’s ongoing partial incapacity payments. The judge erred in ordering recoupment, as the issue was not before the judge. We therefore vacate the judge’s order of recoupment.
The employee suffered an industrial injury in 1986, when he experienced groin pain after heavy lifting in his job as a maintenance supervisor in the Clinton School Department. After accepting the claim, the self-insurer filed a complaint to modify or discontinue weekly benefits. An administrative judge assigned the employee a $200.00 per week earning capacity. Both parties appealed this decision, but later withdrew their appeals. The self-insurer subsequently filed a complaint to modify or discontinue weekly benefits, which was denied at conference. The self-insurer appealed to a hearing de novo. (Dec. 1, 4.)
The employee was examined pursuant to the provisions of G.L.c. 152, § 11A by Dr. Gigi Girgis, a neurologist. Neither party challenged the adequacy of Dr. Girgis’s report, or raised the issue of the complexity of the medical issues. Hence, Dr. Girgis’s opinion was the exclusive expert medical evidence before the judge. (Dec. 3, 6.) Dr. Girgis opined that the employee had chronic pain over the right inguinal area, with a possibility of neuropathy. Dr. Girgis further opined that there was “no longer clear causal relationship” between the employee’s incapacity and his employment. The doctor found the employee disabled from work requiring lifting. (Dec. 7; Ex. A.)
The judge found that the employee was capable of earning $250.00 per week. (Dec. 10.) The judge stated that he adopted the opinion of Dr. Girgis “that causal relationship exists to the workplace injury and that the employee’s burden had been met on this issue.” (Dec. 9.) He accordingly awarded continuing partial incapacity benefits, based on an assigned $250.00 earning-capacity. (Dec. 10.)
The self-insurer argues that the judge erred in his conclusion, based on the opinion of the § 11A physician, that the employee’s present incapacity was causally related to the 1986 industrial injury. Indeed, Dr. Girgis opined of the employee’s incapacity, “There is no clear causal relationship to his work.” (Ex. A.)
The employee has the burden of proving that his present and continuing incapacity is causally related to the industrial injury that the insurer accepted in 1986. See Sponatski’s Case,220 Mass. 526 (1915); Himmelman v. A.R. Green Sons,
9 Mass. Workers’ Comp. Rep. 99, 101 (1995) (earlier determination of causal relation does not preclude insurer from raising it as issue in later proceeding) ;Demers v. Westabix Co., 7 Mass. Workers’ Comp. Rep. 74, 75 (1993) (burden of proving causal relation between work incident and present medical condition lies with employee). Nonetheless, “the courts have long recognized a judge’s authority as fact finder to find causal relationship where the expert testimony and lay evidence taken as a whole warrant that result.” Bedugnis v. PaulMcGuire Chevrolet, 9 Mass. Workers’ Comp. Rep. 801, 803 (1995). See Josi’s Case, 324 Mass. 415, 417-418 (1949); DeFilippo’s Case,284 Mass. 531, 535 (1933); Fennell’s Case, 277 Mass. 492, 496
(1931). In light of the medical opinion, which is at best ambiguous, we are at a loss as to how the judge concluded that causal relationship existed in this case. “When we can only speculate about the judge’s reasoning and basis for his general conclusions, the appellate review to which the claimant is entitled in not possible.” Crowley v. Salem Hospital,
8 Mass. Workers’ Comp. Rep. 374, 375 (1994). Because the judge must make more explicit subsidiary findings of fact supporting his conclusions, recommittal of this case is appropriate. G.L.c. 152, § 11C. See Roldan v. H W Motor Lines,
8 Mass. Workers’ Comp. Rep. 410, 412 (1994). On recommittal, the administrative judge may, on his own initiative or upon a motion by a party, authorize the submission of additional medical testimony if he determines the medical issues are complex or the report inadequate. § 11A(2). In finding § 11A(2) not unconstitutional on its face, the Supreme Judicial Court focused on both this provision of § 11A(2) and the reviewing board’s authority under § 11C to recommit a case when appropriate for further findings as elements of a statutory scheme that, if administered fairly and reasonably, provide adequate due process. See O’Brien’s Case, 424 Mass. 16
(1996).
Both parties appeal the judge’s order that the insurer shall recoup overpayments by means of a $5.00 reduction of the employee’s weekly incapacity payments. The employee is correct in his assertion that the issue of recoupment was not before the judge and, as it was error to award it, we vacate the order.
We recommit the case for further findings of fact on causal relationship consistent with this opinion.
So ordered.
_________________________ Sara Holmes Wilson Administrative Law Judge
_________________________ Carolynn N. Fischel Administrative Law Judge
Filed: December 31, 1996
KIRBY, J. dissenting,
Because the opinion of the impartial examiner does not support the employee’s claim, I would reverse the judge’s finding of causal relationship, and his order of further § 35 partial incapacity compensation. The medical evidence here supports no other result.
“Causal relation is a matter beyond the common experience of the ordinary layman, and therefore expert medical testimony is required.” Ata v. KGR, Inc., 10 Mass. Workers’ Comp. Rep 56, 57 (1996), citing Casey’s Case, 348 Mass. 572, 574-575 (1965). Dr. Girgis, the § 11A impartial examiner opined that “at best [the employee’s] diagnosis is chronic pain over the right inguinal area possibly related to neuropathy although not likely. There is noclear causal relationship to his work.” (Dec. 7., Exhibit A. p. 3.) (emphasis added). This is the extent of the medical evidence addressing the issue of causal relationship in this case. The judge’s general finding regarding causal relationship was: “I adopt the opinion of Dr. Girgis that causal relationship exists to the workplace injury and that the employee’s burden has been met on this issue.” (Dec. 9.)
The impartial examiner’s words “[t]there is no clear causal relationship to his work” do not imply that there is a causal relationship that exists but is unclear. The statement is negative, rather than insufficiently positive. It excludes a causal relationship. It could not, under the cases cited-by the majority, support a finding of causal relationship when taken in the context of all the other evidence in the record, as inBedugnis v. Paul McGuire Chevrolet,
9 Mass. Workers’ Comp. Rep. 801, 803 (1995). There the medical opinion was that there was a possible causal relationship, which in the context of supportive circumstances was considered sufficient to support a finding of causation.
The general finding is unsupported by the evidence upon which it purports to be based.
I concur in the vacating of the judge’s order of recoupment.
_________________________ Edward P. Kirby Administrative Law Judge