CASEY v. TOWN OF BROOKLINE, No. 01159999 (Jun. 20, 2003)

No. 01159999Commonwealth of Massachusetts Department of Industrial Accidents
June 20, 2003

REVIEWING BOARD DECISION

(Judges Costigan, Carroll and Maze-Rothstein)

APPEARANCES

Joseph M. Burke, Esq., for the employee

Jennifer Dopazo, Esq., for the self-insurer

COSTIGAN, J.

The self-insurer appeals from a decision awarding the employee total incapacity benefits under G.L.c. 152, § 34, to exhaustion, and then under § 34A, on the basis that entitlement to § 34A permanent and total incapacity benefits was not claimed by the employee nor litigated by the parties. The administrative judge did not file his decision until seventeen months after the December 2000 close of the record, which hiatus resulted in the exhaustion, prior to such filing, of the § 34 benefits he ultimately awarded.[1] The judge’s solution to that dilemma was to sua sponte award the employee § 34A permanent and total incapacity benefits from and after March 30, 2002.[2] The self-insurer also challenges the judge’s finding of causal relationship between the alleged industrial accident and the employee’s low back disability, and the award of a § 7 penalty. While we affirm the causal relationship finding, we reverse the awards of § 34A benefits and the § 7 penalty.

The employee, age fifty-five when the hearing was held, had worked for the Town of Brookline for almost thirty-three years. At the time of his alleged injury, his title was Senior Sanitary Inspector. On March 9, 1999, he fell from a chair at work. A co-employee witnessed the incident and a nurse employed by the town, who arrived at the scene moments after the incident, checked the employee for possible head injury. She determined that the employee was stable, and he declined further medical care. (Dec. 3-4.)

The employee continued to work, but experienced back pain which “got worse” over the twenty-day period from March 9 to March 29, 1999. The employee reported for work on March 29 but left early because, as he reported to his supervisor, his back pain had become intolerable. After returning home, the employee reached to the floor to pick up a newspaper and experienced severe back pain. He fell to the floor, unable to get up. (Dec. 4.) The employee underwent MRI testing on April 16, 1999 which revealed a left-sided disc herniation at L5-S1. (Id.)

The employee filed a claim for workers’ compensation benefits under §§ 34 and 30 and for a penalty under § 7, which the self-insurer resisted.[3] Following a § 10A conference before a different administrative judge, the self-insurer was ordered to pay temporary total incapacity benefits under § 34 from and after March 29, 1999, and reasonable and necessary medical expenses under § 30.[4] The self-insurer appealed to a full evidentiary hearing, which took place on October 23, 2000. (Dec. 2)

The employee underwent a § 11A impartial medical examination on January 12, 2000. In his report, Dr. Stephen H. Johnson opined that the employee’s medical disability was not causally related to the fall at work:

The issue of causality is a difficult one. Certainly, a twisting, bending motion as occurred when he fell on his buttocks could be associated with disc herniation. The temporal facts of the case implicate the 03/18/99 [sic] event when he was bending over to pick up a newspaper which can also be associated with subsequent disc rupture.
In my opinion, the fall from a chair is unlikely to be causative of his subsequent disc rupture. In reality, I don’t think there is any way that one can be sure of that. However, it is clear that he does have a herniated disc, that he will incur some disability associated with that and that even though he is improving with conservative treatment, he might require surgery in the future.

(Statutory Ex. 1, 3; emphasis added.)

That opinion, however, was based on a history that did not include the employee’s ongoing pain from the time of the incident until he left work on March 29, 1999, as testified to by the employee. Rather, it assumed that he had developed pain only after, and as a result of, picking up the newspaper at home.[5] (Dec. 4; Statutory Ex. 1, 1.) At the § 11A deposition on December 1, 2000, the doctor was asked to assume that the employee had ongoing complaints of low back and radiating leg pain from March 9, 1999 until March 29, 1999, which history corrolated with the employee’s testimony at the hearing. (Dec. 5; Tr. 109-112.) Presented with that history[6] , the impartial physician opined that the fall at work caused the employee’s disc herniation and pain symptomatology. (Dec. 5; Dep. 13-18.) The doctor totally disabled the employee from working as of the time of his examination. (Statutory Ex. 1, 3.)

The self-insurer challenges the judge’s finding of causal relationship based on the deposition testimony of the impartial physician. It asserts that the doctor’s opinion on causal relationship was conflicting and inadequate, and therefore could not sustain the employee’s burden of proof. We do not agree. It is apparent that the change in the doctor’s causal relationship opinion, from his § 11A report to his deposition testimony, was predicated on a different, and more accurate, history provided by the employee’s attorney during his deposition examination — a history which the judge ultimately credited and found as fact. Contrast Brooks v. Labor Mgt. Serv., 11 Mass. Workers’ Comp. Rep. 575 (1997) (where impartial physician changed his opinion on causal relationship without any reason, neither opinion could constitute prima facie evidence under § 11A, resulting in statutorily inadequate medical evidence; additional medical evidence mandated). To the extent that the doctor later answered questions put to him by counsel for the self-insurer in a manner consistent with his written report, those questions did not conform to the employee’s history as recounted in his credited testimony at hearing. (Dep. 26-27.) When a doctor is confronted with information that causes him to revise his opinion, “[a]s a general rule, `the opinion of an expert which must be taken as his evidence is his final conclusion at the moment of testifying.’ ” Id. at 578, quotingPerangelo’s Case, 277 Mass. 59, 64 (1931). Here, however, “[t]he inquiry should be whether the final opinion was based on a sound evidentiary foundation or was speculative or was unsupported by the facts.” Hayes v.Commonwealth of Massachusetts, 7 Mass. Workers’ Comp. Rep. 232, 235 (1993), citing Boston Gas Co. v. Assessors of Boston, 334 Mass. 549, 578-579 (1956); McEwen’s Case, 2 Mass. App. Ct. 63, 66-67 (1974) (emphasis added). Because the questions posed to the § 11A doctor by the self-insurer on cross-examination assumed facts not found by the administrative judge[7] , its contention of conflicts in the doctor’s opinion is without merit.

The judge concluded that the employee’s testimony as to his continuing and increasing low back and leg pain between March 9 and March 29, 1999 was credible. (Dec. 5.) As the § 11A doctor’s ultimate opinion that the employee’s disk herniation and total disability was based on a history the judge found to be accurate and factual, the judge properly adopted that expert medical opinion. (Dep. 18; Dec. 5.) “[T]he history upon which the medical expert relies is crucial to his opinion.”Saccone v. Department of Pub. Health, 13 Mass. Workers’ Comp. Rep. 280, 282 (1999), citing Patient v. Harrington Richardson, 9 Mass. Workers’ Comp. Rep. 679, 682 (1995), quoting Scali v. Mara Prods., Inc., 6 Mass. Workers’ Comp. Rep. 78, 80 (1992). “The weight assigned an expert’s opinion is dependent upon the accuracy of the facts assumed by the expert.” Patient, supra. Accordingly, we see no error in the judge’s liability finding.[8] (Dec. 7.)

We agree with the self-insurer, however, that because the employee made no claim for § 34A benefits, the judge’s award of such benefits from and after March 30, 2002 was unauthorized and contrary to law. (Dec. 2.)Medley v. E. F. Hausermann Co., 14 Mass. Workers’ Comp. Rep. 327, 330 (2000), quoting Gebeyan v. Cabot’s Ice Cream, 8 Mass. Workers’ Comp. Rep. 101, 102-103 (1994) (“[w]here there is no claim, and therefore, no dispute, . . . the judge strayed from the parameters of the case and erred on making findings on issues not properly before her”). We therefore reverse the award of § 34A benefits.[9]

As to the judge’s award of a $200 penalty for a purported late denial of the employee’s claim under § 7, we agree with the self-insurer that such award was incorrect as a matter of law. General Laws c. 152, § 7(1), provides, in pertinent part:

Within fourteen days of an insurer’s[10] receipt of an employer’s first report of injury, or an initial written claim for weekly benefits on a form prescribed by the department, whichever is received first, the insurer shall either commence payment of weekly benefits under this chapter or shall notify the division of administration, the employer, and, by certified mail, the employee, of its refusal to commence payment of weekly benefits.

In the instant case, the first triggering event under § 7(1) was the filing of the employer’s first report of injury, which was dated April 9, 1999.[11] Fourteen days later, on April 23, 1999, the self-insurer filed its notification of denial, dated April 22, 1999.[12] It is beyond dispute that the self-insurer’s response was timely. The judge’s conclusion to the contrary was erroneous, as he counted the fourteen days from the employee’s report of his injury to the employer on April 1, 1999.

Accordingly, we reverse the awards of the § 7 penalty and § 34A benefits. We otherwise affirm the decision. Pursuant to G.L.c. 152, § 13A(6), the self-insurer is directed to pay employee counsel a fee of $1,273.54, plus necessary expenses.

So ordered.

_____________________ Patricia A. Costigan Administrative Law Judge
_____________________ Martine Carroll Administrative Law Judge
_____________________ Susan Maze-Rothstein Administrative Law Judge

Filed: June 20, 2003