BOARD NO.: 06366788Commonwealth of Massachusetts Department of Industrial Accidents
Filed: September 10, 1998
REVIEWING BOARD DECISION
(Judges McCarthy, Wilson and Smith)
APPEARANCES
Thomas C. McDonough, Esq., for the employee
Paul M. Moretti, Esq., for the self-insurer on appeal
Richard N. Curtin, Esq., for the self-insurer at hearing
MCCARTHY, J.
The self-insurer appeals a decision of an administrative judge, who concluded that the employee was permanently and totally incapacitated and awarded workers’ compensation benefits accordingly. The self-insurer argues that the judge erred by failing to accord resjudicata effect to the previously litigated denial of causal relationship between the employee’s lower back impairment and the accepted industrial injury. It next contends that the judge erred by characterizing the impartial physician’s opinion on the employee’s physical impairment as speculative. The self-insurer also maintains that the employee failed to prove total incapacity because there was no evidence of attempts to find employment. We reverse and recommit the case for further proceedings.
Agnes Anderson was a senior medical technologist for the self-insured, Norwood Hospital, where she had worked for more than thirty years. On September 23, 1988, Ms. Anderson fell at work in the emergency room. (Dec. 4.) She injured her right knee, and the self-insurer accepted liability for that injury. (Dec. 2, 4.) Ms. Anderson returned to work in March, 1989, at first for two days a week and then later increased to three days.
This part time duty caused too much pain and she again went out of work and never returned. (Dec. 4.)
Five arthroscopic surgeries have been unsuccessful in alleviating Ms. Anderson’s knee pain. The knee pain is present even when sitting, and she must elevate her right foot as much as possible. (Dec. 5.) She needs a cane to walk and this has caused tendinitis in her left shoulder. (Dec. 5-6.)
The present appeal involves the employee’s claim for permanent and total incapacity benefits. (Dec. 2.) A § 11A(2) medical exam took place on July 26, 1996. The impartial examiner identified five medical problems which he causally related to the 1988 fall at work: (1) traumatic tendinitis of the left shoulder; (2) aggravation of degenerative changes of the lumbar spine with chronic low back pain; (3) traumatic fracture of the right patella; (4) traumatic aggravation of the degenerative changes of the right knee; (5) chronic right knee pain, weakness, and loss of motion as a result of (3) and (4), and multiple operations. (Dec. 6.) The doctor opined that the employee was permanently and totally disabled as a result of the chronic medical problems involving her knee, shoulder and back. (Dec. 6; Ex.2.) The judge adopted the impartial physician’s opinion. (Dec. 7.)
In an earlier hearing decision, a different judge, in the context of a complaint to terminate or modify, found that the employee’s lumbar spine condition was not causally related to her fall at work. That judge denied the self-insurer’s complaint to terminate or modify weekly benefits and also denied the employee’s claim for benefits for her lower back impairment “without prejudice.” On appeal, the reviewing board struck the “without prejudice” qualification, concluding that “[a] dismissal on a liability claim for lack of causation is final and is with prejudice.” Anderson v.Norwood Hospital, 9 Mass. Workers’ Comp. Rep. 400, 401 (1995).
In the case now being reviewed, the judge erred by not segregating the effects of the employee’s back condition from the medical disability stemming from the causally related knee and shoulder injuries. To the extent that the impartial physician lumped together all of the employee’s impairments, — both causally related and not — the judge could not rely on that opinion in his incapacity analysis. We suggested an approach in a situation such as this in Patient v. Harrington Richardson, 9 Mass. Workers’ Comp. Rep. 679 (1995):
The determination in the instant case is whether the present incapacity for work is caused not by a combination of the effects of the work injury and unrelated injury or disease, but solely by the work-related . . . condition. See Hummer’s Case, 317 Mass. 617, 620, 623 (1945). Any disabling effects of disease that are not causally related to the work incident are irrelevant to a determination of whether the work-related condition[s] in isolation [have] rendered the employee permanently and totally incapacitated. Id. at 623. Hence, the judge’s task is to . . . narrowly focus on and determine the extent of physical injury or harm to the body that is causally related solely to the work injury.
Patient, supra at 683. The 1995 reviewing board decision inAnderson, supra, affirmed that the employee’s 1988 fall at work was not the cause of her lumbar spine impairment. Id. at 401-402. Absent a change in the medical circumstances (which is not expressly claimed), the judge’s finding that the employee sustained injury to her right knee and back (Dec. 4) cannot stand.[1] Peterson v. Hopson, 306 Mass. 597, 599-600 (1940) (“Where there has been no change of circumstances, a court or judge is not bound to reconsider a case, an issue, or a question of fact or law, once decided”).
The impartial physician did not segregate the employee’s work-related shoulder and knee conditions from the back impairment in his medical report, which erroneously lists the back as a direct result of the employee’s work incident. The § 11A medical report evidence was flawed as a result, and could not be adopted as an accurate statement of the medical case. See Ruiz v. Unique Applications, 11 Mass. Workers’ Comp. Rep. 399, 402-403 (1997) (§ 11A “medical dispute” must be clearly delineated to the impartial physician in order to ensure that the medical issues are fairly presented and accurately adjudicated). Counsel for the self-insurer exposed this issue in his examination of the doctor at deposition.
Q: Doctor, excluding for the moment the low back condition which we’ve discussed, and excluding for the moment her cervical spine condition, which we’ve discussed,[2] taking into account only the right knee condition, which we’ve discussed, and her shoulder tendinitis, which, I take it, you feel is a consequence of her favoring her leg, but taking into account the right knee and the left shoulder, would Mrs. Anderson be a candidate for at least some, say, part time desk work that would allow her to sit and stand at will?
. . .
A: Assuming only her right knee and her left shoulder problem, she probably could perform a sedentary job on a part time basis.
(Dep. 39-40.) The judge rejected this opinion as “speculative,” citing Scheffler’s Case, 419 Mass. 251 (1994). (Dec. 7.) We do not agree with his characterization of the doctor’s opinion or his view of Scheffler’s Case.
In Scheffler’s Case, the court said it was proper for the impartial examiner to offer an opinion on the employee’s physical limitations, in relation to work duties:
With specific reference to the degree of disability, which is the issue in this case, the impartial medical examiner ordinarily would be expected to describe the employee’s ability to perform certain tasks and to state restrictions on his ability to work.[3] The impartial medical examiner might also relate the medical findings to the requirements of the employee’s job and express an opinion that, based on the medical findings, the employee can return to work in some capacity. If that opinion is based on facts which the administrative judge (and ultimately the board) finds are complete and accurate with respect to the requirements of the employee’s job, or other work available to the employee, the administrative judge would be required to accord prima facie status to that opinion as well. After giving proper weight to the prima facie and other evidence, the administrative judge would then find the facts and apply appropriate legal standards to determine whether the employee has suffered a loss of earning capacity.
Scheffler’s Case, supra at 257 (footnote in original).
The prior hearing decision in this case established that the employee’s back is not the self-insurer’s responsibility. In the decision on appeal, the judge had no reason or basis to find a change in medical circumstances because no such claim was made. Therefore, the hypothetical question put to the impartial physician, quoted above, was an accurate statement of the medical facts that were the foundation for the doctor’s opinion on the employee’s work restrictions. The doctor’s opinion that the employee had a part time sedentary work capacity was not speculative. The judge on recommittal must address this prima facie evidence of the employee’s physical ability to do some measure of work with clear and specific findings. And, of course, the judge will also need to consider the employee’s age, education, training and experience in reaching his conclusion as to the employee’s earning capacity, or lack thereof. Frennier’sCase, 318 Mass. 635, 639 (1945).
The self-insurer finally argues that the employee cannot sustain her burden of proving permanent and total incapacity because she failed to introduce evidence of attempts to find gainful employment. See LaFlam’s Case, 355 Mass. 409, 411 (1969);Ballard’s Case, 13 Mass. App. Ct. 1068, 1069 (1982). (Self-Insurer’s brief 22.) In Ballard’s Case, a recommittal for inadequate subsidiary findings, in a rescript opinion the court wrote:
Also, pertinent here would be findings as to the extent of the employee’s affirmative efforts, if any, to obtain such types of employment. [citations omitted]. Without a showing of attempts (unless they would be futile) to secure employment, a claimant cannot support a claim of total disability on the basis that employment is unobtainable.
Id. at 1069.
Depending on the judge’s findings on recommittal, Ballard’s Case
may become relevant. However, as the court recognized inMulcahey’s Case, 26 Mass. App. Ct. 1 (1988):
Neither the insurer, trying to prove that the employee is able to return to his usual line of work, nor the employee, trying to prove his total incapacity, is likely to proffer evidence that, if persuasive, would tend to compromise its or his position. Thus, once the board has determined that the employee has shown only partial incapacity, “[i]n the absence of testimony as to the earning capacity of the employee, the members of the board are entitled to use their own judgement and knowledge in determining that question.” O’Reilly’s Case, 265 Mass. 456, 458, (1929). Percival’s Case, 268 Mass. 50, 54 (1929). See also Royal’s Case, 286 Mass. 374, 377 (1934); Nowack’s Case, 2 Mass. App. Ct. 498, 500 (1974).
Id. at 3.
Because the burden of proving permanent and total incapacity is on the employee, on remand the judge must determine whether the employee has persuaded him that she is prevented by the effects of the work injury from performing substantial, non-rifling remunerative work on the open labor market. Frennier’s Case, 318 Mass. 635, 639 (1945).
We reverse the decision and recommit the case for further proceedings. The conference order of May 21, 1996 shall remain in effect until the judge issues a new decision.
So ordered.
_________________________ William A. McCarthy Administrative Law Judge
_________________________ Sara Holmes Wilson Administrative Law Judge
_________________________ Suzanne E.K. Smith Administrative Law Judge