BOARD No. 5181792Commonwealth of Massachusetts Department of Industrial Accidents
Filed: April 23, 1997
REVIEWING BOARD DECISION
(Judges McCarthy, Maze-Rothstein and Smith)
APPEARANCES
Ronald St. Pierre, Esq., for the employee at hearing.
Alan S. Pierce, Esq., for the employee on brief.
Frances D. O’Toole, Esq., for the insurer.
SMITH, J.
The insurer appeals from a decision on the employee’s original liability claim which awarded § 34 total compensation on a continuing basis, together with § 30 health care services. We affirm the award except for the order of payment for the knee surgeries.
Eleni Antoniou, now forty five years old, began her employment at Marshall’s in November, 1989. Her job duties included cashiering, handling sportswear and doing markdowns and processing. She was on her feet seven and a half hours each work day. (Dec. 5, Employee ex. 1.)
On September 18, 1992 Antoniou struck her shoulder, elbow and right knee when she fell after slipping on water. The store manager recorded these events in an accident report. That same day, she received treatment for a swollen right knee; icing, anti-inflammatory medication and rest were prescribed. (Dec. 6.) She came under the care of an orthopedic surgeon who prescribed physical therapy, use of a TENS unit and pool therapy. Her right knee pain persisted and arthroscopic surgery was performed in August 1993. When her knee pain failed to improve, she underwent a second surgery in March 1994. (Dec. 7.)
In addition to her orthopedic symptoms, Antoniou developed psychiatric symptoms of frequent crying, weight loss and inability to sleep for which she initially sought treatment in 1993. She had no knee or psychiatric problems prior to September 18, 1992. (Dec. 7-8.)
The employer paid § 34 total temporary incapacity benefits on a without prejudice basis from September 18, 1992 to February 23, 1993. Thereafter the employee filed a claim for further benefits which the insurer resisted. A conference order was issued denying the claim and the employee appealed giving way to a full evidentiary hearing. (Dec. 2.)
In his decision, the administrative judge found the employee totally incapacitated from September 18, 1992 to date and continuing, her right knee condition causally related to the work injury of September 18, 1992, the two knee surgeries reasonable and necessary and her major depression causally related to her right knee injury of September 18, 1992.[1] (Dec. 12.) We have the case on appeal by the insurer.
The insurer argues that the award of medical benefits for the two surgeries was unsupported by any competent medical evidence in the record. We agree that the award of benefits for the surgeries was erroneous. We summarily affirm the administrative judge’s decision on all of the other issues raised on appeal.
The judge twice noted in his subsidiary findings that the impartial medical examiner, Dr. Peter Anas, an orthopedic surgeon, was unable to give a definitive affirmation of the reasonableness and necessity of the two knee surgeries. (Dec. 9, 10.) However, in his general findings, the judge stated the following:
3. In light of the inability of Dr. Anas to give a definitive affirmation of the reasonableness and necessity of the Employee’s two knee surgeries and giving the benefit of the doubt to the operating surgeon(s), I find the two right knee surgeries were reasonable and necessary as provided under Section 30 of the Act as well as all of her orthopedic treatment with no evidence to the contrary. (emphasis added) (Dec. 12.)
In construing the absence of persuasive evidence against the insurer, the judge misapplied the burden of proof. It is established law that the employee has the burden of proving every element of her claim: “employment within the coverage of the act, injury arising out of and in the course of employment, causal relation between the injury and disability, and a timely claim. Locke, Workmen’s Compensation § 502 (2d ed. 1981).” Philips’sCase, 41 Mass. App. Ct. 612, 618 (1996). When the judge gave the treating surgeon the benefit of the doubt, he improperly relieved the employee of her burden of proof.
The only expert medical witness on orthopedic issues, Dr. Anas, opined that the first surgery was primarily undertaken as an exploration for the patient’s symptoms of unremitting pain. (Anas Dep. 11.) When asked if the arthroscopic procedure was reasonable and necessary, he responded: “That’s a very judgmental issue. . . . It’s certainly within reason, but the indications were not strong, I would say.” (Anas Dep. 11-12.) This evidence when coupled with the employee’s testimony about her pain could rationally support an award of benefits for the first surgery as a “last resort effort.” (Anas Dep. 12.) See Bedugnis v. Paul McGuire Chevrolet,
9 Mass. Workers’ Comp. Rep. 801, 803 (1995). However, a finding that the second surgery was reasonable and adequate is completely unsupported by the record.
When asked his opinion of the reasonableness of the second
surgery, a Maquet procedure, Dr. Anas replied:
. . . this patient had a major psychological disorder, which was leading to her ongoing painful condition, and I felt that needed attention. Unless something transpired in the time subsequent to when I saw her[2] , that she attained that evaluation, attained the treatment, and despite correction or modification of her psychological distress, if thereafter she still had severe knee pain, [the second surgery] may have been a reasonable alternative. But, given the whole venue view of this patient, it would be very difficult to anticipate a set of circumstances where all that could have occurred and allowed [the second surgery] to be a reasonable treatment.
(Anas Dep. 18.)
The record thus lacks an evidentiary basis on which to conclude that the second surgery was reasonable and adequate. We therefore reverse that portion of the decision and enter a denial of payment for the second surgery.
We recommit the issue of the first surgery to the administrative judge for a new § 30 decision applying the proper burden of proof. In light of the passage of time during the pendency of the appeal, and the intermingling of the psychiatric and orthopedic conditions, the judge may take whatever additional evidence he deems necessary to render a just decision.
In all other aspects the decision is affirmed.
So ordered.
_________________________ Suzanne E.K. Smith Administrative Law Judge
_________________________ William A. McCarthy Administrative Law Judge
_________________________ Susan Maze-Rothstein Administrative Law Judge
Filed: April 23, 1997