BOARD No. 07343891Commonwealth of Massachusetts Department of Industrial Accidents
Filed: March 27, 1996
REVIEWING BOARD DECISION
(Judges Kirby, Maze-Rothstein and Smith)
APPEARANCES
John P. Donovan, Esq., for the employee
W. Frederick Uehlein, Esq., for the insurer
SMITH J.
The insurer appeals from the decision awarding the employee a closed period of temporary total incapacity benefits and continuing partial incapacity benefits for a work-related injury to his lower back. Because the record contains no competent evidence to support an award of continuing benefits after the date of the impartial medical examination, we vacate the order of ongoing partial compensation and remand for a determination of when the effects of the work-related aggravation ended.
FACTS
Cabral worked as a “pulper” for the employer, a paper recycling company, since 1980. While working there Cabral suffered several injuries to his lower back in the six years prior to 1991, but had lost no more than a few months from work due to those industrial accidents. Then, on December 24, 1991, Cabral sustained another lower back injury when he fell at work, which injury is the subject of the instant claim. Cabral made a claim based on that incident, which the insurer denied. At the § 10A conference, the parties indicated that there was a dispute over medical issues, selected an orthopedic specialty for the impartial examiner and marked for identification all relevant medical records, medical reports, medical histories and all other relevant information to be sent to the impartial examiner in case of continuing controversy. See G.L.c. 152, § 11A. After conference, an administrative judge ordered payment of G.L.c. 152, § 34
total incapacity benefits from December 24, 1991 to November 30, 1992 and ongoing § 35 partial incapacity benefits.
When the insurer appealed the conference order, an orthopedic specialist was appointed as the impartial medical examiner pursuant to G.L.c. 152, § 11A. The impartial medical examination occurred on July 29, 1993. The impartial orthopedic physician reported that the employee had sustained an aggravation of his preexisting chronic back sprain at work on December 24, 1991 but had returned to his preinjury baseline by the date of the impartial medical examination. At hearing in April 1993, Cabral had not testified regarding any symptoms of present disability.
Although Cabral exercised his right to depose the § 11A examiner, he did not challenge the adequacy of the § 11A report or request additional medical evidence on the ground of complexity. The impartial medical opinion was the sole medical evidence in the record.
The judge adopted the opinion of the impartial physician as prima facie evidence regarding the medical issues in the case, in accordance with G.L.c. 152, § 11A(2). She found the following subsidiary facts: The § 11A examiner diagnosed a chronic low back sprain with spinal stenosis; neither conditions were causally related to the industrial injury of December 24, 1991. The § 11A examiner opined, “I do believe [the employee] sustained an exacerbation of his chronic back strain at that time, but there are no findings on physical examination at this time to suggest an ongoing acute problem superimposed upon the chronic one.” The § 11A examiner found that Cabral had reached a medical end result and was partially disabled, but that the disability was not related to the 1991 injury, but to wear and tear over the years. (Dep. 19-20; Statutory Exhibit p. 3; Dec. 5-7.) The examiner further opined that the December 24 1991 injury, when coupled with Cabral’s medical condition resulting from the previous falls at work, was an “accumulative event.” Given Cabral’s medical history, the impartial examiner stated the he would attribute four to six months of Cabral’s ensuing incapacity to the December 24 1991 injury. (Dep. 27; Dec. 7.)
Based on these subsidiary findings, the judge concluded that the employee had proved the extent of causally related incapacity which he claimed, namely temporary total from December 24 1991 to November 30, 1992, and ongoing partial from December 1, 1992. The judge’s conclusion that the employee’s ongoing partial incapacity was causally related to the December 24, 1991 injury was specifically based on the § 11A examiner’s testimony that the 1991 injury was “an accumulative event.” (Dec. 8.) The judge also concluded that the employee did not have to show that his 1991 injury was a “major” cause of his claimed incapacity, pursuant to G.L.c. 152, § 1(7A) as amended by St. 1991, c. 398, § 14, because the employee’s preexisting condition was a result of work-related injuries compensable under G.L.c. 152. (Dec. 9.)
ISSUES
The insurer first argues that the judge failed to apply G.L.c. 152, § 1(7A), as amended in 1991. Second, the insurer argues that there was no evidence upon which the judge could base an award of continuing incapacity benefits, as the only medical evidence was the report and deposition testimony of the § 11A(2) impartial physician which indicated that the subject industrial injury had caused only a temporary aggravation of the employee’s medical condition. We agree with the second argument.
LEGAL ANALYSIS
The judge was correct to disregard the insurer’s request to apply the § 1(7A) “major” cause definition of “personal injury”. Section 1(7A) provides in pertinent part:
If a compensable injury or disease combines with a pre-existing condition, which resulted from an injury or disease not compensable under this chapter, to cause or prolong disability or a need for treatment, the resultant condition shall be compensable only to the extent such compensable injury or disease remains a major but not necessarily predominant cause of disability or need for treatment. (Emphasis added.)
Here the employee had suffered several prior industrial injuries to his lower back from 1978 or 1979 until 1988,[1] and had been symptomatic for back pain since 1985. The § 11A impartial medical examiner reported:
The [employee’s] history of back complaints date to 1978 or 1979. According to [the employee] he was lifting a heavy weight at work at that time and noted pain in his back. He stated that the symptoms lasted approximately 1 year and that when the symptoms abated he did not return to that job. He states that he next noted pain in his back in 1985 when he had a fall at work. He states that he slipped on some paper on the floor, injured his back and was out of work for approximately one month.
There was a similar injury in 1987. Again, a fall on the floor and he states he was out of work for a similar period of time approximately 1 month. In 1988, [the employee] relates a third fall at work for which he was out of work for 3 days. . . . According to [the employee] he did not have total resolution of the symptoms in the back area at any point after 1985.
(Statutory Ex. pp. 1-2.) The § 11A examiner opined that the employee’s present partial disability was attributable to “wear and tear over the years.” (Dep. 19-20.) The rational inference that the judge drew from this evidence was that the “wear and tear” resulting in the employee’s incapacity was caused by those specific work-related incidents. The judge found that the employee had several incidents at work which caused preexisting injuries compensable under the Act. (Dec. 9.) She therefore properly concluded as a matter of law that § 1(7A)’s requirement of “a major cause” was inapplicable.
The judge’s conclusion that the employee continued to be partially incapacitated as a result of the December 24 1991 injury, however, is not grounded in the evidence. The § 11A examiner’s description of that incident as “an accumulative event” does not alter the remainder of his opinion that, “. . . the employee had sustained a low back sprain [as a result of the 1991 injury] superimposed upon his spinal stenosis[,]” and that “the low back sprain had resolved at the time of the examination.” (Dep. 16-17, emphasis added.) Therefore, the combination of the effects of the employee’s preexisting back condition and the December 24 1991 injury (the “accumulative event”) had ceased, and the employee was only left with the baseline chronic back condition that predated the 1991 incident: “[W]hatever exacerbation or aggravation had taken place on December 24, 1991 had abated to his pre-December 24, 1991 status [as of the time of the § 11A examination].” (Dec. 7.)
The § 11A(2) impartial medical opinion has prima facie weight which, in the absence of other evidence, is compelling. On this record, there was no basis for an award of continuing compensation due to the latest work injury after the date of the impartial examination. We therefore vacate the award of ongoing partial compensation and remand for a determination of the date when the aggravation ceased. Because the employee has alleged that he has new medical evidence on causation and a worsening of his disability[2]
that may be related to his prior work injuries, on remand he may move to reopen the record on the grounds of newly discovered evidence[3] or to file a claim for further compensation. He may also file claims for the prior industrial injuries insofar as he is permitted to do so under G.L.c. 152, § 41 and request consolidation with the pending proceeding.
The order for partial compensation is vacated and the case is remanded for further proceedings consistent with this opinion. The employee is awarded counsel fees of $1,000, plus necessary expenses. See G.L.c. 152, § 13A(6).
So ordered.
________________________ Suzanne E.K. Smith Administrative Law Judge
________________________ Edward P. Kirby Administrative Law Judge
________________________ Susan Maze-Rothstein Administrative Law Judge
SKS Filed: March 27, 1996