CAMUSO v. WESTINGHOUSE ELECTRIC CO., No. 73217-91 (Sep. 26, 1997)

BOARD No. 73217-91Commonwealth of Massachusetts Department of Industrial Accidents
Filed: September 26, 1997

REVIEWING BOARD DECISION

(Judges Fischel, Levine and Wilson)

APPEARANCES

George N. Keches, Esq., for the employee at hearing.

Judith B. Gray, Esq., for the employee at hearing and review.

Michael A. Fager, Esq., for the self-insurer.

Joseph Durant, Esq., for Liberty Mutual Ins.

FISCHEL, J.

The self-insurer appeals from a decision in which an administrative judge concluded that it was liable for continuing medical treatment causally related to an April 17, 1991 injury. The self-insurer contends that the judge erred, as there was no medical evidence adduced at the hearing to support his finding of continuing causal relation after April 1992. We agree that the employee failed to meet his burden of proof that the medical bills after April 1992 were reasonable, necessary and causally related to the April 1991 work injury. We reverse the finding. The self-insurer also contends that the judge erred in determining that a subsequent industrial injury in Vermont was outside the jurisdiction of the Department under G.L.c. 152. We agree with that contention as well, and reverse the judge’s denial of jurisdiction.[1]

The employee, a millwright working out of union Local 1121, was injured at work on April 17, 1991 when an 80 pound piece of pipe struck him in the chest. (Dec. 39-40.) He felt immediate, severe pain. (Dec. 40.) He received medical treatment at a hospital and then worked light duty for three days until April 20, 1991 when he was laid off for reasons unrelated to his injury. (Dec. 40.) Having been told at the hospital that his chest would take four months to heal, the employee tried to take it easy from May to October 1991. (Dec. 41.) Although his pain from the costochondral injury continued and he received ongoing medical treatment, he started working more frequently, accepting five different jobs through the union and working a total of 507 hours from October 1991 through March 1992. Id.

Early in 1992 the employee learned through the union of a large job with NPS Energy Services at the Vermont Yankee power plant near Brattleboro, Vermont. Id. The union business agent called the employee at his home in Malden, Massachusetts and informed the employee that he would be required to report to the job site for three days of tests, without pay, in order to be considered for the position. Id. If he passed and was then hired, the employee would be paid for those three days. Id. The employee reported to Vermont Yankee for the pre-employment testing, which included a physical examination, a written test and a drug test.Id. Two weeks later, from the union’s headquarters in Allston, Massachusetts, the union business agent called the employee at his Malden home and advised him that he had the job at Vermont Yankee. (Dec. 41, 42, 45, 46.)

The employee reported to Vermont Yankee in April 1992. The judge found that a few weeks later he exacerbated his chest pain when he attempted to use a sixteen pound sledge hammer. (Dec. 42.) The employee suffered a significantly increased level of pain from that incident until approximately two months later, at which time the pain returned to its pre-hammering incident status. Id.

The employee brought a claim for § 30 medical benefits for treatment related to his April 17, 1991 injury and the April 1992 aggravation. The employee made no claim for weekly incapacity benefits. (Dec. 43.) At the hearing, the self-insurer, the first employer, moved to join the insurer of Vermont Yankee, which motion was allowed. (Dec. 38.) The self-insurer raised the issues of liability and disability. (Dec. 36.) The insurer for Vermont Yankee raised the issues of liability and jurisdiction over the occurrence of the alleged aggravation in Vermont. (Dec. 43.)

The judge found that the employee had sustained an industrial injury on April 17, 1991, while working for the self-insured employer. The judge found that the employee’s medical treatment received during the year following that incident was compensable under the provisions of § 30. (Dec. 44.)

The judge further found that in April 1992, while working for Vermont Yankee, the employee had aggravated his still painfully Appeal from injured chest while working for NPS Vermont Yankee. Id.
The judge found that the aggravation lasted until sometime in June 1992, when the employee reported that his symptoms of pain returned to the same level as before the aggravation occurred. Id. However, the judge determined that he had no jurisdiction over the incident in Vermont, and therefore denied the claim against the insurer of Vermont Yankee. (Dec. 45, 50.)

The judge was then faced with the question of what to do with the employee’s medical treatment after that April 1992 incident at Vermont Yankee. The judge determined that the self-insurer should not be held responsible for the approximately two months of aggravation of symptoms reported by the employee. (Dec. 47.) The judge found, however, that the self-insurer was liable for the employee’s medical treatment as of the June 1992 return to baseline. The judge stated:

Aside from the increase of pain described by the employee there is no evidence of the second injury. No objective medical findings have been offered. Therefore the evidence available leads inescapably to the conclusion that the injury resulting from the first incident continued unabated throughout the duration of the second injury, and survived and outlasted it.

(Dec. 48.) In a decision filed on December 20, 1994, the judge concluded that the employee’s medical treatment from June 17, 1992 onward should be assessed against the self-insurer.[2] The self-insurer appeals to the reviewing board.

The self-insurer argues that the judge’s conclusion that the April 1992 aggravation had resolved two months later cannot stand, as it was not based on expert medical evidence. The contention is correct. In order for the judge to find that the employee’s present and continuing need for medical treatment was caused by the original 1991 injury, rather than the 1992 aggravation, the judge needed expert medical evidence. Galloway’sCase, 354 Mass. 427, 431 (1968); Medeiros v. San Toro Mfg.,
7 Mass. Workers’ Comp. Rep. 66, 68 (1993). Although the employee testified, and the judge so found, that his symptoms returned to their pre-aggravation status as of June 1992, such lay evidence is not a substitute for the opinion of a medical expert.[3] Cf.Bedugnis v. Paul McGuire Chevrolet,
9 Mass. Workers Comp. Rep. 801, 803 (1995); Josi’s Case, 324 Mass. 415, 417-418 (1949) (lay testimony strengthens inconclusive expert opinion of causal connection between work trauma and development of arthritis). In this case, the parties opted out of the § 11A impartial process. Subject to relevant law, they were, therefore, free to offer appropriate medical evidence on the disputed issues. However, there was no medical evidence presented on the question of whether a 1992 aggravation had occurred, and if so, when and whether it sub-sided.[4]

While it was the self-insurer who raised the issue of a second injury, once the issue was joined, it was the employee’s burden of proof as to the medical causation issues involved. SeeDalrymple v. Reidy Body and Paint Shop, Inc., 10 Mass. Worker’s Comp. Rep. 275, 277-278 (1996). Because the employee failed to meet his burden of establishing the self-insurer’s liability for continuing medical treatment after April 1992, we reverse the judge’s findings in that regard. The employee may exercise his rights under G.L.c. 152, § 16 to pursue further periods of needed medical care.

We also find merit in the self-insurer’s argument that the judge erred by declining jurisdiction over the Vermont Yankee aggravation injury. The jurisdictional reach of G.L.c. 152 applies to “every person in the service of another under any contract of hire, express or implied, oral or written,” § 1 (4),[5] who “receives a personal injury arising out of and in the course of his employment . . . whether within or without thecommonwealth.” G.L.c. 152, § 26 (emphasis added). SeeLavoie’s Case, 334 Mass. 403, 407 (1956). A contract of hire is formed at the time of acceptance of a job offer. See Conte v.P.A.N. Construction Co., 9 Mass. Workers’ Comp. Rep. 497, 499 (1995); Conant’s Case, 33 Mass. App. Ct. 695, 698-699 (1992) (jurisdiction found when a Vermont employer’s offer of employment was accepted in Massachusetts). Here, as in Conant’s Case, supra, the acceptance of the offer of employment, which occurred in Massachusetts, formed the contract of hire. There is no basis for distinguishing Conant’s Case, supra, from the present set of facts; therefore, we reverse the judge’s finding of lack of jurisdiction over the 1992 aggravation injury.

We reverse the order for medical payments as of June 16, 1992, and reverse the denial of jurisdiction over the claim for an industrial injury occurring at Vermont Yankee. So ordered.

________________________ Carolynn N. Fischel Administrative Law Judge
________________________ Frederick E. Levine Administrative Law Judge
________________________ Sara Holmes Wilson Administrative Law Judge

Filed: September 26, 1997