BOARD NO. 010410-92Commonwealth of Massachusetts Department of Industrial Accidents
Filed: June 24, 1996
REVIEWING BOARD DECISION
(Judges Fischel, McCarthy, and Wilson)
APPEARANCES
W. Frederick Uehlein, Esq., for the employee
Paul M. Moretti, Esq., for the in, surer
WILSON, J.
The employee appeals from the decision of the administrative judge that denied and dismissed the employee’s claim for weekly benefits for temporary and total incapacity and medical benefits under G.L.c. 152, § 34, 13 and 30. We agree with the employee that the denial of her claim was based on a faulty legal analysis. We vacate the decision and remand the case.
Ann DeMartino was employed as a bank teller/customer service representative for approximately twelve years. She had undergone right knee surgery in 1985, after which she returned to work without any period of disability until the incident in question. On February 24, 1992, the employee was leaving the bank to go to lunch when she tripped and fell, injuring her right knee. The employee then returned to her desk and, with the assistance of crutches ordered from a local drug store, finished out the work day. (Dec. 3, 4.)
The employee visited her treating orthopedic surgeon, Dr. Pearlstein, the next day. Dr. Pearlstein scheduled the employee for surgery and on February 26, 1992, the employee underwent a partial, right medial meniscectomy and debridement for a torn right medial meniscus and degenerative arthritis. (Dec. 5.) The employee continued to treat with Dr. Pearlstein, underwent physical therapy, and then on December 9, 1992, a right PCA DURACON total knee replacement. (Dec. 5.) Physical therapy was again prescribed and the post-operative diagnosis was severe degenerative arthritis of the right knee. (Dec. 5, 6.)
When the insurer did not accept liability for the alleged injury, the employee filed a claim seeking payment of medical expenses under §§ 13, 30 and temporary disability benefits under § 34. Following a conference, the administrative judge denied the employee’s request. The employee appealed to a hearing de novo.
The employee was examined by Dr. James Broome pursuant to § 11A. The administrative judge accepted the impartial examiner’s report into evidence. He adopted the medical opinion that the employee suffered from a torn meniscus and degenerative arthritis of the knee operated on in 1985 prior to her work injury on February 24, 1992, and that it was the torn meniscus and associated osteoarthrosis with its ongoing deterioration that necessitated the knee replacement in December 1992, rather than the incident that occurred on February 24, 1992. (Dec. 6, 8, 11.) The judge also found that the employee experienced ongoing problems with her knee, received cortisone injections in January 1992, and had consulted with an orthopedic physician regarding corrective surgery prior to her February 1992, incident. (Dec. 16.) The judge determined as well that the February 24, 1992 incident did not constitute an identifiable injury for which the insurer could be found liable, (Dec. 11), and that “the activities of the employee on February 24, 1992 were common to all occupations.” (Dec. 11-12.) The judge concluded by stating, “but for the continuing effect of the injury of 1985, the complex tear of the posterior horn of the medial meniscus, the employee would not have required the two operations and the resultant disability:” (Dec. 12.)
One argument raised by the employee disposes of this appeal. The employee takes aim at the judge’s reliance on the rationale ofZerofski’s Case, 385 Mass. 590 (1982), as the legal underpinning for his general findings denying the existence of an industrial injury within the meaning of the Act. Because we agree with the employee that the analysis of the event alleged as the industrial accident is misplaced and contrary to law, we must vacate the decision and remand the case.
We focus on the judge’s conclusion:
I find that the incident of February 24, 1992 did not constitute an identifiable injury for which the insurer could be found liable. I find that the incident on February 24, 1992 was not an independent supervening cause of the employee’s incapacity.[1] I find that the activities of the employee on February 24, 1992 were common to all occupations.
(Dec. 11-12) (emphasis added). The language set out above plainly refers to the analysis of the factors that constitute a compensable industrial injury under Zerofski’s Case, 385 Mass. 590
(1982). In Zerofski’s Case, the Supreme Judicial Court made the following “restatement of the range of harm covered by the act[:]”
To be compensable, the harm must arise either [1] from a specific incident or series of incidents at work, or [2] from an identifiable condition that is not common and necessary to all or a great many occupations.
Id. at 594-595 (footnotes omitted) (emphasis added). The harm in the instant case is alleged to have occurred “when [the employee] tripped and fell injuring her right knee” at work. (Dec. 4.) We take judicial notice of the fact that a trip and fall is “a specific incident” under the first prong of the Zerofski analysis,id. A trip and fall is not, by any measure, an activity “common to all occupations.” The findings indicate a misreading ofZerofski’s Case. Once an employee, as the instant case, proves a specific incident under Zerofski’s Case, that is the end of it. The second prong of the analysis, set out in the disjunctive, is unnecessary. As it was contrary to law for the judge to deny this claim based on this misapplication of the Zerofski standard, we must vacate the decision and remand the case.
Our result is further compelled by the inconsistency between the subsidiary findings and the ultimate denial of the claim. The decision contains the subsidiary finding of fact, that “[o]n or about February 24, 1992, the employee was leaving the bank to go to lunch when she tripped and fell injuring her right knee.”
(Dec. 4) (emphasis added). The judge then goes on to find as fact that “[i]mmediately after the fall, the employee returned to her desk, ordered crutches from the local drug store and finished work that day.” (Dec. 4) (emphasis added). These findings appear to outline a compensable claim, at least for the minimal § 30 medical benefit of the payment for the rental of crutches. We see nothing else in the decision that bridges the rather significant gap between these findings and the judge’s ultimate conclusion of denial of the claim in toto. A decision cannot stand in the absence of a foundation for an ultimate conclusion denying benefits. SeeCrowell v. New Penn Motor Express, 7 Mass. Workers’ Comp. Rep. 3, 4 (1993), citing Judkin’s Case, 315 Mass. 226 (1943).
Two other issues warrant our comment in passing. The judge made lengthy findings based on the medical opinion of Dr. Richard Pearlstein, the employee’s treating physician. (Dec. 5-6.) He specifically adopted part of that opinion in his general findings. (Dec. 11.) Under G.L.c. 152, § 11A, however, the sole medical testimony in evidence was that of the impartial physician, Dr. James Broome. The judge heard and denied the employee’s request for a finding that the impartial medical report was inadequate or the medical issues complex. (Dec. 1-2.) It was error to rely on testimony that was not in evidence.
Finally, this is a case that requires an application of G.L.c. 152, § 1 (7A), as amended by St. 1991, c. 398, § 14, which amendment narrowed the standard of causation for certain injuries occurring on or after its effective date of December 23, 1991. The new § 1 (7A) provides in pertinent part:
If a compensable injury or disease combines with a preexisting 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 that such compensable injury or disease remains a major but not necessarily predominant cause of disability or need for treatment. (emphasis added).
Here, the employee presents a claim of a work-related trip and fall injury, which “aggravated the underlying pre-existing condition of the employee’s right knee.” (Dec. 7.) On remand, the judge must determine whether the employee’s pre-existing knee condition is of a compensable or non-compensable nature, and then apply the proper standard of causation under G.L.c. 152, § 1 (7A) (St. 1991, c. 398, § 14). See Robles v. Riverside Management,
10 Mass. Workers’ Comp. Rep. ___ (March 14, 1996).
As the judge no longer sits as a member of the Industrial Accident Board, we transfer the case to the senior administrative judge for reassignment for a hearing de novo.
So ordered.
________________________ Sara Holmes Wilson Administrative Law Judge
________________________ Carolynn N. Fischel Administrative Law Judge
________________________ William A. McCarthy Administrative Law Judge
Filed: June 24, 1996