BOARD No. 77543-91Commonwealth of Massachusetts Department of Industrial Accidents
Filed: January 31, 1997
REVIEWING BOARD DECISION
(Judges Fischel, Kirby and Wilson)
APPEARANCES
Peter T. Zatir, Esq., for the employee.
Ann P. Hagearty, Esq., for the insurer.
FISCHEL, J.
The employee appeals from an administrative judge’s decision which found the insurer liable for an August 1991 neck injury but denied his claim for weekly incapacity and medical benefits for neck surgery. The employee argues that where the sole medical expert causally related the neck surgery to his work injury, the judge erred. We recommit for clarification of the judge’s basis for rejecting the § 11A medical expert opinion.
The employee, Joseph Garcia, emigrated from Portugal in 1971 with a ninth grade education. (Dec. 3.) As a packer and general laborer at Swank, Inc., he was required to lift boxes weighing up to fifty pounds. (Dec. 4.)
On August 2, 1991, the employee experienced pain in his neck while lifting a packaged box. Id. The employee was taken to Morton Hospital where he was examined and treated with physical therapy. Id. After taking two weeks vacation, the employee returned to full-time work and did not seek any further medical attention. On October 26, 1992, the employee’s pain increased to the point he was unable to continue work. Id. He has not returned to work since. Id. The employee underwent surgical fusion at C5-6 on June 15, 1993. (Dec. 5.) He filed a claim for workers’ compensation benefits for incapacity beginning October 26, 1996 and for the June 15, 1993 neck surgery.
The claim was denied at conference and the employee appealed to hearing, testifying with the assistance of an interpreter. (Dec. 3.) Prior to hearing, on June 19, 1995, the employee was examined by Dr. Thomas J. Barry, Jr., an impartial medical examiner appointed pursuant to G.L.c. 152, § 11A. Dr. Barry diagnosed a residual cervical radiculopathy secondary to the herniated intervertebral disc at C5-6 and, based on the history given by the employee, opined that the employee’s present medical condition was causally related to the August 2, 1991 injury. (Dec. 11.)
At hearing the insurer denied liability for the claimed work injury alleged to have occurred on August 2, 1991, and disputed whether any incapacity for work resulted from the alleged incident. (Dec. 3.) After hearing, the judge filed a decision in which he found that the employee sustained an industrial injury to his neck at work on August 2, 1991. (Dec. 11.) The judge found that the employee underwent surgical cervical fusion at C5-6 on June 15, 1993. (Dec. 5.) He set forth the history which Dr. Barry relied upon in forming his expert opinion that there was causal relationship between the work injury in 1991 and the employee’s present medical condition which prevented heavy lifting. (Dec. 9-11.)[1] The judge noted Dr. Barry’s view that the employee was not at an end medical result when examined. (Dec. 11.)
The judge found that the testimony of witnesses who observed the employee at the Taunton Sports Club in March and April 1995, gave rise to the inference that the employee was then working at the Club as a bartender on at least a part-time basis. (Dec. 7, 8, 12.) He found the employee to have a significant earning capacity. Id. The judge then ordered the insurer to pay medical benefits to the employee for treatment rendered during the month of August 1991, but denied the employee’s claim for medical benefits thereafter. The judge stated:
The fact that the employee continued to work without medical treatment or medication for a period of some fourteen months creates a significant question as to the causal relationship of any disability occurring after October 26, 1993 (sic).
(Dec. 12.) Accordingly the judge denied the remainder of the employee’s claim, which included the claim for weekly incapacity benefits. (Dec. 13.)
On appeal, the employee contends that it was error as a matter of law to deny benefits in the face of the uncontroverted § 11A medical opinion establishing causal relationship between the industrial injury and the employee’s cervical spine condition. The employee argues that the § 11A opinion must be relied upon because it has prima facie weight as to the medical issue of causation and that it was based on undisputed history. (Employee’s Brief, 3-4.)
It is well settled that the prima facie weight of a § 11A opinion confers an artificial legal force which compels the conclusion that the evidence contained therein is true. See Cookv. Farm Services Store, Inc. 301 mass. 564, 566 (1938). However, “the prima facie status of the medical report, notwithstanding, the judge may also consider the testimony of the lay witnesses and other evidence. . . . Moreover, the prima facie evidence in the impartial report loses its artificial legal force when it is met with other evidence that warrants a contrary conclusion.”Bedugnis v. Paul McGuire Chevrolet,
9 Mass. Workers’ Comp. Rep. 801, 802-803 (1995). A judge is free to adopt any, all, or none of any expert medical opinion before him, Amon’s Case, 315 Mass. 210
(1943), albeit, if he refuses to adopt the sole uncontroverted opinion of a medical expert, the judge is then required to adequately set forth the reasons for rejecting the opinion in his decision. Galloway’s Case, 354 Mass. 427, 431
(1968); Walczak v. Mass. Rehabilitation Comm’n.
4 Mass. Workers’ Comp. Rep. 303, 304 (1990).
When a judge finds the facts to be otherwise than then history relied upon by the medical expert, there are sufficient grounds for rejecting the uncontroverted medical opinion to the extent the opinion was based upon that history. See Scandone v.J.F.I., Inc., 4 Mass. Workers’ Comp. Rep. 46 (1990).
The question arises whether the facts as found by the judge differ from the facts relied upon by the medical expert in forming his opinion, so as to form a proper basis for rejecting that opinion. See (Dec. 4, 5, 9, 10, 11.) The employee argues that the facts are not in dispute, and that the facts found by the administrative judge are essentially the same facts relied upon by the § 11A medical expert. (Employee’s brief, p. 3.) We note from the judge’s findings that he referenced the fourteen months of continued work without treatment as a basis for questioning causal relationship. (Dec. 12.) We note from his findings that it would appear that the medical expert did have that history before him when the expert rendered his affirmative opinion on causal relationship. See (Dec. 9, 11.) Without further findings or clarification, we can only speculate as to the judge’s grounds for rejecting the § 11A opinion. See Praetzv. Factory Mutual Eng’g. Research,
7 Mass. Workers’ Comp. Rep. 43 (1993).
We note that the judge found the employee’s testimony was somewhat equivocal, vague and evasive. (Dec. 12.) Nonetheless, the judge found that the employee sustained an injury to his neck at work on August 2, 1991. (Dec. 11.) We find in the decision no issue raised and no finding made as to any supervening incident or injury which could relieve an insurer of liability for medical care subsequent to a work related injury. On recommittal, the judge should clarify his reasons for finding the insurer not liable for the employee’s neck surgery in June 1993.
We therefore recommit this matter to the administrative judge for further findings consistent with this opinion.
So ordered.
__________________________ Carolynn N. Fischel Administrative Law Judge
__________________________ Edward P. Kirby Administrative Law Judge
Filed: January 31, 1997 cc: