BOARD NO. 05874091Commonwealth of Massachusetts Department of Industrial Accidents
Filed: May 23, 1996
REVIEWING BOARD DECISION
(Judges McCarthy, Fischel and Wilson)
APPEARANCES
Elaine Eliopoulos, Esq., for the employee at hearing James N. Ellis, Jr., Esq., for the employee on brief Donna Gully Brown, Esq., for the insurer
McCARTHY, J.
Cynthia Gaudette, now thirty-two years old, began her employment with Central Massachusetts Health Care in September 1990. Originally hired as a junior accountant, she was promoted to the position of payroll coordinator. Her job duties included computer entry, calculator and secretarial work. She worked in that capacity until approximately October 24, 1991. She has not worked since. (Dec. 5).
The employee alleges that the repetitive use of computer and calculator keyboards led to right wrist discomfort starting in May 1991. She sought initial medical treatment that same month and continued to work while taking Advil(R) and Tylenol(R). On October 30, 1991 she underwent right wrist ganglion excision surgery. Her convalescence included home exercises and physical therapy. Thereafter she consulted with three surgeons one of whom recommended capsulatomy surgery. (Dec. 6).
The employee filed a claim for weekly incapacity benefits which the insurer resisted. Following a conference the insurer was ordered to pay § 34 benefits from December 28, 1991 to August 20, 1992. Both parties appealed and after a full evidentiary hearing the administrative judge filed a decision denying the employee’s claim. (Dec. 9). The case is before us on the employee’s appeal.
The following findings made by the administrative judge are material to the employee’s appeal.
In his report Dr. Malek[1] indicates that he saw the employee on March 18, 1993, that he took a history from her, reviewed the medical records and reports submitted by the parties at the conference and conducted a physical examination as well. Dr. Malek’s diagnosis of the employee’s condition was stiffness of the right wrist following ganglion resection. Dr. Malek opined that the employee may have had a tendinitis [sic] originally and then developed a ganglion. He thought it, therefore, possible to say that at least the tendinitis [sic] condition arose out of her work and, since the ganglion was related to it, attribute partially her work for her pathology. The doctor further opined that although the employee was not able to do heavy work she was capable of doing light work on a non-repetitive basis. (Dec. 7).
I do not find the employee to have sustained an industrial injury, adopting the opinion of Dr. Malek who thought it possible that the employee’s wrist problems were related to her work activities, but did not express an opinion that it was likely related to that activity or of any degree of probability beyond the mere possibility. As there is no expert opinion which would establish a nexus between the employee’s complaints and her work to the degree of certainty required I am unable to find the employee’s condition to have been the result of an industrial injury. (Dec. 8-9).
The employee argues that the hearing judge erred in not making sufficient findings regarding the repetitive nature of the employee’s job and the onset of her right wrist problems. We agree that additional subsidiary findings of fact regarding the nature of the employee’s work would have been welcome. A critical issue before the judge was whether the employee’s work activities fell on the side of wear and tear or compensable injury. That analysis requires application of the principles set out inZerofski’s Case, 385 Mass. 590 (1982). In Zerofski the court stated, “The line between compensable injury and mere `wear and tear’ is a delicate one . . . To be compensable, injury must arise `out of’ as well as `in the course of’ employment, and [a] disease of the mind or body which arises in the course of employment, with nothing more, is not within the act.'” Id.,
quoting Maggelet’s Case, 228 Mass. 57, 61 (1917). The distinction between compensable and noncompensable injuries involves more than the factual problem of causation. When work contributes to causation no more so than a great many other activities pursued in its place would have causation in fact is an inadequate test. “To be compensable, the harm must arise either from a specific incident or series of incidents at work or from an identifiable condition that is not common and necessary to all or a great many occupations.” Id. at 594-595.
Although it would have been preferable if the judge had made more findings about the precise nature of Ms. Gaudette’s work and then looked at the findings in light of the principles set out inZerofski, the failure to do so is not fatal in this case. The hearing judge read the § 11A opinion as not establishing causal relation by a reasonable degree of medical certainty. The § 11A opinion on causal relation is that “. . . this patien may have had a tendinitis [sic] originally and then developed a ganglion. It is therefore possible [emphasis added] to say that the condition arose out of her work, at least the tendinitis [sic], and since the ganglion was related to it, one has to attribute partially her work to her pathology.” (Statutory Ex. 1, p. 2).
The employee had the opportunity to clarify the evident ambiguity contained in the report by taking the deposition of the § 11A examiner. For whatever reason she did not. (Dec. 4). We cannot say that the judge’s conclusion that there was a failure of proof of causal relationship was beyond the scope of his authority, arbitrary or capricious or contrary to law. We therefore affirm.
So ordered.
_____________________ William A. McCarthy Administrative Law Judge
_____________________ Carolynn N. Fischel Administrative Law Judge
_____________________ Sara Holmes Wilson Administrative Law Judge
Filed: May 23, 1996