BOARD No. 011550-95Commonwealth of Massachusetts Department of Industrial Accidents
Filed: January 5, 1998
REVIEWING BOARD DECISION
(Judges Maze-Rothstein, McCarthy and Smith)
APPEARANCES
Brailey E. Newton, Esq., for the employee
Terence H. Buckley, Esq., for the insurer
MAZE-ROTHSTEIN, J.
The insurer appeals from a decision in which the employee was awarded a period of G.L.c. 152, § 34 temporary total weekly incapacity benefits and continuing G.L.c. 152, § 35
partial weekly incapacity benefits. As grounds the insurer asserts there is insufficient evidence of medical causation upon which to base the award. We recommit the decision to the administrative judge for further findings or clarification. G.L.c. 152, § 11C.
In her native Guyana, Carmen Harris, graduated from high school and worked for several years in a family restaurant. Later, she worked as a cook for the United States Marines for three years up through 1991. She eventually emigrated to the United States and from 1992 worked at the Fernald Development Center. (Dec. 3.) Her responsibilities at Fernald included moving patients in wheelchairs and lifting, bathing, feeding and dressing them daily. (Dec. 3-4.)
On March 30, 1995, the employee struck her forearm on the edge of a wheelchair while attempting to move a patient onto a bus. She felt her wrist drop and “her arm went dead.” (Dec. 4.) The employee sought medical care the next day and remained out of work until April 12, 1995, when she returned to modified duties that did not require lifting patients. She left Fernald’s employ on February 25, 1996. (Dec. 4.)
After a § 10A conference on the employee’s claim for § 34 weekly temporary total incapacity benefits, the insurer was instead ordered to pay § 35 weekly partial incapacity benefits, from February 26, 1996 and continuing based on an assigned earning capacity of $100.00 per week. The insurer appealed and a hearin de novo was held before the same administrative judge.
Pursuant to G.L.c. 152, § 11A, a physician examined the employee on July 2, 1996. The judge denied the insurer’s motion to admit additional medical testimony.[1] (Tr. 16-17.) Neither party chose to depose the § 11A doctor. (Dec. 2-3.)
In the § 11A report, the physician opined “it is hard to establish a cause-and-effect [sic] relationship between [the employee’s] symptoms and the original story”. In the decision the judge mentioned that the doctor did note that the employee had transferred her functions to her opposite arm and that this was consistent with her credible testimony. (Dec. 6; Rep. of Dr. Skoff, 2.) The judge went on to find that he saw no inconsistency in the employee’s account of her injury. Id. Further, the judge adopted the doctor’s opinion of positive medical findings of either ulnar nerve compression at the elbow or cubical tunnel syndrome in the affected extremity, which had not reached an end result. (Rep. of Dr. Skoff, 2-3; Dec. 7.) The judge determined that the cause and effect opinion of the § 11A examiner was tempered by his opinion that a more recent nerve conduction study appeared to be in order and adopted the medical opinion that the employee’s condition had not changed in the six months prior to the exam. (Dec. 8.)
The administrative judge awarded a closed period of § 34 weekly temporary total incapacity benefits for the period of March 30, 1995 through April 12, 1995; § 35 temporary partial incapacity benefits with an assigned earning capacity of $100.00 per week from February 26, 1996 and continuing; and reasonable and necessary medical expenses pursuant to § 30. (Dec. 9-10.) We have the case on the insurer’s appeal.
The insurer contends that the incapacity and causal relationship findings are not adequately supported by the medical evidence. More specifically, the insurer asserts that the judge nullified the § 11A medical opinion of no causal relationship and made his own finding of causal relationship despite the doctor’s opinion to the contrary. As the insurer’s argument is plausible, recommittal is appropriate. G.L.c. 152, § 11C.
It is not at all clear how the judge arrived at his conclusion that the employee had proved incapacity causally related to her industrial accident. The § 11A physician opined that such causal relationship was “hard to establish”, given the employee’s history of the accident and the global nature of her right arm complaints. It may be that the judge felt this was a case where an ambiguous expert medical opinion as to causal relationship could be clarified and rendered legally sufficient when considered in conjunction with lay evidence. See Josi’s Case, 324 Mass. 415, 418
(1949); Bedugnis v. Paul McGuire Chevrolet, 9 Mass. Workers’ Comp. Rep. 801, 803 (1995). On recommittal, the judge must clarify whether this is what he was doing when he awarded incapacity benefits.
On recommittal, the judge might alternatively reconsider the self-insurer’s Motion to Admit Additional Medical Evidence. Indeed, given the ambiguity in the medical evidence, permitting additional submissions would be salutary. Where the impartial medical opinion does not answer part of the required statutory inquiry, see G.L.c. 152, § 11A(2)(i)-(iii), additional medical evidence is warranted. Lebrun v. Century Markets, 9 Mass. Workers’ Comp. Rep. 692, 696 (1995). This is particularly so when the judge is faced with a claim that, based on the other evidence in the case, he believes to be meritorious but the § 11A report that falls short of a clear disposition of the medical issues in the case. See Wilkerson v. City of Peabody, 11 Mass. Workers’ Comp. Rep. 263, 265 (1997); Miller v. MDC, 11 Mass. Workers’ Comp. Rep. ___ (1997). Compare Murray v. Walbar Metals,Inc., 11 Mass. Workers’ Comp. Rep. ___ (October 8, 1997) (where § 11A doctor supplemental opinion modified from one of equivocation to no causation after testing gave negative results on allergic reaction, then judge must either allow additional medical evidence or deny the claim).
The decision is recommitted to the administrative judge for further findings consistent with this opinion. We specifically reserve the employee’s rights regarding her psychiatric condition, which may be pursued by either a motion to amend the existing claim or by the filing of a new claim.
So ordered.
_____________________ Susan Maze-Rothstein Administrative Law Judge
______________________ William A. McCarthy Administrative Law Judge
_____________________ Suzanne K. Smith Administrative Law Judge
Filed: January 5, 1998