BOARD No. 024680-91Commonwealth of Massachusetts Department of Industrial Accidents
Filed: March 4, 1996
REVIEWING BOARD DECISION
(Judges Fischel, McCarthy and Wilson)
APPEARANCES
Joel Pressman, Esq., for the employee
Maurice Shaughnessy, Esq., for the self-insurer at hearing
Paul M. Moretti, Esq., on brief to the reviewing board
McCARTHY J.
On May 14, 1991, Agnes Johnson, a delicatessen counter worker for Purity Supreme, suffered an industrial injury arising out of and in the course of her employment. The self-insurer accepted the claim as compensable and began payment of weekly temporary total incapacity benefits under § 34 of the Act.[1]
Following a conference under § 10A on the self-insurer’s complaint to terminate or modify weekly benefits, an administrative judge filed an order authorizing discontinuance of weekly incapacity compensation as of October 9, 1992. The employee appealed the conference order and the case came back for a full evidentiary hearing before the same administrative judge. The only witnesses were the employee and an impartial physician, Doctor Margaret M. Landy, a board certified orthopedic surgeon who testified by way of deposition and whose report of examination under § 11A was also entered into evidence.
Following are some of the material findings made by the judge in his written decision. The employee, who was fifty-nine years old at the time of the hearing, lives in Malden, Massachusetts. Her formal education ended after the second year of high school. Prior to her concurrent employment at Purity and Stryco, Ms. Johnson worked some twelve years for a catering and canteen company cooking and making sandwiches. Prior to that she worked for a linen supply company for twenty-eight years as a folder and floor lady. Her work at Purity required that she use both hands for lifting and carrying weights of 15-25 pounds. As an electronics technician for Stryco manipulative skills with both hands were needed. The industrial injury occurred on May 14, 1991 when the employee fell after striking a metal plate affixed to the side of a table. Ms. Johnson struck her chest and her right shoulder. She also hit a wall with her head and struck her right shoulder a second time. She testified about pain in her right shoulder, the right side of her neck and her right forearm. The judge specifically found Ms. Johnson’s testimony credible when she testified that she had no symptoms with respect to her neck and right arm prior to her injury at work. (Dec. 10.) The employee described her limited activities at home. The judge detailed these activities (Dec. 6.) and pointed out that he gave great weight to her testimony. (Dec. 7.)
Turning to the report and opinion of the impartial medical examiner, the judge reported that it was Doctor Landy’s opinion that the employee had a 10% permanent partial medical disability in her right forearm and right shoulder causally related to the accepted industrial injury. The judge also noted that Doctor Landy was of the opinion that the employee’s underlying arthritis condition had been exacerbated by chiropractic treatments.
Ultimately the judge concluded that the employee was totally incapacitated from work when her medical limitations were looked at in the context of her age, education, work history and lack of transferrable skills. (Dec. 8.)
Moving to the critical question of causal relationship between the employee’s medical condition and the industrial injury, the judge made the following general finding:
In adopting, in part, Dr. Landy’s opinion that the employee is unable to work, I am guided by the legal standard that where the workplace injury acts on the employee’s existing condition of health at the time and causes or contributes to any disability present or aggravates a pre-existing disease to the point of medical disablement, the injury is compensable. Dr. Landy opines the employee is principally disabled because of other problems — degenerative arthritis to her cervical area and shoulder which were work related. She found that initially there may have been a flare up of her existing arthritis temporarily only (See deposition page 27) but then opines the employee is disabled from trauma to her arm and shoulder. Dr. Landy testified her exam of the employee was over one and half years (sic) after the employee’s injury and it was difficult to opine with certainty on causal relationship.
Dr. Landy testified the employee’s condition worsened due to continued chiropractic manipulation. (Depo. 32.) Employee argues that even if this were the case, the results of such treatment to help the employee improve, even if performed improperly, would still be related to the injury. See Locke Workers Compensation, Mass. Practice, Vol. 29 Section 222, page 261. I agree. (Dec. 9.)
The Judge then ordered the self-insurer to resume payment of temporary total incapacity benefits retroactive to October 9, 1992, the date of termination by conference order. The judge also ordered payment of reasonable medical expenses, counsel fees and deposition costs. We have the case on appeal by the self-insurer who contends that the opinion of the § 11A impartial medical expert was nothing more than an expression of possibility or chance of existence of causal connection and was therefore legally insufficient to support the judge’s ultimate finding.
We agree with the self-insurer that the burden is on the employee to prove that the industrial injury of May 14, 1991 was the probable cause of her present medical disability and incapacity. See Sevigny’s Case, 337 Mass. 747, 749 (1958). We also agree that causal relationship between medical disability and an industrial injury is usually a matter beyond the common knowledge and experience of the judge who must decide the issue only with aid of expert medical testimony. See King’s Case, 352 Mass. 488, 490
(1967). The only expert testimony before the hearing judge was the testimony of Doctor Landy. Under the provisions of § 11A this opinion must be accorded prima facie weight. The self-insurer argues that Doctor Landy was of the opinion that the subject industrial accident did not cause or aggravate the underlying arthritis and at most may have aggravated the symptoms of arthritis transiently (Landy Depo 21-23, 27.) Further the self-insurer contends there is neither evidence of nor a finding that the chiropractic manipulations were treatment for the transient symptoms related to the work injury or for the symptoms related to the pre-existing arthritis. Since chiropractic treatment did not begin until a year after the accident a critical finding must be made. Was the chiropractic effort treating the underlying arthritis or was it treating the transient flare up of symptoms caused by the accident?[2]
In the extended general finding set out above, the judge indicated the he was adopting Doctor Landy’s opinion in part. On appeal the self-insurer in effect asks what part of Doctor Landy’s opinion supports the ultimate finding of ongoing causally related incapacity. We think the self-insurer’s point is well taken. We return this case to the senior judge for reassignment to the hearing judge for reconsideration and for further findings consistent with this opinion. At his discretion the hearing judge may order or invite the presentation of further testimony on the issues before him.
So ordered. ________________________ William A. McCarthy Administrative Law Judge
Filed: March 4, 1996
________________________ Carolynn N. Fischel Administrative Law Judge
________________________ Sara Holmes Wilson Administrative Law Judge