KITMACHER v. CLARK, No. 100770-86 (Dec. 11, 1996)

BOARD No. 100770-86Commonwealth of Massachusetts Department of Industrial Accidents
Filed: December 11, 1996

REVIEWING BOARD DECISION

(Judges Fischel, Wilson Kirby)

APPEARANCES

Alma R. Arlos, Esq., for the employee.

Norman J. O’Connor, Esq., for the insurer.

FISCHEL, J.

Both the insurer and employee appeal from the decision of the administrative judge awarding G.L.c. 152, § 35
partial incapacity benefits. The insurer contends it was arbitrary and capricious for the judge to find the employee’s notice sufficient pursuant to G.L.c. 152, §§ 41 and 42. It also argues it was an error of law for the judge to adopt the medical examiner’s opinion because it was neither in evidence nor sufficient to establish causal relationship between the incapacity and his work as a tailor. The employee charges that the judge’s ruling to end § 35 benefits based on the G.L.c. 152, § 35E
presumption of ineligibility was contrary to law, arbitrary, and capricious. He further contends it was arbitrary and capricious for the judge to find the employee had transferable skills and therefore was not eligible for G.L.c. 152, § 34 total incapacity benefits.

We affirm the judge’s findings as to the timeliness of notice and claim. We find that the opinion of the medical expert the judge relied upon was properly in evidence and legally sufficient. We find error in the application of § 35E, and remand for further findings as to extent of incapacity.

Albert Kitmacher, the employee, worked as a tailor his entire career. (Dec. 2.) Except for four years of self-employment as a tailor from 1969 to 1973, he was employed by Besse Clark (“employer”) from 1951 to October 30, 1986. Id. The employee began developing aches and pain throughout his body in the 1960’s or 1970’s. Id. Around 1982 or 1983, he began developing pain in his hands, which he assumed was arthritis. (Dec. 2-3.) As the pain progressed, he found it harder and harder to do the fine, skilled work of a tailor until October 30, 1986 at the age of sixty-six he finally gave up and stopped working. (Dec. 3.) He began collecting full social security retirement benefits. (Dec. 3.) Except for three days in 1987 or 1988, he has not returned to work. (Dec. 6.)

The employee filed a claim for worker’s compensation on June 11, 1987. A prior judge filed a decision on November 29, 1989, which was appealed to the reviewing board, vacated, and returned for reassignment for de novo hearing. (Dec. 2.) See Kitmacher v.Besse Clarke, 8 Mass. Worker’s Comp. Rep. 159 (1994). That de novo hearing commenced on July 18, 1994. (Dec. 1.)

At hearing, the insurer raised, among other issues, liability, § 35E, proper notice and proper claim. (Dec. 1.) The judge found that the employee had met both the notice and claim requirements of the Act. (Dec. 3.) He found that the claim filed by the employee on June 11, 1987 was given within a year of the employee’s leaving work, and that there was no prejudice to the insurer since there was no particular incident to be investigated, but rather a long history of a deteriorating condition. (Dec. 3.) He found that in fact the insurer had the employee examined by their own medical expert in 1987 and relied upon that expert at the original hearing on the employee’s claim in 1989. (Dec. 3.)

The judge adopted the medical opinion of the insurer’s examiner, Dr. Cella, who examined the employee in 1987 and in 1989. (Dec. 4.) Dr. Cella opined that the pain in the employee’s hand was either due to nerve entrapment at either the elbow or wrist, or due to carpal tunnel problems, in any event aggravated by his job as a tailor. (Dec. 4-5.) Dr. Cella found the employee’s hand problems prevented the employee from work requiring repetitive motions of the hands or wrist, eliminating the possibility of being a tailor. (Dec. 5.) He opined the employee could work where he did not need to repetitively lift more than fifteen pounds with the right arm or twenty-five pounds maximum. Id.

The judge adopted Dr. Cella’s medical opinion and ordered the insurer to pay § 35 benefits. (Dec. 5, 7, 8.) The judge then ordered, pursuant to § 35E, that the employee’s partial incapacity benefits cease on February 23, 1988, the employee’s 68th birthday, finding that date was “a reasonable time to have the Section 35E presumption take effect.” (Dec. 6, 7.)

We have the case on cross-appeals. The insurer contends it was arbitrary and capricious for the judge to find the employee’s notice satisfactory pursuant to §§ 41 and 42. It alleges the employee did not comply with the notice requirement of § 41 because he did not state the correct “cause of injury” until seven years after he stopped working for the employer[1] , and did not meet his burden to show lack of prejudice to the insurer. (Insurer’s Brief, 7-8.) We find no merit in these contentions.

Pursuant to § 42, proper notice requires a written statement stating the time, place, and cause of injury “as soon as practicable after the happening thereof . . .” G.L.c. 152, § 41; see also G.L.c. 152, § 42.[2] Here the employee gave notice in writing and filed claim within one year, but did not accurately state the cause of his hand problems. Pursuant to G.L.c. 152, § 44, inaccuracies and want of notice are not fatal unless an intent to mislead is found. Section 44 states:

Such notice shall not be held invalid or insufficient by reason of any inaccuracy in stating the time, place or cause of the injury unless it is shown that it was the intention to mislead and the insurer was in fact misled thereby. Want of notice shall not bar proceedings, if it be shown that the insurer, insured or agent had knowledge of the injury, or if it is found that the insurer was not prejudiced by such want of notice.

G.L.c. 152, § 44. When notice of injury does not accurately state the cause of the incapacity, the defect is relevant only if the employee intended to mislead the insurer, and the insurer was in fact misled. See G.L.c. 152, §§ 44 and 49[3] . Here the judge found the employee believed his condition was due to arthritis. (Dec. 3.) There is no finding of intent to mislead. Moreover, the judge found the insurer had knowledge of the nature of the injury when their own medical examiner saw the employee in 1987. (Dec. 3.) He noted that the insurer relied on the opinion of that expert in the hearing that ensued in 1989, and had opportunity to investigate the employee’s claim at that time. (Dec. 3.) The judge set forth an adequate basis for his finding that as early as 1987 the insurer had actual knowledge of the basis of the employee’s claimed incapacity, and was not misled. While these factors obviate a need to show lack of prejudice, the judge further found the insurer was not prejudiced by the employee’s failure to state the correct cause of injury in the original notice to the insurer. (Dec. 3.) We affirm the judge’s findings as to notice and claim.

As its second basis of appeal, the insurer argues that as a matter of law, the administrative judge should not have adopted the medical examiner’s opinion because it was neither in evidence nor legally sufficient to establish casual relationship. The insurer argues that at the hearing before the first administrative judge, a medical opinion was solicited by a leading question, to which the insurer objected, and the first judge sustained. (Dep. Cella, 23; Insurer’s Brief, 11.) See (Decision filed Nov. 29, 1989, 7.) The insurer therefore argues there is no evidentiary support for an award of benefits by the second judge because the medical opinion is not in evidence. (Insurer’s Brief, 10.) In the alternative, the insurer argues that even if the medical opinion is in evidence, it is not legally sufficient to establish causal relationship. (Insurer’s Brief, 11.) The insurer contends that the medical opinion on causal relationship relied upon is speculative because the doctor could not state whether the employee suffered from carpal tunnel syndrome, or nerve entrapment at the wrist or elbow; and further, that the expert could not say whether the employee’s work as a tailor caused the medical problems.Id. We disagree.

The medical opinion that the employee’s work aggravated his condition is in evidence because the insurer did not raise an objection in the second hearing. The decision of the prior judge was vacated on appeal. See Kitmacher v. Besse Clark,
8 Mass. Workers’ Comp. Rep. 159, 160 (1994). At the hearing de novo, both parties agreed to admit the deposition of the medical examiner to the second judge. (Insurer’s Brief, 10.) The judge in the secon de novo hearing was not bound by the previous judge’s ruling. Therefore, without an objection by the insurer at the second hearing, we cannot review whether the decision to admit the testimony as evidence is error.

The medical opinion also sufficiently established a casual relationship between the tailoring work and the employee’s medical ailment. The doctor stated:

I would certainly feel comfortable that his work as a tailor contributed to this injury; that type of work a tailor does, repetitive hand and wrist motion can cause thickening of the tendons in the wrist, which makes them swell in size and narrows the space available for the nerve in the wrist, thereby making impingement more likely.

(Tr. 13, lines 12-18) (emphasis added). Although the medical examiner indicated reservation in making positive identification of the ailment, certainty as to exact diagnosis is not required. SeeAtamian’s Case, 265 Mass. 12 (1928), Adams’s Case, 339 Mass. 772
(1959). The adopted doctor did form a diagnosis of conditions in the alternative and did state that the condition was aggravated by the employee’s work as a tailor. The medical opinion was rendered with requisite certainty. See Hachadourian’s Case, 340 Mass. 81, 83, 86 (1959). We affirm the judge’s decision as to the issues raised by the insurer.

In his appeal, the employee charges it was contrary to law, arbitrary, and capricious for the judge to apply the § 35E presumption of ineligibility and terminate the employee’s benefits on February 23, 1988. We agree. Section 35E states in pertinent part:

Any employee who is at least sixty-five years of age and has been out of the labor force for a period of at least two years and is eligible for old age benefits pursuant to the federal social security act or eligible for benefits from a public or private pension which is paid in part or entirely by an employer shall not be entitled to benefits under section thirty-four or thirty-five unless such employee can establish that but for the injury, he or she would have remained active in the labor market. The presumption of non-entitlement to benefits created by this section shall not be overcome by the employee’s uncorroborated testimony, or that corroborated only by any of his family members, that but for the injury, such employee would have remained active in the labor market. . . .”

G.L.c. 152, § 35E (as amended by St. 1991, c. 398, § 66). The judge here found 1) that the employee had worked for a year beyond his sixty-fifth birthday, leaving work at age sixty-six only when pain from his industrial injury forced him to stop working, 2) that he had further attempted to work in 1987 or 1988[4] and 3) that “he would have continued to work if his hands had let him.” (Dec. 3, 6.) These findings of facts notwithstanding the employee’s testimony that he would have continued working, reflect that the employee had remained active in the labor force past the age of sixty-five and would have continued in employment but for the injury. See Harmon v. Harmon’s Paint Wallpaper,
8 Mass. Workers’ Comp. Rep. 432 (1994). The § 35E presumption thus does not apply to this employee because he has established as a matter of fact that “but for the injury he . . . would have remained active in the labor market” beyond the age of sixty-five.[5]

The employee also contends it was arbitrary and capricious for the administrative judge to find he had transferable skills and therefore was only partially disabled. The judge found the employee was not totally incapacitated because “[w]hile Mr. Kitmacher’s work history is limited to tailoring, and his formal education is also limited, he did run his own business for several years” and thus should have transferable skills for basic clerk operations or some minimum wage job. (Dec. 5.) The employee argues that when the employee ran his own business for four years, that business was as a tailor, work now foreclosed by his industrial injury, and thus is no basis for finding an earning capacity. He argues that there is no evidence as to what, if any, transferable skills the employee developed in his own tailoring shop. (Employee’s Brief, p. 15-16.) There is inadequate basis before us to determine whether his self-employment as a tailor afforded him transferable skills for non-trifling employment on the open labor market. See Scheffler’s Case, 419 Mass. 251, 256
(1994). Therefore, and in view of the judge’s finding of the “limited” nature of his education and training, we remand for further findings as to earning capacity.

We affirm the judge’s findings as to the sufficiency of notice and timely claim, and find no error in his adoption of the medical opinion of the insurer’s expert. We reverse the holding that the § 35E presumption of ineligibility applies. Finally, we remand the case for further findings as to extent of incapacity. So ordered.

________________________ Carolynn N. Fischel Administrative Law Judge
________________________ Sara Holmes Wilson Administrative Law Judge
________________________ Edward P. Kirby Administrative Law Judge

Filed: December 11, 1996