BOARD NO. 014390-94Commonwealth of Massachusetts Department of Industrial Accidents
Filed: September 13, 1996
REVIEWING BOARD DECISION
(Judges Smith, Maze-Rothstein, and McCarthy)
APPEARANCES
JoAnn D. Walter, Esquire, for the employee
Andrew P. Saltis, Esquire, for the insurer
SMITH, J.
The employee appeals from a decision denying his initial liability claim for compensation. Finding the decision internally inconsistent and therefore inadequate for proper appellate review, we find it appropriate to remand for further findings of fact and conclusions of law. G.L.c. 152, § 11C.
The employee, Harold Lee, filed a claim for § 34 temporary, total incapacity benefits from May 13, 1994 to the present and continuing. After a § 10A conference, pursuant to G.L.c. 152, § 10A(2)(a), the judge issued an order denying that weekly compensation or other benefits be paid. Lee timely appealed for a § 11 hearing, claiming a closed period of total incapacity from May 13, 1994 until August 17, 1994. (Tr. 3.) Both parties agreed to “opt out” of the impartial process outlined by G.L.c. 152, § 11A, deciding instead to introduce their own medical records. See 452 CMR 1.10 (7).[1]
At hearing, the insurer raised as issues liability (i.e. that no industrial injury had occurred), disability and extent thereof, causal relationship, entitlement to medical benefits and employment status. The employee was the only witness to testify. All medical records were timely produced and entered into evidence by agreement. After hearing, the judge rendered a decision denying the employee’s claim.
It is unclear from the decision whether the administrative judge found a work related injury. The judge made a subsidiary finding that a “pipe stand recoiled and struck the employee in the eye causing him to fall backwards and allegedly hurting his back and his head . . . by evening the area around his eye allegedly
had begun to turn black and blue and by bedtime his vision allegedly
had become blurry and he allegedly was experiencing headaches. . . . He returned to the emergency room later in day of May 13, 1994. He was given a patch for his eye, along with some gauze and tape, ointment and medication . . . He treated with Dr. Post until September 1994.” (Dec. 5, emphasis supplied.)
In her general findings, the judge credited the employee’s testimony that he experienced some residual effects from being struck in the eye but found no medical evidence to suggest the injury was as severe as the employee claimed. (Dec. 8.) The judge found that “all the physicians in this case diagnosed the Claimant with a left corneal abrasion without more.” (Dec. 9.) However, she found that the “reports were not persuasive that the Claimant even suffered an injury at all.” Id. She concluded that the employee “failed to meet his burden of proving that he sustained an injury arising out of and in the course of his employment which resulted in a disability.” Id. She further concluded that the employee was not entitled to payment of medical expenses “[b]ecause the physicians did not causally relate the Claimant’s abrasion to an incident at work within a reasonable degree of medical certainty.” Id.
On appeal, the employee argues that the judge erred in denying his claim after finding that a personal injury occurred. We are unable to address this argument on the merits without further findings of fact.
The employee correctly asserts that an injured worker is entitled to adequate and reasonable medical services to treat the injury whether or not the injury causes wage loss. Tigano v. AcmeBoot Co., 8 Mass. Workers’ Comp. Rep. 145, 148 (1994); Brown v.Strathmore Paper Co., 9 Mass. Workers’ Comp. Rep. 191, 196 (1995). However, from the existing decision, we are unable to determine whether or not the employee did sustain an injury arising out of and in the course of his employment. It is not clear whether the judge is finding that the employee sustained an injury but that it did not cause his absence from work, or whether the judge is finding that the employee did not meet his burden of proving that he sustained an injury at all.
Furthermore, the decision may indicate an erroneous disregard of the medical evidence. There is no requirement that a medical opinion contain the express words “within a reasonable degree of medical certainty.” The judge has the authority to find causation where the medical and lay evidence which the judge believes persuades the judge that the existence of a causal connection is more probable than not. Bedugnis v. Paul McGuire Chevrolet,
9 Mass. Workers’ Comp. Rep. 801, 803 (1995). It would be arbitrary and capricious, and contrary to law, to reject medical testimony solely because it lacks the specific mantra of “reasonable medical certainty.”
Because we cannot be assured that the correct legal principles have been applied to the facts which could properly be found, it is appropriate to remand for further findings of fact. See G.L.c. 152, § 11C; Reis v. Anchor Motor Freight Inc.,
9 Mass. Workers’ Comp. Rep. 82, 85 (1995). On remand, the judge should address the following issues: 1) whether an event occurred at work on May 12, 1994; 2) whether the event caused injury; if so, what was the injury and the diagnosis; 3) whether the diagnosed condition required medical treatment; if so, what, when, where and by whom; 4) whether the medical treatment rendered was reasonable and necessary[2] ; 5) whether the injury affected the employee’s ability to work; if so, what were the impairments and functional limitations caused by the injury; 6) whether and when the employee had no capacity to work because of the injury; 7) if the judge finds a partial physical ability to labor, then the judge should analyze the extent of incapacity by considering the employee’s physical impairment and functional limitations together with his age, education, experience and other factors as set forth inScheffler’s Case, 419 Mass. 251, 255 (1994). At each change in the employee’s medical condition found, the judge should reassess the extent of incapacity. Dawson v. New England Patriots,
9 Mass. Workers’ Comp. Rep. 675, 677 (1995).
In conclusion, because the decision is flawed, we vacate it and remand for further findings of fact. In light of the passage of time during the pendency of the appeal, if either party alleges a change in medical condition or vocational skills since the date the record closed, or the judge finds that justice so requires, additional evidence may be taken prior to the entry of the remand decision.
So ordered. ___________________________ Suzanne E.K. Smith Administrative Law Judge
___________________________ Susan Maze-Rothstein Administrative Law Judge
___________________________ William A. McCarthy Administrative Law Judge
Filed: September 13, 1996
In claims where initial liability has not been established, subject to the provisions of M.G.L.c. 152, § 11A(2) and 452 CMR 1.02, the parties may agree in writing at the time of conference that an impartial physician is not required. If such agreement is filed with the administrative judge the filing fee pursuant to M.G.L.c. 152, § 11A(2) shall not be required.