BOARD No. 051493-93Commonwealth of Massachusetts Department of Industrial Accidents
Filed: December 29, 1997
REVIEWING BOARD DECISION
(Judges Levine, Fischel and Wilson)
APPEARANCES
Michael J. Powell, Jr., Esq., for the employee.
Matthew F. King, Esq., for the insurer.
LEVINE, J.
The insurer appeals from the decision of the administrative judge in which the employee was awarded continuing workers’ compensation benefits. We recommit the decision to the administrative judge for further findings applying the relevant provisions of G.L.c. 152, § 1 (7A).
Robert C. McArthur was fifty-seven years old at the time of the hearing in this case. After graduating from high school, Mr. McArthur attended college for one year, where he studied drafting. He had been employed by Grossman’s for thirty years. He was a spray painter and sign installer. (Dec. 4.)
The insurer does not challenge the judge’s finding that on December 9, 1993, the employee sustained an industrial injury while installing cables at the roof/ceiling of a new store. (Dec. 4.) The work that day required that the employee’s neck be in a twisted position. Without warning, the employee’s neck locked in a cramped position and the employee experienced pain down the entire length of his left arm. As his neck loosened, the employee felt a burning pain in his left arm. During his lunch break, he felt his legs go numb. The employee completed the day and informed his employer of the incident the next day. He has not worked since. (Dec. 4.)
On December 16, 1993, the employee was seen by his attending physician, Bradford Selland, a neurosurgeon. Dr. Selland performed diagnostic testing including a CAT scan, MRI and myelogram. After medication proved unsuccessful, on January 26, 1994, Dr. Selland performed surgery on the employee’s cervical spine. Although the surgery alleviated the symptoms in the left arm, within a week of the surgery the employee had significant pain in his right arm. The employee underwent further diagnostic tests in February 1994; he also underwent a course of myotherapy with a physical therapist. (Dec. 4-5, 8.)
The employee filed a claim for workers’ compensation benefits which the insurer opposed. After a conference held pursuant to § 10A, an administrative judge ordered the insurer to pay on-going § 34 benefits beginning on December 9, 1993. The insurer timely appealed for a hearing de novo.
Dr. Paul S. Blachman, the § 11A impartial examiner, examined the employee on January 3, 1995. (Dec. 7.) Due to the complexity of the employee’s pre-existing cervical spondylosis and Parkinson’s disease, the administrative judge found the medical issues complex and allowed additional medical testimony. (Dec. 2, 5.) In addition to the report of the § 11A examiner, the medical evidence consisted of the depositions of Dr. Gilbert and Dr. Antkowiak.
Dr. Gilbert had examined the employee in July 1993, prior to the present industrial injury. At that time the employee was having some problems walking. The employee gave a three year history of neck pain, and limitation of motion of the head. In addition, in 1990, the employee had a month of severe radicular left arm pain, from which he recovered. Sometime in 1992, the employee’s legs felt a little numb. Dr. Gilbert reviewed radiology studies including a CAT scan and EMG, which showed some irritation of the nerves in both the back and neck. Dr. Gilbert ordered an MRI which demonstrated cervical spondylosis, C4-C6, and mild disc herniation at C4-5. The MRI indicated bony ridging encroaching upon the left paracentral aspect of the thecal sac and nerve root. When Dr. Gilbert examined the employee in October 1993, Dr. Gilbert did not consider the employee a surgical candidate. (Dec. 5-6.)
The administrative judge rejected the opinion of the § 11A examiner that the major cause of the employee’s present disability is the tremor and clumsiness of the right arm which appears to be a result of the Parkinson’s disease. The judge did adopt the opinions of Drs. Gilbert and Antkowiak that the employee had documented medical evidence of cervical spondylosis and cervical myelopathy prior to the December 1993 industrial injury.[1] (Dec. 8.) And the judge found that, although the employee was periodically symptomatic as a result of these impairments, he was able to perform his full and regular job without modification. The administrative judge adopted the opinion of Dr. Gilbert that the employee was not a surgical candidate prior to the December 9, 1993 incident and further adopted the opinions of both Dr. Gilbert and Dr. Antkowiak that the December 9, 1993 incident aggravated the employee’s pre-existing (spondylosis and myelopathy) conditions and that the cervical surgery performed by Dr. Selland was reasonable. (Dec. 8-9.)
The administrative judge also adopted the opinions of Dr. Gilbert and Dr. Antkowiak that the onset of symptoms on the right upper extremity arose out of the surgery and that the employee’s Parkinson’s disease was not causally related to his employment. (Dec. 9.) The judge adopted both Dr. Gilbert’s opinion that the employee was totally disabled from returning to his regular job and Dr. Antkowiak’s opinion disabling the employee from jobs which would require relatively repeated movement of his neck, heavy lifting, repeated lifting of objects weighing ten to twenty pounds, as well as consistent lifting of objects under ten pounds. (Dec. 10.)
The administrative judge found that, based on the employee’s age, training and education, he was temporarily totally incapacitated from earning wages. Accordingly, the administrative judge awarded § 34 benefits from December 9, 1993 and continuing. The decision also awarded § 30 benefits, including coverage for the January 1994 surgery. (Dec. 10-11.)
We agree with the insurer that the administrative judge failed to apply the standard of causation required by G.L.c. 152, § 1 (7A), and therefore the case must be recommitted. The pertinent language of the statute, added to G.L.c. 152, by St. 1991, c. 398, § 14, reads as follows:
If a compensable injury or disease combines with a pre-existing condition, which resulted from an injury or disease not compensable under this chapter, to cause or prolong disability or a need for treatment, the resultant condition shall be compensable only to the extent such compensable injury or disease remains a major but not necessarily predominant cause of disability or need for treatment.
It is clear that this standard of causation applies to the December 1993 “combination” injury. Rather than applying this standard, the administrative judge cited Long’s Case,337 Mass. 517, 521 (1958), for the proposition that a disabling increase in symptoms resulting in the employee’s stopping work or receiving medical care constitutes a compensable injury even though there is no change in the underlying pathology. (Dec. 9.) But this pre 1991, “as is” causation standard no longer applies to a case such as this one where an injury at work combines with a pre-existing condition which is not compensable under G.L.c. 152. Furthermore, the judge’s decision does not mention the § 1 (7A) major cause standard, nor is there anything in the decision to indicate that the judge was actually applying that governing legal standard. See Ciufo v. Advanced Drainage Systems,
11 Mass. Workers’ Comp. Rep. ___ (October 1, 1997). In this case, the judge should have undertaken the analysis as set out in Robles v.Riverside Mgmt., Inc., 10 Mass. Workers’ Comp. Rep. 191, 195-197 (1996).[2] Because the judge did not apply § 1 (7A), the case is appropriate for a recommittal to him for findings of fact in light of the applicability of that section.[3]
We remand the case for application of § 1 (7A) and for findings thereon.
So ordered.
_____________________________ Frederick E. Levine Administrative Law Judge
_____________________________ Carolyn N. Fischel Administrative Law Judge
_____________________________ Sara Holmes Wilson Administrative Law Judge
Filed: December 29, 1997