BOARD No. 02311393Commonwealth of Massachusetts Department of Industrial Accidents
Filed: April 29, 1996
REVIEWING BOARD DECISION
(Judges Maze-Rothstein, Smith and Kirby)
APPEARANCES
Thomas H. O’Neill, Esq., for the employee
Peter J. Moran, Esq., for the insurer
MAZE-ROTHSTEIN, J.
We have the insurer’s appeal from a decision awarding § 34 temporary total incapacity benefits for a chronic pain condition, namely fibromyalgia. The insurer argues that the only expert medical opinion, adduced pursuant to G.L.c. 152, § 11A, lacked the necessary certitude to causally relate the employee’s medical disability to the alleged repetitive work injury. We disagree with this assertion. However, finding the decision inadequate for appellate review on the issue of application of the appropriate definition of an industrial accident, we recommit this case for further findings. G.L.c. 152, § 11C.
As found by the judge, the employee worked for ten years processing medical claims, which required performance of computer data entry, extensive filing and constant phone usage. On March 4, 1993 she awoke with a numb tingling sensation running down both arms. The employee continued to work for the next few months, but attempted to curtail her pain with frequent breaks and the use of braces, splints, a lumbar support and ice packs. Undeterred, her symptoms worsened and spread. By June 28, 1993, she could no longer work due to pain. At some point in September or October of 1993, the pain had gone down to her legs as well. The employee had no prior history of chronic pain. (Dec. 2-3.)
The employee filed a workers’ compensation claim, and was awarded § 34 temporary total incapacity benefits by a conference order issued on March 1, 1994. Aggrieved, the insurer appealed to a hearing de novo. (Dec. 2.) At the hearing the employee, and two of her supervisors, attested to her complaints of pain at work. By that time, the employee’s pain had spread throughout her body. The judge “strongly” credited the employee’s testimony regarding the extent and unrelenting duration of her pain. (Dec. 3, 5.)
Medical evidence was introduced pursuant to G.L.c. 152, § 11A. The § 11A physician, a rheumatologist, made two diagnoses: cervical osteoarthritis and fibromyalgia. While he did not relate the osteoarthritis to the work activities, he did believe the fibromyalgia had been aggravated by the employee’s repetitive work. Moreover, although he felt the initial cause of that the theretofore pre-existing but dormant disorder was impossible to determine, he reasoned that since the work triggered the employee’s pain symptoms in 1993, it was “entirely possible” that her symptoms at the time of his examination on May 18, 1994 were still causally related to her employment. (Dec. 3-5.)
The judge concluded, based on the § 11A opinion, that the employee had suffered an aggravation of fibromyalgia at work. He also concluded that the employee’s present total incapacity was causally related to that aggravation, since the work-related fibromyalgia had not yet subsided. He grounded this finding by crediting the employee’s testimony and adopting the medical opinion. The judge awarded the employee ongoing § 34 incapacity and § 30 medical benefits. (Dec. 5-6.)
The insurer asks us to reverse the judge’s decision in toto, but actually argues more narrowly. It asserts that the employee failed to sustain her burden of proof that her industrial injury remains causally related to her present incapacity, because the medical evidence merely stated that causal relation was “possible.” (Insurer’s Brief, 7.)
Although the insurer does not directly argue that the judge failed to apply the requisite standard to evaluate the employee’s post-1991 industrial injury, which involves the aggravation of a pre-existing non-compensable medical condition, the judge was nonetheless required to answer the contention regarding whether the industrial injury “remains” related in the context of the applicable law. See G.L.c. 152, § 11B.
General Laws c. 152, § 1(7A), as amended by St. 1991, c. 398, § 14, and made effective December 23, 1991, provides:
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 remains a major but not necessarily predominant cause of disability or need for treatment. (Emphasis added).
The medical evidence in the case, could support a variety of outcomes depending on how the judge views it and the remaining nonmedical evidence in light of the correct legal standard. (Dec. 4-6.) Unfortunately, the decision gives no hint as to whether the correct standard was applied. Thus, we are constrained to recommit this case for application of § 1(7A) as most recently enacted. See Robles v. RiversideManagement Inc., 10 Mass. Worker’s Comp. Rep. ___ (March ___, 1996) (for analysis to be applied). Given the intricacies of the 1991 amendment to § 1(7A) as discussed in Robles, supra, without a clear response to whether the facts of this case meet its requirements we have an insufficient basis upon which to consider the insurer’s appeal. Praetz v. Factory MutualEngineering Research, 7 Mass. Workers’ Comp. Rep. 45, 46-47 (1993).
We add that we are unpersuaded by the insurer’s arguments on the issue of medical certitude. See Josi’s Case, 324 Mass. 415 (1945); Bedugnis v.Paul McGuire Chevrolet, 9 Mass. Workers’ Comp. Rep. ___ (December 29, 1995), (decision affirmed in which judge found causal relation based on a medical opinion that the industrial injury “quite possibly” was the cause of the employee’s incapacity).
For the foregoing reasons we recommit the case to the administrative judge for further findings consistent herewith. On remand if the judge finds the § 11A report inadequate to address the § 1(7A) issues, he may allow additional medical evidence. See Robles, supra.
_________________________ Susan Maze-Rothstein Administrative Law Judge
_________________________ Edward P. Kirby Administrative Law Judge
_________________________ Suzanne E.K. Smith Administrative Law Judge
Filed: April 29, 1996