Summary
In Mutcherson, we held that an uncontroverted medical opinion causally relating an employee's second period of medical disability to his work injury could not be rejected unless the aggravating non-work activity had been more than negligently performed.
Summary of this case from Gomes v. Bristol County House of Correction, NoOpinion
BOARD No. 20716-92
Filed: July 15, 1997
REVIEWING BOARD DECISION
(Judges Maze-Rothstein, McCarthy and Smith)
APPEARANCES
Chester Tennyson, Esq., for the employee.
Douglas Boyd, Esq., for the insurer.
The employee's appeal presents two questions: 1) did the knee injury at work cause or contribute to the subsequent injury to the same knee while playing basketball two weeks later; and 2) did the basketball incident intervene to sever the causal chain?
Raye Mutcherson, was a boilermaker. (Dec. 2.) While performing his duties on May 5, 1992, he attempted to align or straighten a beam by sledge hammering it with a metal wedge. Due to the force of the impact, the wedge "shot out" and struck the employee's right knee. (Dec. 3; Tr. 7-8.) He fell backward stricken with sudden and severe knee pain. (Dec. 3.) He was taken to the on-site first aid center where his knee was treated with ice. Id. Once the pain and swelling subsided, he returned to his job but then left without doing further work. (Dec. 3; Tr. 10.)
The next day, the employee was assigned to a light duty welding job. Id. His knee, however, remained swollen and continued to feel "tight." (Dec. 3; Tr. 11.) Two weeks later, on May 19, 1992, he went after work to the Springfield Park with his son to play some basketball and to exercise his knee. (Dec. 3; Tr. 12.) While waiting for another game to conclude, he shot a few baskets to loosen up. (Dec. 3.) When the other game ended, he and some others initiated a game of five-on-five. (Id.) Moments into the game, the employee jumped for a rebound and felt intense pain in the affected knee. (Dec. 3; Tr. 13.) He had dislocated his knee and was taken to the emergency room at Baystate Medical Center where Dr. Sklar performed emergency knee surgery. Id.
The employee filed for § 34 temporary total incapacity benefits for the aftermath of the May 19, 1992 incident, claiming it was causally related to his prior May 5, 1992 work injury. The insurer denied liability and contested causality and incapacity. After a § 10A conference, the claim was denied. The employee appealed to a hearing de novo.
Because the parties had agreed to opt out of the § 11A medical procedures, the employee's expert report and deposition comprised the uncontroverted medical evidence. (Dec. 4-6.); see 452 Code. Mass. Regs. 1.10 (7). Doctor Sklar treated the employee from the date of the surgery to February 1993. See (Dr. Sklar Dep., 8.) In his report, the physician diagnosed a ruptured patella tendon in the right knee and opined that "it is certainly possible that being struck on the front of the knee close to the area of rupture somewhat weakened or predisposed [the employee] to having the tendon rupture . . . ." (Dec. 6; Dr. Sklar Rep., 1-2.) Later, the doctor was deposed and testified with reasonable medical certainty that the May 5, 1992 work injury "weakened [the employee's] knee, and when he went out and he tried to run or jump on the knee, . . . the ligament ruptured." (Dr. Sklar Dep., 8.)
Dr. Mader, who also testified, did not feel qualified to render a causation opinion, but did not disagree with Dr. Sklar. (Mader Dep. 11-13, 14.) As Dr. Mader's testimony is of no consequence, it will not be referred to again.
452 Code. Mass. Regs 1.10 (7) reads in pertinent part:
In claims where initial liability has not been established, . . . the parties may agree in writing at the time of conference that an impartial physician is not required.
On cross-examination, the doctor acknowledged that he did not learn of the employee's prior work injury until several weeks after his initial diagnosis. (Dec. 5; Dr. Sklar Dep., 17-18.) And although during surgery the doctor noted some degenerative changes in the thirty-seven year old employee's knee, he nevertheless "continued to believe that there was a connection between the [May 5, 1992] injury at work and [the employee's] rupturing the tendon afterwards [on May 19, 1992]. (Dec. 6; Dr. Sklar Dep., 16-17.)
The judge found Dr. Sklar's testimony on causation "unpersuasive." (Dec. 7.) With nothing more than that as an explanation, the judge found that although the employee did sustain a work injury on May 5, 1992, he failed to prove "by a preponderance of the evidence that the work injury caused or contributed to the patella tendon rupture of May 19, 1992 and the ensuing period of disability." Id. The claim for benefits was therefore denied. We have the employee's appeal of this decision.
Mr. Mutcherson appeals on two grounds. First, he asserts it was error to reject the uncontradicted medical evidence without relevant findings. Second, he argues that if, sub silencio, the judge rejected his claim on the basis that the basketball incident was an intervening event, then that rejection is without support in the evidence. We agree with both assertions.
A hearing decision must set forth findings in a manner enabling this reviewing board to determine whether correct standards of law have been applied to the facts that could properly be found. Praetz v. Mutual Factory Eng'g. Research, 7 Mass. Workers' Comp. Rep. 45, 46-47 (1993). By statute a decision must have specific findings based on the evidence and a brief statement of the reasons for each such finding. G.L.c. 152, § 11B. It should also state the foundation and rationale for progressing from those subsidiary findings to the ultimate conclusion. See Ross v. New England Telephone, 7 Mass. Workers' Comp. 332, 335 (1993). Testimonial recitals will not suffice to support a decision on a material issue. See Crowell v. New Penn. Motor Express, 7 Mass. Workers' Comp. Rep. 3, 4-5 (1993).
The proper treatment of uncontroverted medical evidence was addressed in Galloway's Case, 354 Mass. 427, 431 (1968) where the court stated, "questions of causation and length of disability were peculiarly a matter for expert medical testimony which was given in this case by a qualified expert in orthopedics. . . . The finder of fact must rely on this uncontradicted testimony which had to do with a matter beyond the common knowledge and experience of a layman." Id. See also Woolfall's Case, 13 Mass. App. Ct. 1070, 1071 (1982). The same is true here.
Doctor Sklar's report and testimony were the only medical evidence considered on the issue of causation. See (Dec. 6.) After reciting various aspects of the doctor's report and testimony and without making findings therefrom, the judge merely concluded that the causal relationship opinion was "unpersuasive" as a basis for finding that the employee failed to meet his burden as to the cause of his incapacity. (Dec. 7.) This falls short of providing an explanation for rejecting an opinion the judge was otherwise obliged to rely upon. Arrived at in this way, the decision cannot stand.
Because the reasons for rejecting the medical opinion of causal connection may have to do with the basketball incident, we turn briefly to the significance of that event vis-a-vis the causal chain that began with the May 5, 1992 knee injury at work. The consequences of a work injury are the insurer's responsibility, provided the chain of causation is not broken by an intervention sufficient to make the new or related injury noncompensable. Gulzynski v. Granada Hosp. Group, 7 Mass. Worker's Comp. Rep. 151, 152 (1993) [citing L. Locke, Workmen's Compensation § 222 (2d. ed. 1981)]; Gulzynski v. Granada Hosp. Group, 9 Mass. Workers' Comp. Rep. 449 (1995) (affirming favorable finding on unbroken causal chain after recommittal). When a non-work activity (i.e. basketball) causes a recurrence or aggravation of a work injury, so long as the activity was normal and not negligently performed, the causal chain between the original and subsequent injury remains intact. Id. at 153, citingTwomey v. Greater Lawrence Visiting Nurses Assoc., 5 Mass. Workers' Comp. Rep. 156 (1991); Taylor v. Congeneration Mgmt. Co., 9 Mass. Workers' Comp. Rep. 392, 394 (1995). Simple negligence will not weaken a causal chain where claimant's conduct involves necessary or reasonable activity that would not have been undertaken in the manner it was but for the original injury. Gulzynski, I supra at 153. Only gross negligence or actual misconduct in performing the non-work activity will serve to uncouple its links. Id. If the judge thought the doctor's opinion on causation could be rejected due to the basketball event, then further findings were necessary. However, the decision is silent in that regard and so not susceptible to appellate review.
We cannot determine on what basis the judge decided that the employee failed to meet his burden of proving causation. The employee is entitled to a decision articulating the judge's reasoning process with sufficient detail to afford proper review. See Praetz, supra at 46-47.
Because § 11C expressly permits it, we determine that it is appropriate to recommit this case for further findings consistent with this opinion. Of course, given the employee's injury date, to the extent that a pre-existing knee condition combined with the work injury to cause or prolong medical disability the provisions of § 1 (7A) would apply. See Robles v. Riverside Mgmt. Inc., 10 Mass. Workers' Comp. Rep. 191 (1996).
So ordered.
_____________________________ Susan Maze-Rothstein Administrative Law Judge
_____________________________ William A. McCarthy Filed: July 15, 1997 Administrative Law Judge
Mutcherson suffered a tendon rupture during vigorous activity in a basketball game outside of work, weeks after a work-related knee contusion. The judge's factual finding that he was unpersuaded of a causal connection was warranted, consistent with law, and amply supported by subsidiary factual findings. The case has been fully and fairly litigated and the litigation should come to an end.
The power to remand for further findings of fact is "intended to safeguard the function of the reviewing court, and not to regulate the precise form of the board's decision".McElroy's Case, 397 Mass. 743, 746 (1986). The judge's decision provides adequate assurance that the correct rules of law have been applied. See Chouinard's Case, 325 Mass. 152, 154 (1949), citing Demetre's Case, 322 Mass. 95, 96-97 (1947); Ogonowsky's Case, 338 Mass. 468, 472 (1959).
The judge made specific factual findings which contain the reasons he found Dr. Sklar's opinion unpersuasive. He wrote: "The employee . . . had run up and down the court a couple of times before he jumped for a rebound and felt an intense pain in his right knee. As he landed his knee gave way and he fell on the court." (Dec. 3; see also Dec. 4.) When he went to the hospital, he did not provide his doctor with a history of the work injury upon initial consultation. (Dec. 5.) At the time of the operation, Dr. Sklar observed the effects of a prior medial surgery. (Dec. 5; see Dep. 11.) He also "observed a degeneration of the patellar tendon." (Dec. 5; see Dep. 11-12.) Dr. Sklar "described the degeneration as a natural consequence of aging as well as of something which may have damaged the tendon thereby causing some loss of its integrity." (Id.; see Dep. 12.) The doctor thought the tendon degeneration was the result of poor vascularity. (Id.; see Dep. 12.) The doctor "indicated a rupture of the tendon would occur as a result of excessive stress having been applied to the tendon." (Id.; see Dep. 13-14.) Moreover, the doctor initially opined only that causation was possible, not probable. (Dec. 6.)
The judge did not find that Mutcherson's knee remained swollen between the work injury and the basketball game. See (Dec. 3.)
When the doctor was asked to assume the facts testified to by the employee: "at the time he felt the pain in his knee he had just jumped for a rebound and was in the process of coming down when he felt the pain", the doctor opined that those facts would be consistent with a typical cause of a ruptured tendon, occurring in people as they age and not as the result of any prior trauma, but related to some preexisting tendon degeneration. (Dep. 14.) This type of medical problem occurs typically in older people. (Dep. 15.)
The doctor testified about the degeneration found at the time of surgery:
I don't have a direct memory of the appearance at that point. I just — I know what I would call that, that there could be some degeneration in the tendon meaning some calcification or something that made the tendon look like it was damaged or had undergone some loss of its integrity." (Dep. 12.)
Not having had a history of trauma, the doctor assumed "that this was one of those run-of-the-mill ruptures that you occasionally do see in some guy." (Dep. 13.)
Certainly, based upon these subsidiary facts, a reasonable judge could rationally believe that is was just as likely that the tendon rupture occurred because the employee, running and jumping in a basketball game, exerted force on his tendon which had previously degenerated in the course of aging. The judge could rationally infer from the lack of history provided the doctor that Mutcherson had not experienced continuous troubling knee symptoms between the work injury and the basketball game. Moreover, the fact that the doctor had first rendered a speculative causation opinion was competent to diminish the credit which the judge had to assign the later opinion of probability. See Perangelo's Case, 277 Mass. 59, 64 (1931);Buck's Case, 342 Mass. 766, 770 (1961).
The judge's general conclusion, when read fairly with his subsidiary findings, raises no concern that he committed legal error. The judge merely refused to accept the fallacious argument of post hoc, ergo prompter hoc. The doctor's testimony specified by the judge, taken as a whole, did not meet the standard of certainty required to compel a conclusion that the work injury was "a major cause" of the tendon rupture as G.L.c. 152, § 1 (7A) requires. See, e.g. Flaherty's Case, 316 Mass. 719 (1944).
If one bears in mind where the burden of proof lies, and the judge's exclusive prerogative to decide the probative value of the evidence and to reject the opinion of the medical expert which he found to be equivocal, then the validity of the judge's conclusion of nonpersuasion shines through. See Blanchette v. Contributory Retirement Appeal Board, 20 Mass. App. Ct. 479, 487 (1985). The employee has had a fair opportunity to present his case and failed to meet his burden of proof. There is no appropriate reason to recommit the decision. See Flaherty's Case, 316 Mass. at 722-723. See G.L.c. 152, § 11C. However, as the case is not being affirmed, I comment on the required further findings.
The employee has the burden of showing that his ruptured tendon resulted from his work injury and not from an independent intervening cause. Tetrault's Case, 278 Mass. 447-448 (1932). "It is not material that the intervening voluntary act did not amount to `serious and wilful misconduct.' G.L.c. 152, § 27."Panagotopulos' Case, 276 Mass. 600, 608 (1931). The question is not whether the employee's actions at the time of the tendon rupture were negligent, but whether the tendon rupture was in fact a natural and proximate result of the original work injury. "The proximate cause is that which in a continuous sequence,unbroken by any new cause, produces an event and without which the event would not have occurred. It may be assisted or accelerated by other incidental and ancillary matters, but, if it continues as an operative and potent factor, the chain of causation is not broken." Wallace v. Ludwig, 292 Mass. 251, 254 (1935) (emphasis supplied).
Although Wallace is a tort case, the question of causation is treated the same regardless of whether liability rests on negligence, workers' compensation or railroad liability. Id. at 254-255.
The employee must establish the nature and extent of the damage to his body caused by the work trauma and that such damage directly and proximately contributed to his tendon rupture. If he persuades the judge that the required causal connection exists, additional findings become necessary regarding the extent of contribution of the various causal factors: the employee's preexisting degenerative knee condition, the work injury, and the basketball activity. See G.L.c. 152, § 1 (7A).
_____________________________ Suzanne E. K. Smith Administrative Law Judge