Opinion
BOARD No.: 08838289
Filed: August 3, 1998
REVIEWING BOARD DECISION
(Judges McCarthy, Maze-Rothstein and Smith)
APPEARANCES
Richard Patterson, Esq., for the employee.
Kevin M. Carroll, Esq., for the insurer.
This is an appeal by the employee from the denial after hearing of a claim for weekly incapacity benefits together with payment of reasonable medical expenses. Mr. Perkins claims incapacity from asthmatic bronchitis contracted at work.
Pertinent to our decision are the following facts found by the hearing judge.
In the summer of 1989, the employee went to Lincoln, Rhode Island, to work on the general cleanup of Collyer Wire Company. This was a four-hundred eighty thousand square foot building. The employee's duties included scraping black material from floors using a fork truck; dismantling desks and putting them in dumpsters. While the employee worked at this location, he came into contact with foreign substances on several occasions. The first week he was there he had coughing attacks. Two or three times per day for three weeks the employee went in and out of a certain room full of white dust. After three weeks, a worker wearing a full respiratory suit instructed the employee not to go through this particular room. Prior thereto, he had come into contact with the white dust which was stirred up by the truck he was driving. He experienced difficulty breathing when this occurred. The employee did not know what the white dust was. People were removing chemicals from the room; the employee did not know what the chemicals were.
Following that incident, his supervisor told the employee to break up certain furniture or desks which were located about ten feet from some barrels. After he had been dismantling these desks for several days, another worker from a chemical company appeared dressed in a full respirator suit and removed liquid from the barrels. The employee was instructed by the worker in the respiratory suit not to be in this area. Around that time, the employee had an uncontrolled coughing attack.
On another occasion the employee may have come into contact with acid that may have spilled from an acid bath. At that time, he felt a burning in his nose.
In another incident, the employee had scraped black matter from a floor. Inspectors came and the employee was required to further scrape this matter. He felt burning in his nose.
In general, the employee worked in a very dusty atmosphere during the period he worked at the Collyer Wire Company in the clean-up job. Generally, the employee did not wear protective equipment, and he did not wear a mask over his face.
Although the employee had experienced some coughing while he worked at the General Electric plant, it was only during his employment at the Collyer Wiring Company plant that he suffered severe symptoms. His coughing attacks were so severe that, on his way home to Massachusetts from Rhode Island after work, the employee had to pull off the road and stop. In addition, he constantly had a runny nose and congestion, as well as coughing.
On August 18, 1989, the employee presented to the Atlanticare Hospital because of severe coughing. He was seen at Atlanticare several times thereafter, and on September 14, 1989, he was given a note which stated that he could not work in areas with inhalants. Shortly after he gave this note to his boss, the employee left the job.
(Dec. 5-7.)
Perkins came under the care of Dr. Bimal P. Jain, an internist with a sub-specialty in pulmonary disease. In a December 28 1992 letter, Dr. Jain stated that it was his opinion that the employee's asthma is "more likely than not caused by his exposure to chemicals at work." (Dec. 8; Jain Dep. Ex. 6.)
When in the course of his deposition, Dr. Jain was shown a list of chemicals said to be present at Collyer. The doctor conceded that he was not too familiar with most of the chemicals. Dr. Jain "could not identify a specific entity among the chemicals that he could say was an agent causing specific occupational asthma." (Dec. 8.) Neither was there any testimony identifying the precise chemicals to which the employee was exposed. (Dec. 8 n. 1.) Nevertheless, "it was his [Dr. Jain's] opinion that the employee was exposed to strong chemicals and acids which damaged his bronchial tubes in a nonspecific manner and initiated the onset of asthmatic bronchitis." (Dec. 9.)
In coming to grips with the critical causal relationship question, the judge reasoned that,
Despite Dr. Jain's opinion, I am constrained to find that his opinion is insufficient to warrant a finding in favor of the employee. This is because there is no evidence as to just what chemicals the employee was exposed. "The employee failed to present any expert medical testimony that would establish by a preponderance of the evidence that [his] illness and disability were causally related to any specific irritant at the workplace." Leveille v. Spectran Incorporated, 5 Mass. Workers' Comp. Rep. 83, 85 (1991).
The employee testified, and I found, that he was exposed to foreign substances, some of which appear to have been chemicals. The employee apparently was also exposed to asbestos at the subject workplace. Asbestos was not on the aforesaid list presented to Dr. Jain; nor is it alleged to be involved in the employee's asthmatic condition. However, there was no evidence that he was exposed to the chemicals which were on the list presented to Dr. Jain at his deposition. The employee was working in a very large building. The chemicals on the subject list could have been located anywhere in the building, including in areas where the employee did not go. Furthermore, even if it is perhaps fair to infer that the employee was exposed to one or more of those chemicals, Dr. Jain did not testify that exposure to any of these chemicals would suffice to be the initiating agent. Dr. Jain simply testified that exposure to the chemicals on the list could initiate the asthma. Indeed, Dr. Jain testified that he was not too familiar with most of the chemicals on the list. Thus Dr. Jain was not competent to testify that the employee was exposed to "strong" chemicals and acids because Dr. Jain did not know which chemicals the employee was in fact exposed to and because Dr. Jain was not too familiar with most of the chemicals on the list. Thus it cannot be said that all the chemicals on the list were "strong." It is true that the employee was exposed to substances which apparently caused other workers to wear respiratory suits. But that fact alone would not seem to warrant an inference that those substances initiated the asthma, even though the employee had symptoms contemporaneous with his exposure to those substances. We do not know what these substances were or what dangers they posed.
Had Dr. Jain testified that exposure to dust and fumes generally would be sufficient to initiate the asthma, then the employee would have satisfied his burden of proof. Instead, Dr. Jain testified that chemicals and acids were initiating agents. Since there is no evidence as to which chemicals and acids the employee was exposed, and since Dr. Jain did not testify that exposure to any chemicals was sufficient, the employee has not satisfied his burden of proof.
(Dec. 9, 10.)
When he concluded that the employee failed to satisfy his burden we understand the judge to mean that, as a matter of law, the record before him would not support a finding of causal relationship. Because we believe that the judge applied the wrong standard, we reverse the finding.
Since earliest times, the words "personal injury" have never been given a narrow or restrictive meaning under Massachusetts law, but rather a comprehensive and inclusive definition. Hurle's Case, 217 Mass. 223, 225-227 (1914). See St. 1911, c. 751 (Workers' Compensation Act, G.L.c. 152, enacted in Massachusetts). The broad construction of the term comprehends a wide range of physical or mental harms, as well as occupational diseases connected to a condition of the employment, which are simply treated as all other injuries. Hurle's Case, 217 Mass. at 225-227; see 3 A. Larson, Workmen's Compensation § 41. 20, § 41.33 (1997 Supp.); L. Locke, Workmen's Compensation § 174, at 180-182 (2d ed. 1981) and cases cited. Indeed, Massachusetts, along with California and the Federal Employers Act, were the first jurisdictions to give general inclusion within the term "personal injury" to occupational diseases. A. Larson, supra at § 41.00, 41.10, 41.20 and 41.32.
In Massachusetts, a personal injury is defined as "[w]hatever lesion or change in any part of the system produces harm or pain or a lessened facility of the natural use of any bodily activity or capability." Burns's Case, 218 Mass. 8, 12 (1914). See Johnson's Case, 217 Mass. 388, 390 (1914); L. Locke,supra at § 174, and cases cited. The employee's burden of proof includes proving by a fair preponderance of the evidence the existence of a causal relationship between a disability and an industrial injury. Sevigny's Case, 337 Mass. 747, 749 (1958). The medical condition at issue must be shown to have been caused by an injury in the workplace, arising out of an incident or series of incidents or a condition not common and necessary to all or a great many occupations. Zerofski's Case, 385 Mass. 590, 594-595 (1982). He must prove this to a probability and not a mere possibility. Hachadourian's Case, 340 Mass. 81, 86 (1959).
At the threshold, it is the employee's burden to prove that the "trouble from which he suffered was the result of an injury which was due to his work and arose out of it." Robinson's Case, 299 Mass. 499-502 (1938). See Caswell's Case, 305 Mass. 500, 502 (1940) (injury arises out of employment if arises out of nature, obligations or incidents of the employment looked at in any of its aspects). An employee is not required to exclude all possibilities as the source of an injury. Rodrigues's Case, 296 Mass. 192, 195 (1936); Blanchard's Case, 277 Mass. 413, 415 (1931).
Most importantly, for purposes of this case, an employee isnot required to show the "precise" or specific causal agent producing the harm. Rodrigues's Case, 296 Mass. at 195;Belanger's Case, 274 Mass. 371, 374 (1931); McDonald's Case, 277 Mass. 418, 421 (1931); Bean's Case, 227 Mass. 558, 560 (1917). "It is sufficient if the evidence afford[s] the basis for the reasonable inference that his injury resulted from his work at the employer's plant . . . from some chemical irritant . . . while he was engaged in [his] duties." (emphasis added);Rodrigues's Case, 296 Mass. at 195-196; see Duggan's Case, 315 Mass. 355, 359 (1944) (injury caused by exposure to dust);Robinson's Case, 299 Mass. at 502 ("injury caused by contact with or exposure to chemicals and dyes or their vapors in the course of his employment."); Johnson's Case, 279 Mass. at 484 ("expos[ure] to noxious gas and fumes at times, to degrees not clearly indicated."; DaSilva's Case, 6 Mass. App. Ct. 839, (1978) (rescript op.) ("an agent which acts as an irritant as opposed to an allergen may be the cause of an injury in the legal sense") (emphasis added). It has never been part of the employee's burden, to demonstrate that "the injurious agent be discoverable in the disease itself." Reilly's Case, 1 Mass. App. Ct. 825, 826 (1973) (rescript op.) and cases cited (emphasis added). Furthermore, an injury may be compensable even where it cannot be shown to have originated in any definite incident, manner, or at any definite time.Crowley's Case, 287 Mass. 367, 371 (1934), citing Bean's Case, 227 Mass. at 560.
Whether there is a causal relation between the conditions of work and an injury sustained is largely a medical question in complex matters, which opinion must be rendered to a reasonable probability without surmise, conjecture, or speculation.Hachadourian's Case, 340 Mass. 81, 86 (1959); Josi's Case, 324 Mass. 415, 418 (1949); Johnson's Case, 279 Mass. at 484. "Where the relation of cause and effect between two facts has to be proved, the testimony of an expert that such relation exists . . . or probably exists . . . has been held enough . . . together with the previous freedom of the employee from the condition involved . . ." Robinson's Case, 299 Mass. at 502;Defilippo's Case, 284 Mass. 531, 534-535 (1933); see Duggan's Case, 315 Mass. 355, 357 (1944).
In this case, the judge found that the employee came into contact with "foreign substances," "white dust", "chemicals", "black matter", and perhaps "acid" at the employer's plant while performing his duties. (Dec. 6-7, 9.) Following contact with these substances, the judge found that the employee, contemporaneous[ly], had severe respiratory problems and that "it was only during his employment at the Collyer Wiring Company plant that he suffered severe symptoms." (Dec. 7, 10.) Other workers wore protective equipment and full respirator suits at the plant, which had a very dusty atmosphere, but the employee did not wear a mask over his face or other protective gear. (Dec. 6-7.) On several occasions, other workers wearing such protectors told him to leave areas where they were removing some of the chemical substances. (Dec. 6.) The employee was not aware of what specific chemicals were in the areas where he worked. Id. However, there was evidence submitted regarding chemicals and toxic wastes at the plant during September and October 1989 when the employee alleges he sustained the industrial injury. (Employee's Exhibit 4; Employee's Exhibit 6; Insurer's Exhibit 3.)
The employee placed in evidence the medical opinion of Dr. Jain. (Employee's Exhibit 2, Joint Exhibits 1-7.) While Dr. Jain could not identify a specific agent or entity that caused the employee's condition (Dec. 8-9; Dep. 33, 39), he explicitly causally related to a reasonable medical probability, the onset of the employee's asthmatic bronchitis to the exposure to "strong chemicals", "hazardous wastes" and/or "acids" in the work place. (Jain Dep. 12-13, 16-17, 20, 26, 32, 35-38-39.)
Dr. Edward Gaensler, who examined the employee on behalf of the insurer, testified that he could not state with a reasonable degree of medical certainty as to the cause of the employee's adult onset asthma.
The judge found the employee was exposed to chemicals and other foreign substances at his place of employment. However, while the expert opinion of Dr. Jain causally linked the employee's asthmatic bronchitis to that exposure, the judge concluded that the employee had failed to meet his burden of proof because a specific chemical entity causing the condition was not identified. As there is no requirement under Massachusetts law that a particular irritant be identified, the judge's rejection of the employee's claim on that basis was error. See Bean's Case, 227 Mass. at 560 and its progeny, supra. The judge relied on the case of Leveille v. Spectran Inc., 5 Mass. Workers' Comp. Rep. 83, 85 (1991) to support his decision. That case is, however, distinguishable because the medical opinion there was speculative and not to a reasonable probability and evidence of what chemicals were present or the amount and duration of exposure was lacking. Moreover, the employee had suffered from asthma since the age of one.
Accordingly, we request that the senior judge assign this case to an administrative judge for hearing de novo.
The administrative judge who originally heard and decided this case no longer serves as such.
FILED: August 3, 1998
So ordered.
____________________________ ____________________________ William A. McCarthy Susan Maze-Rothstein Administrative Law Judge Administrative Law Judge
The judge acted consistently with law in refusing to rely upon an expert causation opinion that, in his judgment, lacked an adequate factual foundation. This meager record does not compel a conclusion that the doctor's vague and unfounded opinion was adequate to satisfy the employee's burden of proof. The decision is not arbitrary or capricious or contrary to law. Therefore, G.L.c. 152, § 11C requires the reviewing board to affirm it.
For an expert opinion to be considered, it must have a reliable basis in the facts of the case. Sevigny's Case, 337 Mass. 747, 751 (1958), citing Brown v. United States Fid. Guar. Co., 336 Mass. 609, 613-614 (1958) and Ralph's Case, 331 Mass. 86, 90 (1954). Facts gratuitously assumed are insufficient to form the basis of a reasonable opinion. Sevigny's Case, supra. Opinions based on assumptions not established in evidence are entitled to no weight. State Bd. of Retirement v. Contributory Retirement Appeal Bd., 342 Mass. 58, 65-66 (1961). Consequently, before weighing an expert opinion, the judge must first decide whether the facts exist upon which the opinion is premised. The judge thus has a gatekeeper role.
The judge found several key facts: Dr. Jain testified that adult onset of asthma can begin "without the doctor being aware of an initiating agent." (Dec. 8; see Jain Dep. 13, 37.) Dr. Edward Gaensler testified that he could not state with a reasonable degree of medical certainty as to the cause of the employee's adult onset asthma. (Dec. 11, fn. 3.)
The judge properly exercised his gatekeeper role when he determined that the factual foundation for Dr. Jain's opinion, causally relating the employee's asthma to chemical exposure at work, had not been established. Dr. Jain assumed that the employee was exposed to the chemicals on the list admitted as Jain Dep. Joint Ex. 9. However, the judge found no basis for that assumption. (Dec. 8, fn. 1.) He wrote: "The employee was working in a very large building. The chemicals on the list could have been located anywhere in the building, including in areas where the employee did not go." (Dec. 9.) The doctor was not too familiar with most of the chemicals on the list and was unable to identify any substance that would specifically cause occupational asthma. (Dec. 8, 9-10; Jain Dep. 20, 39.) The judge wrote:
We do not know what these substances were or what dangers they posed. . . . Dr. Jain testified that chemicals and acids were the initiating agent. Since there is no evidence as to which chemicals and acids the employee was exposed, and since Dr. Jain did not testify that exposure to any chemicals was sufficient, the employee has not satisfied his burden of proof.
(Dec. 10.) The judge did not err in so concluding.
There is no legal authority for the proposition that the judge was required to rely on this speculative expert opinion. The cases cited by the majority, see, e.g., Rodrigues's Case, 296 Mass. 192, 195 (1931), are inapposite. They are either not on point or are affirmances of the factfinders' discretionary decision to admit and rely upon medical opinions. None of them stands for the proposition that a judge is required to accept unfounded expert testimony. The majority's citations actually support a deferential standard of review. They do not mandate reversal of a judge's indisputably rational decision to exclude unreliable, and therefore irrelevant, evidence.
Although the judge did not reach his decision on this basis, one may note that Dr. Jain's opinion was hedged and ambiguous. When asked about causation, he testified: "It is difficult to say," (Jain Dep. 13.) He agreed that "it is possible that an instigating agent could cause the adult onset of asthma" (Jain Dep. 13); "it is possible that exposure to those chemicals could damage the bronchial tubes and initiate asthma" (Jain Dep. 20.) See King's Case, 352 Mass. 488, 491-492 (1967): Oberlander's Case, 348 Mass. 1, 5-6 (1964) (employee cannot prevail if causal relationship is no more than a possibility; a mere guess or conjecture has no evidential value).
In Crowley's Case, 287 Mass. 367 (1934), the court reversed an award of compensation because there was no medical evidence causally relating the medical disability to the claimed injury date. MacDonald's Case, 277 Mass. 418 (1918) has nothing to do with the medical evidence presented, but deals instead with the concept of "course of employment" under G.L.c. 152, § 26.
Prior to December 23, 1991, the reviewing board had fact-finding powers. DeCicco v. Hapwood Globe Retinning Corp., 11 Mass. Workers' Comp. Rep. 376, 377-378 (1997). Section 11C was amended by St. 1991. c. 398, § 31 to eliminate the reviewing board's authority to weigh evidence. The scope of our review is now identical to that of the Appeals Court. Id.; G.L.c. 152, §§ 11C and 12(2).
There is nothing in the law of Massachusetts that requires a judge to consider an expert opinion that is connected to the case only by the ipse dixit of the expert witness. A judge may properly conclude that there is simply too great an analytical gap between the facts that he finds and the opinion proferred. That is what the judge did here, and he did not abuse his discretion in so doing. The judge properly exercised his authority to assure that the evidence considered on the merits of the case was reliable.
The judge's decision was not arbitrary or capricious, or contrary to law. It should be affirmed. G.L.c. 152, § 11C.
_______________________ Suzanne E.K. Smith Administrative Law Judge