Opinion
Board Nos. 5630993, 6294293
Filed: October 1, 1997
REVIEWING BOARD DECISION (Judges Smith, Maze-Rothstein and McCarthy)
APPEARANCES
William A. Rota, Esq., for the employee John J. Canniff, Esq., for insurer of Friendly Ice Cream Corp., Ins. Co. of State of PA.
Andrew S. A. Levine, Esq., for Workers' Comp. Trust Fund providing coverage for the uninsured Springside Health Center
In this multiple injury case, the employer on the risk for the first injury did not have workers' compensation insurance as required by G.L.c. 152, § 25A and, pursuant G.L.c. 152, § 65 (2)(e), the Workers' Compensation Trust Fund (Trust Fund) defended the claim. After hearing, the judge found that the employee's incapacity was caused by the first injury, and denied the claim of a subsequent injury. The judge ordered the Trust Fund to pay § 34 weekly total temporary incapacity benefits from November 24, 1994 to April 24, 1995, continuing § 35 weekly temporary partial incapacity benefits from April 25, 1995, medical benefits pursuant to §§ 13 and 30 and a fee to the employee's attorney. Because the decision denying the second injury claim is arbitrary, capricious and contrary to law, we reverse it and recommit the case for further findings of fact and conclusions of law on that issue. G.L.c. 152, § 11C.
Streit filed two claims for benefits. The first claim listed an injury on March 28, 1993 arising out of work for Springside Health Center (Springside), uninsured. The second listed an injury on November 11, 1993 arising out of work for Friendly Ice Cream Corp. (Friendly's), insured by Insurance Co. of State of Pennsylvania (INP), with total incapacity commencing November 24, 1993. Following a § 10A conference, both claims were denied. Streit appealed and a de novo hearing was held. Both the Trust Fund and INP raised as issues: liability, disability and causal relationship. Dr. James R. Parkinson was appointed the impartial medical examiner pursuant to § 11A(2). The judge deemed the impartial medical report adequate and the issues non-complex. It was given prima facie effect and admitted into evidence together with his addendum and deposition testimony. (Dec. 3.)
In his decision, the judge made the following specific factual findings: Frederick Streit is a thirty year old, certified nurse's aide. (Dec. 3.) On March 28, 1993, while working for Springside Nursing Home, Streit strained his back lifting a patient. Ten days later, he again strained his back helping patients in a bathtub. He initially treated at Hillcrest Hospital followed by five weeks of chiropractic treatment. X-rays were performed and he missed one week of work. He then returned to work in a light duty capacity. Streit ended his employment with Springside in June or July 1993. At that time, his back was bothering him and, due to inadequate staffing, he was required to perform tasks beyond his physical capacity. (Dec. 4.)
In the autumn of 1993, Streit returned to the work force as a full-time cook at Friendly's in Lee, Massachusetts. The job did not involve lifting. Because of transportation problems, he left this job after thirty days. Two weeks later, he began work as a cook/prep/dishwasher at Friendly's in Pittsfield, Massachusetts. (Dec. 4.)
Streit testified that he re-injured his back lifting bus pans and doing dishes two days before Thanksgiving, on November 23, 1993. (Dec. 4, 5.) He worked the next day and never returned. (Dec. 4.) He sought treatment for his back on November 25 and 29, 1993 at Hillcrest Hospital Emergency Room. (Dec. 4.) He subsequently underwent a CT scan followed by surgery on March 17, 1994. Another CT scan conducted in May 1995 indicated L5-S1 disc herniation and the possibility of additional surgery was discussed. (Dec. 5.)
The judge found "that the opinions of the medical expert deposed in the case expressed to a reasonable degree of medical certainty as sufficient to conclude the issues of disability and causal relationship." (Dec. 8.) He adopted the impartial medical examiner's opinion that Streit was totally disabled from November 24, 1993 until April 24, 1994 and had continuing partial medical disability. He found Streit capable of performing sedentary work with limitations as to bending, stooping, lifting and carrying and assigned a $100.00 earning capacity. (Dec. 7, 8.) He ordered the Trust Fund to pay a closed period of § 34 total incapacity benefits followed by ongoing § 35 partial incapacity benefits, and dismissed Streit's claim of a second injury at Friendly's. (Dec. 8.)
The Trust Fund appeals, raising three issues: 1) the lack of personal analysis by the judge who principally followed a draft decision submitted by INP; 2) the failure to adopt the unrebutted impartial medical opinion regarding the existence of an injury at Friendly's; and 3) the application of an erroneous causation standard. We address each issue in turn.
It is not reversible error for a judge to base his decision on the findings and rulings proposed by a party so long as his findings reflect independent judgement on his part. Abbott v. John Hancock Mut. Life Ins. Co., 18 Mass. App. Ct. 508, 522 (1984) (substantial similarity to party-proposed findings and rulings does not void the findings nor automatically displace the "arbitrary and capricious" standard). In this case, while the judge's decision is very similar the insurer's proposed decision, it includes sufficient modifications and other indicia of the judge's independent thought (including various insertions, modifications, deletions and general reformatting) to pass judicial muster. SeeAnthony's Pier Four, Inc. v. HBC Assocs., 411 Mass. 451, 464-465 (1991). However, the decision as written cannot be sustained.
The decision recites the causation opinions of the impartial medical examiner. These opinions do not rationally support the denial of the second injury claim. In his report, Dr. Parkinson had assessed forty percent of causation to the March 1993 injury and sixty percent to the November 1993 injury. He reversed those percentages at deposition. The doctor then opined that the March 1993 Springside injury was sixty percent responsible for Streit's incapacity while the November 1993 Friendly's injury was forty percent responsible. He further opined that if no acute injury occurred in November 1993 he would attribute a larger responsibility to the March 1993 injury. (Dec. 6; Dep. 47, 48). The impartial medical examiner's fluctuating apportionment opinions do not affect the assignment of responsibility for the employee's compensation because, as a matter of law, even a forty per cent contribution to the employee's incapacity places liability with INP, the second injury insurer. Casey's Case, 348 Mass. 572, 574 (1965). These causation opinions cannot be ignored by the judge.
Section 11A(2) provides that the "impartial physician's report shall constitute prima facie evidence of the matters contained therein." In the absence of competent contradictory evidence, this prima facie status requires the judge to find that the impartial opinion is true. Scheffler's Case, 419 Mass. 251, 258-259 (1994). Expert medical evidence on causation was required in the circumstances of this case. See Buck's Case, 342 Mass. 766, 769 (1961); Degregorio v. Ceco Construction Co., 6 Mass. Workers' Comp. Rep. 213, 217 (1992). The only expert medical opinion on causation came from the impartial medical examiner.
The impartial medical opinion that a second injury at Friendly's participated causally in the employee's ongoing incapacity may not be rejected without a rational basis for such rejection in the record. See Robinson v. Contributory Retirement Appeal Board, 20 Mass. App. Ct. 634, 639 (1985). The judge apparently disregarded the impartial causation opinions because ". . . the Employee, by his own testimony, has not sustained an injury at Friendly's." (Dec. 7.) This rationale fails for two reasons. First, the employee's lay causation opinion is not competent to rebut that of the impartial medical examiner. Second, Streit did not testify that he wasn't injured at Friendly's. Streit testified that he developed lower back pain lifting bus pans at Friendly's two days before Thanksgiving of 1993. (Dec. 4, 5; Tr. 21, 22.) The reason given for rejection of the impartial causation is arbitrary and capricious, and contrary to law.
In addition, the decision evidences erroneous application of a statutory provision. The judge found that the injury at Springside remained "the major and predominant cause of disability and the need for medical treatment." This language comes from § 1 (7A) which states, in pertinent part:
. . . 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. . . . (emphasis supplied)
G.L.c. 152, § 1 (7A), as amended by St. 1991, c. 398, § 14. This higher causation standard applies only where the pre-existing condition is not work-related. Here, the judge found a compensable injury at Springside on March 28, 1993. Therefore, to recover from the second injury insurer, the employee merely had to establish that his subsequent employment at Friendly's caused a worsening of his prior medical condition under circumstances which meet the Zerofski tests for legal causation. See Zerofski's Case, 385 Mass. 590 (1982). The second injury insurer, INP, would then remain solely responsible for the employee's compensation so long as the aggravation continued. Its liability would cease only when the employee recovered the health status experienced prior to the second injury, severing the causal connection between the employee's condition and the second injury. Casey's Case, 348 Mass. at 574.
For these reasons, we conclude that the decision must be reversed and the case recommitted for a new decision consistent with this opinion. In light of the passage of time during the pendency of the appeal, the judge may take whatever additional evidence is necessary to render a just decision. Pending a new decision on the second injury claim, the Trust Fund shall continue to make the compensation payments previously ordered. See G.L.c. 152, § 15A.
So ordered.
______________________________ Suzanne E. K. Smith Administrative Law Judge
______________________________ Susan Maze-Rothstein Administrative Law Judge
______________________________ William A. McCarthy Administrative Law Judge
Filed: October 1, 1997