Opinion
Board Numbers: 04131690, 08130689
Filed: June 12, 1995
REVIEWING BOARD:
Judges Kirby, Smith, and Maze-Rothstein.
APPEARANCES:
Thomas, E. Casartello, Esq., for the employee.
Timothy F. Nevils, Esq., for the insurer.
This is an appeal by Westinghouse Electric Corporation (Westinghouse), the self-insurer responsible at the time of an original work injury, who contends that subsequent work for another employer aggravated the employee's condition and that the successive insurer Cigna Companies (Cigna) would therefore be liable. Finding error in the administrative judge's decision, we vacate and reverse in part and remand in part.
The employee, a millwright, first suffered an injury to his back on April 20, 1989 while lifting a steel skid in the course of his employment with Westinghouse. (Dec. 5.) Westinghouse paid benefits for two periods of § 34 temporary, total incapacity and several periods of partial benefits under § 35. Thereafter, on July 17, 1990, while employed at Thomas O'Connor Co. Inc. (O'Connor), insured by Cigna, the employee once again injured his back while attempting to lift a bucket of bolts weighing over 100 pounds. (Dec. 7.)
The employee's duties as a millwright require him to tear apart and rebuild turbines and requires a significant amount of bending, twisting, climbing and heavy lifting. (Employee's Brief at 3.; Tr 6.)
The employee claimed § 34 temporary total weekly incapacity benefits in addition to §§ 13 and 30 medical benefits for this second injury. Following a conference, the administrative judge ordered Cigna to pay § 34 compensation under § 15A from July 17, 1990 and continuing. Cigna appealed the order. Cigna and Westinghouse were joined as parties pursuant to § 15A at the hearing where each insurer raised issues of liability, disability and extent thereof, causal relationship, and §§ 36, 13 and 30.
Section 15A applies to disputes among insurers as to liability as follows:
If one or more claims are filed for an injury and two or more insurers any one of which may be held to be liable to pay compensation therefor, agree that the injured employee would be entitled to receive such compensation but for the existence of a controversy as to which of said insurers is liable to pay the same, such one of said insurers as they may mutually agree upon or as may be selected by a single member of the board shall pay to the injured employee the compensation aforesaid, pending a final decision of the board as to the matter in controversy, and such decision shall require that the amount of compensation so paid shall be deducted from the award if made against another insurer and be paid by said other insurer to the insurer agreed upon or selected by the single member as aforesaid. If, however said insurers cannot agree that such employee would be entitled to compensation irrespective of the existence of such controversy, then a hearing to determine the question of liability and the payment of compensation shall be held forthwith by the division, such hearing to take precedence over other pending matters. G.L c. 152, § 15A.
Cigna alone raised the issue of § 27. The judge denied the claim and the issue was not appealed.
After the full evidentiary hearing, the judge relied on the opinions of Doctors Peter Goldman and Lawrence Field in finding the employee's injury was causally related to the initial injury of 1989 when Westinghouse was on the risk. (Dec. 6.) The judge denied and dismissed all claims against Cigna.
The judge ordered Westinghouse to pay § 34 benefits in the amount of $474.47 per week based on an average weekly wage of $850.00 from July 17, 1990 to December 11, 1991, the date of Doctor Goldman's Deposition. (Dec. 7.) He further ordered § 35 partial incapacity benefits from December 11, 1991 and continuing in the amount of $400.00 per week with an assigned earning capacity of $250.00 based on the average weekly wage of $850.00. Id. The self-insurer, Westinghouse, was ordered to reimburse Cigna for the compensation and other monies it paid to the employee pursuant to the conference order. (Dec. 7-8.)
Westinghouse raises two issues in its appeal from this hearing decision. It first argues that the decision is arbitrary and capricious because the judge adopted Doctor Goldman's opinion from a report submitted prior to his deposition wherein the earlier opinion was contradicted. Secondly, it cites Messersmith's Case, 340 Mass. 117 (1959) and contends that the judge erred as a matter of law in failing to find Cigna on the risk for a new injury, arguing that an aggravation of a pre-existing condition is compensable and must be assessed against the successive insurer.
The critical question to be decided is whether the incapacity from which the employee suffers is causally related solely to the initial injury at Westinghouse or is, all or in part the result of a new compensable injury sustained at the Thomas O'Connor Company, Cigna's insured. See Smick v. South Central Mass. Rehabilitation Resources, Inc., 7 Mass. Workers' Comp. Rep. 84, 86 (1993).
It is settled that only one insurer can be charged for the same disability and, where there is more than one insurer, liability rests with the one covering the risk at the time of the most recent injury that bears a causal relationship to the disability. Casey's Case, 348 Mass. 572, 574 (1965); Evans's Case, 299 Mass. 435, 436, 437 (1938); Trombetta's Case, 1 Mass. App. Ct. 102, 104 (1973). Where symptomatology has subsided or is occasional prior to a second injury, a worsening while working for a successive employer is more likely to be regarded as an aggravation and a compensable new injury. See Trombetta's Case, 1 Mass. App. Ct. at 104. A second injury is compensable if it is a contributing cause even to the slightest extent of the employee's incapacity. Smick, 7 Mass. Workers' Comp. Rep. at 86, citing Rock's Case, 323 Mass. 428 (1948); Madeiros v. San Toro Mfg.; Shepard Clothing, 7 Mass. Workers' Comp. Rep. 66, 67 (1993). In contrast, complaints of continual pain after an injury militate toward the conclusion that a current incapacity relates to the original injury. See Rock's Case, 323 Mass. at 429-30. There can be no apportionment responsibility between insurers where there is an aggravation. Evans's Case, 299 Mass. at 436-437.
Because such causal relation is a matter beyond the common experience of the ordinary laymen, expert medical testimony is required. Casey's Case, 348 Mass. at 574-575. While the judge was free to adopt all, part or none of an expert's testimony, he is not free to mischaracterize it or fail to consider the entire record. See Antoine v. Pyrotector, 7 Mass. Workers' Comp. Rep. 337, 341 (1993), citing Amon's Case, 315 Mass. 210 (1943).
On this record, we conclude that the evidence, including all rational inferences which may be drawn therefrom, can support only one result. See Medeiros, 7 Mass. Workers' Comp. Rep. at 68. We find that the July 17, 1990 injury was an aggravation and thus chargeable to Cigna, the successive insurer on the risk. The judge's reliance on the opinions of Doctors Goldman and Field fails to support his determination that the second claimed period of incapacity was solely related to the April 1989 initial injury at Westinghouse because the administrative judge either misperceived the medical opinions or the law that was to be applied.
Doctor Field clearly opined in his report of February 1, 1991 that the employee injured his back on July 17, 1990 while working for the O'Connor Company, Cigna's insured, and that it was only the continuing subjective symptoms of back pain that he related back to the April, 1989 injury at Westinghouse. (Insurer's Ex. 4).
The administrative judge noted the conflicting testimony between Doctor Goldman's report and his deposition, but adopted the earlier medical opinion in the report of October 23, 1991 relating the employee's condition to the initial injury "which incurred [sic] in July of 1989." (Dec. 6.) The judge's treatment of the doctor's report is wrong on two counts. First, while Doctor Goldman found the employee's condition was directly related to the initial injury sustained at Westinghouse, he went on to state that an MRI scan showed a "proven herniated lumbar disc (to be) a result of that injury" (at Westinghouse) and the injury of July 17, 1990 (the injury with the subsequent employer, O'Connor) was an exacerbation of a pre-existing condition." (Goldman Report of October 23, 1991; Employee Ex. 2.) Therefore, Doctor Goldman's opinion as of the December 11, 1991 deposition was unequivocally that the second July 17, 1990, work injury at the O'Connor job (Cigna's insured), aggravated the back condition sustained initially in April of 1989 at Westinghouse. (Goldman Dep. 16-18, 21-22, 24; Employee Ex. 2.)
In a decision riddled with inaccuracies and carelessness, the judge related the disability to the original injury which he dated as July, 1989. It is clear that he was referring to the April, 1989 date and not any event in July of that year.
Second, it is the expert's last opinion at the time of the testimony that the judge must consider. Perangelo's Case, 277 Mass. 59, 64 (1931). Moreover, even though the use of the term "aggravation" by a physician does not dictate a particular legal conclusion, we find that on this record, a claim of a mere recurrence of the April, 1989 injury cannot be sustained because an aggravation, a new injury, was proved. See Rock's Case, 323 Mass. at 429-430. Compare Bearse v. Anchor Motor Freight, 8 Mass. Workers' Comp. Rep. 17, 19 (1994). Even if the employee's condition related back to the original injury, where there is an incident causing aggravation of the pre-existing condition, it is considered a new injury. Furthermore, even if the Goldman report related the employee's condition to the prior injury, at the time of the deposition, Dr. Goldman clearly diagnosed a worsening causally related to the subsequent employment at the O'Connor company. Insofar as the report and the deposition testimony were inconsistent, the later opinion prevails as the expert's opinion and the effect of the report, the earlier expression recedes, and may not be chosen by the administrative judge.
Since we find as a matter of law that the evidence would not warrant a finding that the initial injury sustained at Westinghouse was the sole cause of the incapacity beginning on July 17, 1990, we reverse and order Cigna to assume responsibility for compensation payments consistent with this opinion. Therefore, it is further ordered pursuant to G.L.c. 152, § 15A that Cigna shall reimburse Westinghouse for all benefits, costs and legal fees from July 17, 1990 and continuing, paid pursuant to the judge's decision. Cigna shall also assume the continuing payments of § 35 partial compensation.
In addition, we remand the decision for consideration and clear findings of fact on 1) whether the effects of the July 17, 1990 aggravation ceased at any time after the December 11, 1991 deposition of Doctor Goldman, and 2) whether the employee returned to the baseline condition that existed prior to the aggravation.
We comment that both Doctor Field and Doctor Goldman opined that the MRI taken on August 24, 1990 showed no change in the disc herniation at L4-5 from the MRI performed in December 1989 after the initial injury. (Dec. 6.) We further note the judge adopted the opinion of both doctors that the employee could return to a light duty job with many restrictions. (Insurer Ex. 4; Goldman Dep. 22.)
As in any pre-existing condition case, the judge must determine the baseline, the work-related diagnosis, and the duration of the aggravation caused by the later industrial accident. Pelletier v. Bristol County, 8 Mass. Workers' Comp. Rep. 250 (September 30, 1994). If the effects of the July, 1990 injury have terminated, Westinghouse may once again be on the risk for continuing compensation. If the judge finds the effects of the July, 1990 aggravation continue, Cigna will be charged with any continuing compensation.
We affirm the decision in all other respects.
In the judge's discretion, due to the passage of time, he may adduce further evidence as justice requires.
So ordered.
Judges Smith and Maze-Rothstein concur.