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Commonwealth of Massachusetts Department of Industrial AccidentsNov 28, 1995
BOARD No. 3876989 (Mass. DIA Nov. 28, 1995)

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BOARD No. 3876989

Filed: November 28, 1995


(Judges Kirby, Smith and Maze-Rothstein)


Michael Whalen, Pro se.

Edward E. McCarthy, Esquire, for the insurer.

This is the employee's pro se appeal from a decision of the administrative judge who denied and dismissed his claim for continuing compensation. The judge found that Mr. Whalen's back condition was not causally connected to a compensable leg injury, but to non-work-related disc herniations. We affirm in part, but finding misstatement of evidence, we vacate and remand in part.

The employee, an asbestos remover, sustained injuries to his leg when he was struck squarely on the shins by a 20 foot aluminum ladder thrown by a co-worker on August 10, 1989. (Dec. 3.) He received temporary total incapacity benefits pursuant to G.L.c. 152, § 34 for a closed period from August 11, 1989 to September 28, 1989 by conference order. The employee then filed a claim for compensation from September 29, 1989 and continuing. These claims were denied in an April 3, 1992 conference order. The employee timely appealed and, after another administrative judge had been assigned to the case, an evidentiary hearing was held on January 20, 1993.

The judge filed his decision on April 14, 1993, and found that the employee suffered an injury to his shins in August, 1989 which resulted in his being out of work until September 28, 1989. (Dec. 4.) This judge, however, denied benefits, finding that the employee's "present pain in his legs results from herniations in his back, as related by Doctor Siegel." (Dec. 8.) He further found that Doctor Siegel's opinion on causal relationship of the back and leg conditions to the workplace incident was "based on a history given to him of back pain" beginning on the day of the industrial injury to his shins, a history the judge rejected. (Dec. 8.) In the judge's subsidiary findings he notes that "it is the back which is causing the pain in the right leg according to Dr. Siegel, and his relating of the pain to the work injury relies on the onset of back pain at the time of the injury." (Dec. 6.)

The judge stated in his general findings that the shin injury occurred on August 1, 1989, but in the subsidiaries, he found that it occurred on August 10, 1989 while at the workplace, the Warner Public School. The evidence indicates that the injury occurred on August 10, 1989. See (Dec. 3, 8.)

The employee appeals from this decision pro se. The issues before us are the extent of continuing incapacity causally related to the August 10, 1989 industrial injury and entitlement to §§ 13 and 30 medical benefits.

At the evidentiary hearing, the parties indicated that this matter was a case of initial liability and the judge appears to have treated it as such. (Dec. 2; Tr. 11-14.) The record indicates, however, that there was an established industrial accident to the employee's leg on August 10, 1989. On June 11, 1990 the conference judge awarded § 34 compensation for the shin injury and assessed penalties against the insurer pursuant to § 7. The insurer appealed that order only on the issue of the § 7 penalties, which were again ordered in a hearing decision filed on January 15, 1991. The insurer did not appeal the § 7 penalty order and this is not an issue in this case.
This is the employee's claim for "continuing" compensation benefits flowing from the established August 10, 1989 leg injury.

After review of the evidence and decision, we find first, that the judge's key general finding that Doctor Siegel's causation opinion relied on a history that the employee's back pain began on the same date as the industrial accident to his leg is unsupported in the evidence; and second, that his general findings are inconsistent with his orders and subsidiary findings in several respects.

Doctor Siegel's determination causally relating the disc herniations in Mr. Whalen's back to his leg condition and to the August 10, 1989 incident at work was based on his opinion that the employee had been asymptomatic until the injury. (Siegel Dep. 8, 15-16, 22.) Doctor Siegel did not state that the onset of the "back pain" occurred on the injury date, August 10, 1989. Rather, he stated that his opinion was based on objective evidence as well as on a history of the onset of back and leg "symptoms" occurring after the industrial injury to the employee's shins. (Dec. 5-8; Ex. 7, 8, 10.)

The judge's finding is not harmless error because it goes to a central issue in the case, the rejection of a medical expert's opinion and, as such, it warrants remand in the interests of justice. See Cibene v. Brentwood Realty Trust, 8 Mass. Worker's Comp. Rep. 143, 145 (1994). An administrative judge may disregard a medical opinion on causation but when a finding is based on a factually incorrect description of the medical expert's basis for his opinion, such a decision can not stand. G.L.c. 152, § 11C. A decision is arbitrary and capricious where crucial and material findings are made without support in the evidence. See Bursaw v. B.P. Oil Co., 8 Mass. Worker's Comp. Rep. 145, 148 (1994).

Our second concern is with regard to the denial of benefits under G.L.c. 152 §§ 13 and 30. We find here further cause to remand. An employee is entitled to causally related medical benefits under §§ 13 and 30 where there is a finding of an industrial injury. Tigano v. Acme Book Co., 8 Mass. Worker's Comp. Rep. 116, 119 (1994); Jordan's Case, 6 Mass. Worker's Comp. Rep. 25, 26 (1992). The judge found the employee sustained an injury to his shins at the workplace on August 10, 1989 and yet awarded no compensation for treatment of the injury under § 13 and § 30. This was error.

On remand, the judge should order medical benefits for treatment that is causally related to that injury. The employee submitted extensive bills for treatment of his back. If on recommittal, the judge finds the back injury to be related to the industrial injury, he should order payment of reasonable and necessary medical bills for that condition as well.

We affirm the judge's finding on the occurrence of industrial injury to the employee's leg on August 10, 1989 which incapacitated the employee at least until September 28, 1989. We recommit the remainder of this matter for further findings on the medical claim and on the extent of incapacity from the back injury, if causally related to the initial shin and leg injury, from Sept. 29, 1989 and continuing.

So ordered.

_________________________ Administrative Law Judge

_________________________ Administrative Law Judge

_________________________ Administrative Law Judge

Filed: November 28, 1995