Opinion
BOARD No. 015984-91
Filed: December 29, 1995
REVIEWING BOARD DECISION
(Judges Wilson, Fischel and McCarthy)
APPEARANCES
Warren A. Blair, III, Esq., for the employee
John J. O'Day, Jr., Esq., for the insurer
The insurer appeals a decision in which the judge found that the employee had suffered an industrial accident to his back, and awarded compensation for temporary and total incapacity and medical benefits. The insurer contends that the decision is contrary to law because the § 11A examiner's opinion is too speculative to establish causal relationship between the work incident and medical impairment. We do not agree and affirm the decision.
We summarize the administrative judge's findings of fact (Dec. 3-6). The employee worked as an autobody technician. On February 16, 1991, he lacerated his finger when a wheel cover snapped out of position and he allegedly fell backwards onto his tailbone. While the finger healed well, the employee mentioned back pain to doctors at Health Stop on the day of the accident and, within a month of the industrial accident, complained to his doctor of back pain that later increased in severity, with radiating pain to his left leg. The employee's medical records disclosed neither evidence of prior lumbar back pain nor any intervening incident between the industrial accident and diagnostic testing. An MRI scan revealed herniated discs at L4-5 and L5-S1. The employee underwent a disc excision on May 22, 1992, but his condition did not improve.
At conference, the insurer's application to discontinue or modify benefits was denied, which order the insurer appealed to a hearing de novo. The employee was examined by a § 11A physician, who determined that there was "quite possibly" a causal relationship between the employee's back condition and his industrial injury of February 16, 1991. The doctor opined that the employee's back condition rendered him partially medically disabled (Dec. 2, 4-5). The judge awarded partial incapacity benefits based on the employee's credible testimony regarding the industrial accident and causal relationship, and the impartial physician's opinion regarding the extent of the employee's back-related disability (Dec. 7-8).
The insurer argues that the decision is contrary to law because the judge did not base her conclusion as to causal relationship on expert medical opinion expressed with a sufficient degree of certainty. SeeJosi's Case, 324 Mass. 415, 417-418 (1949) (proof of medical causation that is beyond the knowledge and experience of ordinary layperson must be based on expert medical testimony that states more than a possible causal relationship between the accident and the medical disability).
In the instant case, the only medical testimony was that of the impartial physician pursuant to § 11A. "Such impartial physician's report shall constitute prima facie evidence of the matters contained therein." G.L.c. 152, § 11A(2). The prima facie status of the medical report, notwithstanding, the judge may also consider the testimony of the lay witnesses and other evidence in making the ultimate assessment of incapacity. See Scheffler's Case, 419 Mass. 251, 256 (1994). Moreover, the prima facie evidence in the impartial report loses its artificial legal force when it is met with other evidence that warrants a contrary conclusion. Cook v. Farm Service Stores, 301 Mass. 564, 566 (1938). Nonetheless, the insurer asserts that the judge cannot conclude the existence of medical causation based on lay testimony, when the only "opinion of a medical expert [in evidence], however phrased . . . amounts to no more than an expression indicating the possibility or chance of the existence of a causal connection between the accident and the disability. . . ." Josi's Case, supra at 418. In our view, the insurer reads Josi's Case too narrowly. The court went on in that decision to explain that expert testimony of a "possible" causal relationship may be sufficient to find a causal connection where it is strengthened by expert testimony that it was not unusual for arthritis to follow a trauma, and further strengthened by the fact that there was no evidence of problems prior to the accident. Id. at 418-419; see also Sevigny's Case, 337 Mass. 747, 749-750 (1958) (evidence must be such that causal relationship is more likely than not and if evidence stops at the point of an opinion of only "possible" causal relationship, the opinion is no more than mere speculation). Not only may an ambiguous expert opinion as to causal relationship be strengthened by other testimony of the expert, but also the expert testimony may be considered in conjunction with lay evidence to tip the balance. See Josi's Case, supra at 418; De Filippo's Case, 284 Mass. 531, 535 (1933). Laurence Locke summarized these principles, declaring that an expert's use of the words "`possible,' `conceivable,' or `reasonable' do not fatally flaw his opinion . . . where the sequence of events or other evidence warrants the conclusion that causal relation is probable." L. Locke, Workmen's Compensation § 522 (2d ed. 1981), citing Fennell's Case, 277 Mass. 492, 496 (1931);DeFilippo's Case, 284 Mass. 531, 534-535 (1933); Josi's Case, 324 Mass. 415, 417 (1949); McAuliffe v. Metcalfe, 289 Mass. 67, 69 (1935); Comeau v. Beck, 319 Mass. 17, 20 (1946). Thus, the courts have long recognized a judge's authority as fact finder to find causal relationship where the expert testimony and lay evidence taken as a whole warrant that result. See also Afienko v. Harvard Club of Boston, 365 Mass. 320, 334-335 (1974). But compare Hachadourian's Case, 340 Mass. 81, 86 (1959) (expert opinion not sufficient to establish causal relationship where it was equivocal, stating no more than a possibility or chance of causal connection, and it was the only evidence to support the employee's claim).
Our examination of the instant expert report and testimony pursuant to the principles enunciated in Josi's Case reveals that the medical examiner's opinion on causation is sufficiently buttressed to take it out of the realm of speculation or conjuncture. First, although the expert's written opinion was that there is "quite possibly" a causal relationship, indicating a degree or extent greater than merely "possible," the sworn testimony was that causal relationship was "possible." (Board exh. 1; Dep. 23, 46). Nevertheless, this equivocal opinion is strengthened by the expert's statements that the employee complained about back pain to his treating physician in early March of 1991, that the records reveal no evidence of significant lumbar back problems prior to the work incident, and that there is no evidence of an intervening accident prior to the lumbar diagnostic testing and subsequent surgery (Board exh. 1; Dep. 21, 45, 60). Moreover, the administrative judge believed the employee's testimony that he mentioned his back pain to doctors at the Health Stop on the day of the work incident. In sum, when we examine the expert testimony together with the credible lay testimony, we cannot say that the judge's conclusion of causal relationship lacks sufficient evidentiary support to carry it over to the realm of probability.
While we defer here to the administrative judge's fact finding ability, we do not view this decision as signaling either a sea change or blanket approval of adoption of expert opinion couched in terms of no more than speculation or ambivalence. To the contrary, we caution that the result reached here requires the exercise of great care on the part of an administrative judge before finding a constellation of circumstances sufficient to bridge the gap between a mere possibility and probability of medical causation.
The decision is affirmed.
The insurer shall pay attorney's fees in the amount of $1,000.
So ordered.
_______________________ Sara Holmes Wilson Administrative Law Judge
_________________________ William A. McCarthy Administrative Law Judge
_________________________ Carolynn N. Fischel Administrative Law Judge
Filed: December 29, 1995