Opinion
BOARD No. 08671089
Filed: August 30, 1995
REVIEWING BOARD DECISION
(Judges Fischel, Wilson and McCarthy)
Cynthia A. Spinola, Esq., for the employee.
John R. Cowie Jr., Esq., for the insurer.
This case involves cross appeals from the decision of an administrative judge filed on April 9, 1993 which, effective as of the filing date, modified the employee's compensation rate from § 34 total incapacity benefits to § 35 partial incapacity compensation benefits, and ordered the insurer to pay medical benefits for neck, shoulder and right upper extremity injuries. We affirm the findings that the work incident involved injuries to the neck and shoulder and right arm. We recommit the case because the judge made inconsistent findings as to the § 14 issue raised and as to the employee's extent of incapacity, and because findings as to when benefits begin and end are not grounded in the evidence.
Findings as to when benefits begin and end must be anchored in the evidence. Makris v. Jolly Jorge's Inc., 4 Mass. Workers' Comp. Rep. 360, 362 (1990).
On March 29, 1989, the employee, a working supervisor in the industrialized housing industry, "suffered multiple severe tortional injuries when he caught a 400-pound panel that had been picked up by the wind." (Dec. 5). The insurer accepted liability for the payment of temporary total incapacity and medical benefits. On October 28, 1991, the insurer filed an application for discontinuance or modification, which was denied following a conference. The insurer appealed and at hearing raised the issues of disability and extent thereof and liability for the injury to the cervical spine and trapezius muscle. The administrative judge filed a decision on April 9, 1993, which found that the work injury had aggravated a pre-existing work injury and caused injuries to the employee's right upper extremity, neck and shoulder. (Dec. 7).
The judge found that the employee previously suffered injuries to his neck and shoulder on December 24, 1988 while working for the same employer, Springfield Associates, Inc. (Dec. 6). The employee was treated by a chiropractor for several weeks and lost no time from work as a result of this injury. (Dec. 6). He had stopped treatment and was feeling much improvement as of March 6, 1989, some three weeks prior to the second injury on March 29, 1989. (Dec. 6). The judge found that the March 29, 1989 injury aggravated the prior work injury. (Dec. 7).
The insurer argues that the employee has not met his burden of proof on causal relationship of the neck injury to the industrial accident. We disagree. The judge found that the work incident of March 29, 1989 aggravated the employee's pre-existing injury, and resulted in injuries to his right upper extremity, including neck and shoulder. (Dec. 7) Medical reports of Dr. Alexander Wright, Dr. Robert Leffert, Dr. Gerald Zupruk and Dr. Laurence Cohen, were marked in evidence. (Dec. 3). The judge summarized the cumulative medical opinion. The judge found that "[t]he employee has, as a result of the above injuries, developed a torticollis or rotational turn of his head and neck to the right and has difficulty looking upwards due to limitation of movement and spasms". (Dec. 6). In his general findings, the administrative judge noted that the insurer's examining physician, Dr. Leffert, had informed the insurer by letter dated January 14, 1991 that the employee's neck and shoulder problems were work related. (Dec. 7, Employee Ex. 3). The medical evidence supports the findings made. We affirm the administrative judge's findings with respect to the causal relationship of the neck injury to the industrial accident.
The judge noted Dr. Laurence Cohen's diagnosis of ruptured biceps tendon that could not be repaired. (Dec. 5). In a letter dated 7-3-90, Dr. Zupruk reported "I think that when Mr. Cowan tried to catch the 400 pound weight which tore his biceps tendon, he also injured the trapezius muscle." (Employee Ex. 5). Dr. Wright also opined that "[i]t is my belief that he suffered a torsional injury in 3/89 which resulted in 1. A rupture of the long head of the right biceps tendon and 2. Aggravation of a pre-existing, previously asymptomatic, cervical spondylosis, most marked between C4-5 and C5-6." (Employee Ex. 2).
The judge found as follows:
Dr. Wright's diagnosis is ruptured biceps tendon on the right, with associated right arm weakness and limitation of movement; aggravation of pre-existing cervical, trapezius and shoulder injury, aggravation of a pre-existing cervical spondylosis most marked at C4-5 and C5-6, and damage to the median nerve at the right elbow with development of a neuroma, according to doctors, Leffert, Wright, Cohen, and Zupnuck (sic)". (Dec. 5-6).
In his report dated January 14, 1991, Doctor Leffert stated:
"There is no question in my mind that the ruptured biceps and if he has a median nerve lesion either at the elbow or wrist, that they are connected with his industrial injury of March 1989. In addition he sustained injury to his neck and here one must be cautious because many people have evidence of cervical spondylosis that is either not industrially or traumatically induced and they are completely asymptomatic". He concludes "It seems quite reasonable to ascribe his neck problem to the reported injury". (Employee Ex. 3).
On appeal the insurer argues that the administrative judge relied upon medical opinion not admitted into evidence. As best as we can determine, the crux of its contention is that the judge erred to adopt the medical opinion of insurer Doctor Robert Leffert because Dr. Leffert formed his opinion based upon reports of Dr. Stephen Tosk and Dr. Alexander Wright that were not properly in evidence. We find no merit to this argument. In the first place, physicians may rely on the reports of other medical providers in the course of forming their opinions. We are satisfied that Dr. Leffert's opinions were based on his own clinical examination of the employee in light of the history of his injury. See DaSilveira v. Rand McNally Co., 6 Mass. Workers' Comp. Rep. 64, 66 (1992). Secondly, the report of Dr. Wright was in evidence. Although the judge did sustain the insurer's objection as to the marking of Dr. Wright's reports as an exhibit to the deposition of Dr. Leffert, the subject reports had already been marked into evidence during the lay hearing as Exhibit Two for the employee. (Dec. 3, Tr. 9). Finally, the judge does not rely upon any report that is not in evidence; he makes no findings referencing the opinion of Dr. Tosk. We find no merit to the insurer's representation that the judge relied on evidence not admitted at hearing.
The decision reflects that the report of Dr. Alexander Wright and the report of Dr. Stephen Tosk were listed as exhibits to the deposition of the insurer's medical expert, Dr. Leffert. (Dec. 3). We find no error in the judge's noting the marking of exhibits for identification in a deposition. Such marking does not in itself transform the documents into evidence.
Dr. Leffert, in rendering his opinion, was entitled to rely upon the reports of Dr. Tosk and Dr. Wright, to the extent he deemed necessary. Medical experts may rely on information in reports customarily used by members of the profession to form opinions. See Cooks v. Boston Housing Authority, 4 Mass. Workers' Comp. Rep. 48, 49 (1990); Trani's Case, 4 Mass. App. Ct. 857, 858 (1976).
The insurer alleges that the decision filed by the judge was a verbatim adoption of a draft submitted by the employee, evincing no "badge of personal analysis." (Insurer's Brief, 9-12). See Cormier v. Carty, 381 Mass. 234, 237-238, 408 N.E. 860, 862 (1980) (for court treatment of verbatim draft decisions). We find no verbatim adoption. We note that the employee, having filed a cross appeal, did not obtain in the decision all that it had proposed in its draft.
While we affirm the findings as to the causal relationship of the neck injury to the industrial accident, we conclude that the case must be recommitted for clarification of several issues. First, the decision contains inconsistent findings on the issues presented. On the question of extent of incapacity, the judge found, on the one hand, "the employee remains disabled from gainful employment in the open market, due regards having been given his age, education, work experience and physical condition." (Dec. 8). Having found total present incapacity, the judge then assigned the employee an earning capacity of $469.23 per week (Dec. 8). It is inconsistent to assign an earning capacity to an employee while simultaneously finding he remains totally incapacitated for employment. We therefore vacate the finding of an earning capacity, and restore the conference order award of continuing total incapacity benefits effective with the filing of this decision.
The administrative judge finds that "[t]he employee remains disabled from gainful employment in the open market". (Dec. 8). However, he goes on to assign an earning capacity. The administrative judge orders "payment of partial disability compensation under § 35 of the Act at the week rate of $444.20 based on an average weekly wage of $1057.69 and an earning capacity of 469.23." (Dec. 8).
There are inconsistent findings as to the § 14 issue raised by the employee. The decision reflects that the employee raised as an issue at hearing whether costs should be awarded under § 14 because of the litigation regarding the neck and trapezius. (Dec. 1). The judge found that in the appeal to hearing from the denial at conference of the insurer's request for discontinuance, "the insurer, for the very first time raised the issue of causation with respect to the neck and trapezius muscle injury." (Dec. 2). The judge then made the following findings:
"I find that the insurer has not unreasonably raised the issue of causation of the neck injury and the shoulder injury." (Dec. 8).
"The insurer acted unreasonably in raising at the hearing the issue of causal relationship of the neck, trapezius and shoulder condition to the work related incident of March 29, 1989." (Dec. 8).
These findings are inconsistent as to whether or not the judge found the insurer unreasonable in raising and litigating the issue at trial. Where findings are internally inconsistent, as they are here, the decision cannot stand. See § 11B, Anderson's Case, 373 Mass. 813, 817-818 (1977); Saravia v. General Electric Co., 8 Mass. Workers' Comp. Rep. 132 (1994). The decision fails to meet the requisites of § 11B; pursuant to which a judge must identify the issues and decide each based on adequate subsidiary findings of fact grounded in the evidence. Praetz v. Factory Mutual Engineering Research, 7 Mass. Workers' Comp. Rep. 45, 46-67 (1993).
Because the hearing judge who heard this case no longer serves in the department, we recommit to the senior judge for reassignment for hearing on the § 14 issue and on the issue of present incapacity. In deciding the issue of incapacity, an employee's physical limitations constitute only one factor to be considered by the judge, who need also consider the employee's age, education, background, training, work experience, mental ability and other capabilities. Frennier's Case, 318 Mass. 635, 639 (1945); Scheffler's Case, 419 Mass. 251, 256 (1994).
So ordered. ___________________________ Carolynn N. Fischel Administrative Law Judge
__________________________ William A. McCarthy Administrative Law Judge
__________________________ Sara Holmes Wilson Administrative Law Judge
Filed: August 30, 1995