Opinion
BOARD No. 01823488
Filed: December 17, 1997
REVIEWING BOARD DECISION
(Judges Levine, Wilson and Fischel)
APPEARANCES
Oleg Nikolyszyn, Esq,. for the employee.
Linda D. Oliveira, Esq., at hearing for the insurer.
Paul M. Moretti, Esq., on brief for the insurer.
This case is once more before the reviewing board on the employee's appeal. The board vacated the administrative judge's previous decision and remanded the case for further findings on the issue of whether the employee's ongoing incapacity since June 4, 1991, his last day of work for a new employer, "was due to a worsening caused by the first [industrial] injury, that is, a recurrence that would be properly chargeable to Commercial Union, the insurer on risk in 1988." Cymerman v. Hiller Co., Inc., 10 Mass. Workers' Comp. Rep. 486, 488 (1996) (Cymerman I). Because we find the judge after remand erred in failing to apply the proper legal standard in addressing the issue of recurrence, we vacate and remand this matter once again.
The board also directed the judge to address the claims for §§ 35A, 35B, 13, 30 and 13A in the event that he found for the employee on the issue of causal relationship to the 1988 compensible injury.
We briefly summarize the facts, which are set out in more detail in Cymerman I, supra, at 486-487. The employee sustained an accepted industrial injury to his back on March 30, 1988 while changing a truck tire at Hiller Co. Hiller Co. was insured by Commercial Union. Id. at 486-487. The employee remained out of work until February 9, 1989. In February or March 1989, the employee began a new job as a tool setter at Mel-Co-Ed (Mel-Co).Id. at 487. The employee testified that, while working at Mel-Co, pain from the injury at Hiller continued to bother him, until on June 4, 1991, the employee's pain became so severe he could no longer continue working at Mel-Co. Id. at 487.
The employee claimed compensation benefits under §§ 34, 13, 30, 35A and 35B, alleging a recurrence of the March 1988 compensable injury. Following a de novo hearing, the judge issued his decision on November 30, 1994 and denied all claims. Id. at 487.
In Cymerman I, the reviewing board ordered recommittal because the judge relied on medical evidence which was the product of examinations that occurred in 1988, three years prior to the claimed recurrence in 1991 and thus did not address the causal relationship question in issue. See Id. at 488. All the doctors who examined the employee subsequent to the June 4, 1991 alleged recurrence opined that the disability after that date was causally related to the March 1988 injury. Id. Accordingly, on remand, we directed the administrative judge (1) to make specific findings supported by medical opinions addressed to the period of incapacity and claimed recurrence and (2) if he rejects the uncontradicted opinions of causal relationship, to state his reasons. Id. at 488; see Galloway's Case, 354 Mass, 427, 431 (1968).
In the judge's second decision issued after our recommittal to him, the judge again denied the employee's claim (Hearing Dec. II, at 25-26). In that decision, the judge stated that "the issue in this case, which I had to decide, is whether the employee's present disability is causally related to a recurrence of the employee's industrial accident of 1988 or whether there was a worsening of his back condition which resulted in the inability of the employee to work as of 1991." (Hearing Dec. II, at 24.) He further stated that "[i]t is not my decision that because there was no new or specific injury the employee is not entitled to any benefits due to his worsening condition while at Mel-Co. I am finding a worsening of the employee's condition despite the fact that the employee did not mention any new specific injury while at Mel-Co." (Id. at 25.) (emphasis in original.) The judge appears to have misunderstood the applicable law.
The critical issue to be decided is not whether the employee's present back condition worsened. The critical issue is whether the 1991 incapacity is "simply the natural physiological progression of a condition following the initial incident [i.e., a recurrence] or the result of a new compensable injury." Smick v. South Central Mass. Rehabilitative Resources, Inc., 7 Mass. Workers' Comp. Rep. 84, 86 (1993). "To be compensable, the harm must arise either from a specific incident or series of incidents at work or from an identifiable condition that is not common or necessary to all or a great any occupations." Zerofski's Case, 385 Mass. 590, 594-595 (1982).
Where the most recent incident or condition as aforesaid bears a causal relationship to the slightest extent to a subsequent incapacity, it constitutes an aggravation and subjects the insurer on the risk at that time to liability. Rock's Case, 323 Mass. 428 (1948). Trombetta's Case, 1 Mass. App. Ct. 102, 104 (1973). Thus, where the pain after a work injury has only been occasional, a substantial worsening associated with later work is likely to be regarded as a new injury. Id. at 104-105; Smick, supra, at 86. See generally L. Locke, Workmen's Compensation § 178 (2d ed. 1981) and cases cited.
On the other hand, recurrences are generally evidenced by a continuity of complaints involving a particular condition from the date of a first incident even though there is a later employment and incapacity. See Rock's Case, supra, at 429-430; Bearse v. Anchor Motor Freight, 8 Mass. Workers' Comp. Rep. 17, 19 (1994);Radke v. Eastham Foundations, 7 Mass. Workers' Comp. Rep. 197, 200-201 (1993); Smick, supra, at 86-88. In other words, continued pain and a subsequent "worsening" can support a conclusion that a current incapacity is causally related to an original injury and subjects the insurer at that time to liability. Rock's Case, supra. A later period of incapacity may be "merely a manifestation of effects" of an original injury and not the result of "a new, aggravating injury" chargeable to a later insurer.Casey's Case, 353 Mass. 756 (1967). Expert testimony is required to determine whether or not a subsequent period of incapacity is a recurrence, a question easily framed, but most difficult to answer. See Josi's Case, 324 Mass. 415,417 (1949); Smick, supra at 86-87.
In this case, the uncontradicted expert opinions state that the employee's second period of incapacity and the intensification of his symptoms were related to the original March 1988 injury. This board instructed the judge to accept that uncontroverted medical evidence on causation or state his reasons why he did not.Cymerman I at 488. Of course, medical causation may not be the same as legal causation. See Bearse, supra, at 19 (fact that term "aggravation" has important consequences in workers' compensation law does not mean that its use by a physician dictates a particular legal conclusion by the judge; the judge must consider the entire record). Zerofski's Case, supra. But the judge's reasoning that a "worsening" by itself indicated a lack of legal causation to the 1988 injury is a legally insufficient basis upon which to make the requisite determination; it does not answer the pivotal question whether the worsening was solely related to the original injury or whether the new employment legally contributed to the slightest extent as an independent supervening cause of incapacity. Smick, supra at 86, citing Rock's Case, supra. SeeCosta's Case, 333 Mass. 286, 287-289 (1955) (several periods of incapacity were recurrences chargeable to first insurer; there was no evidence of a specific injury suffered by the employee after the original incident.)
Accordingly, as the judge misapprehended the applicable legal principles, we reverse and recommit this case so that a proper determination can be made. As the judge who heard this case originally and on remand is no longer with the department, we forward this case to the senior judge for reassignment and for a hearing de novo .
So ordered.
________________________ Frederick E. Levine Administrative Law Judge
________________________ Sara Holmes Wilson Administrative Law Judge
________________________ Carolynn N. Fischel Administrative Law Judge
Filed: December 17, 1997