Opinion
BOARD No. 05932691
Filed: March 27, 1996
REVIEWING BOARD DECISION
(Judges Maze-Rothstein, Smith and Kirby)
APPEARANCES
William H. Murphy, Esq., for the employee at hearing
Deborah A. Dibella, Esq., for the self-insurer at hearing
Paul Moretti, Esq., for the employee on brief at appeal
Margarett Paget, Esq., for the self-insurer on brief at appeal
The employee appeals a decision that found he did not sustain a psychological injury arising out of and in the course of his employment. His claims for compensation benefits were dismissed. Finding legal error, we reverse in part and remand in part.
The employee, a teacher at Boston High School, claimed to have sustained a mental injury from a verbal altercation with a student on October 17, 1991, which resulted in a post traumatic stress disorder. The self-insurer commenced payments of § 34 temporary total weekly incapacity benefits without prejudice. (Dec. 6.) On May 18, 1992, the employee returned to work, but left after ten days on May 28, 1992. (Dec. 7-8.) He claimed three other incidents: 1) being menaced with a toy gun; 2) a fire evacuation; and 3) a classroom disruption, exacerbated his work-related psychological problems.
Because the employee left work again within twenty-eight days due to his industrial condition he made a June 11, 1992, request for resumption of § 34 benefits. G.L.c. 152, § 8 (2)(c). Upon the self-insurer's refusal, he filed a claim for § 34 benefits from October 18, 1991 to May 18, 1992 and § 35 partial weekly compensation benefits from May 29, 1992, and continuing. Following a § 10A conference, a November 24, 1992 order of modification issued awarding § 35 partial incapacity benefits commencing on November 20, 1992 and continuing. (Dec. 3.)
Section 8 (2)(c) provides that if the employee returns to work and leaves within 28 calendar days, the insurer must resume payments if within 21 calendar days the employer has received notice by certified mail that the work related disability renders said employee incapable of performing the work. Section 8 (1) details penalties for noncompliance with provisions of § 8.
The parties stipulated that the employe's average weekly wage was $1,208.44 based on $899.88 per week as a teacher in the Boston Public Schools and $308.56 per week from Pancake Man where he was concurrently employed. (Dec. 4.)
The employee filed a Motion for a Corrected Order because he had not received § 34 benefits since May 18, 1992, the day he returned to work. He renewed the motion on August 2, 1993, the first of three days of hearing. On August 20, 1993, a Corrected Conference Order issued discontinuing all benefits as of that date. Aggrieved the employee appealed this order as well.
Hereinafter references to the transcript of the August 2, 1993 proceedings will be "Tr. I"; the transcript of the August 3, 1993 proceedings will be "Tr. II", and the transcript of the August 27, 1993 hearing will be "Tr. III".
The employee claimed that a total of five incidents precipitated and exacerbated his mental injury. The first took place on October 17, 1991 when, during a verbal altercation, an angered student fuming expletives pointed a finger "at" the employee's head as if it were a gun and said, "Pop, pop, pop" and threatened to come back and get him. (Tr. I, at 40.) He testified that this event reawakened distress over the stabbing death of a former student, Kingsley Allen. The employee also claimed three more incidents that took place after his May, 1992 attempted return to work, worsened his psychological condition and compromised his ability to teach for his employer.
On May 10, 1993 Dr. William E. Land, a psychiatrist, examined the employee pursuant to G.L.c. 152, § 11A. On September 8, 1993 the parties deposed the doctor. Dr. Land opined with a reasonable degree of medical certainty that the employee was disabled as a result of a post traumatic stress disorder causally related to and triggered by the October 17, 1991 incident. (Dec. 8; Employee's Ex. 3.)
Section 11A, as added by St. 1991, C. 398, § 30 provides that the employee is to be examined by a § 11A medical examiner where medical issues are in dispute. The parties did not object to the examination or raise inadequacy, complexity, unconstitutionality, or other issues concerning G.L.c. 152, § 11A. See O'Brien v. Blue Cross/Blue Shield, 9 Mass. Worker's Comp. Rep. 16 (1995).
All claims for compensation including that of the § 8 (2)(c) violation were denied in the August 25, 1994 decision. The judge found the employee failed to meet his burden of proving that he had sustained a personal injury under the statute. She rejected the § 11A opinion of Dr. Land on the grounds that she found discrepancies in the history the doctor relied on that diminished the probative value of his opinion. (Dec. 8-9, 27-28.)
The employee appeals from this decision. He makes two arguments: 1) the judge substituted her own judgment for Dr. Land's uncontradicted medical opinion which rendered the decision arbitrary and capricious and; 2) the judge did not properly apply the provisions of G.L.c. 152, § 8 (2)(c). We agree on the first issue, but remand on the second.
We discuss the treatment of the five events individually because they are integral to understanding where the decision errs. Notably in making her determinations, the judge fixed upon how, not whether, these events took place.
A. PRECIPITATING EVENTS
1. OCTOBER INCIDENT
There is no dispute that on October 17, 1991 a student threatened and gesticulated at the employee. Not questioning the incident's occurrence, the judge instead looked to whether the employee's version of the event "was accurate and whether the version he described rose to the level of Criteria A of Appendix I of the Impartial Medical Examiner's Report for Post Traumatic Stress Syndrome." (Dec. 15; (Tr. I at 40-44.)
At some point during the encounter with the student, the employee called for help. In response, an assistant principal and a school police officer came into the classroom. (Tr. I, at 38-40.) With slight variations, the witnesses testified that the student turned to each of the three men in succession, gesturing with his fingers as though they were a gun and amidst obscenities, threatened to "get them". (Dec. 15-18; Tr. III, at 6-7, 10-11; Employee's Ex. 6.)
Despite the employee's perception that this was a traumatizing personal threat, the judge found that objectively the student did not single out the employee from other school employees to threaten and did not put his finger "to" the employee's head. (Dec. 15, 18.) The employee had testified that the student approached him, pointing his fingers "at" his head. (Dec. 15-16; Tr. I, at 40.)
2. STUDENT MURDER
No one disputes that a former student, Kingsley Allen, was stabbed to death shortly after leaving the employee's class during the previous academic year. (Dec. 13.) The employee testified that memories of this event began to seriously disturb him after the October, 1991 incident. (Tr. I, at 32-34, 43; see Tr. I, at 109-110.)
The judge took issue with the employee's credibility in deciding the § 11A examiner relied on inaccurate or distorted information furnished by the employee in making his diagnosis. (Dec. 13-14.) While noting that the employee maintained that he did not witness the stabbing of Allen, the judge found that the employee "exaggerated his relationship to Kingsley Allen and his family and may have exaggerated his proximity to the stabbing" in order to "suggest the impact the death could have had on him." (Dec. 13-14; see Tr. I, at 32, 86-88.) Though no such exaggerations appear in the testimony at the point in the transcript referenced in the decision, the judge attempted to augment her credibility finding by referring to a hearsay medical report sent to, but never relied on by the § 11A examiner in reaching his opinion. This hearsay document suggested a different proximity to the stabbing. (Dec. 14.)
B. EXACERBATING INCIDENTS
3. SQUIRT GUN INCIDENT
After returning to work in May, 1992, the employee claimed three other incidents exacerbated his condition and confirmed his fear of violence in the schools. (Tr. I, at 51-53.) The first of these events occurred when he was assigned to "hall" duty to maintain calm between classes. For disciplinary reasons, the employee and a guidance counselor had to escort a student out of the school. (Tr. I, at 51-52; Tr. III, at 14-18.) The student pulled out a toy squirt gun, pointed it and threatened, "Bang, you're dead." (Dec. 19-21; Tr. I, at 51-53; Tr. III, at 15.)
Once again the judge seemed to accept that the incident occurred but fixed on minor discrepancies. She discredited the accuracy of the employee's reported distance from the student with the squirt gun, the exact wording of the threat and whether or not the employee ducked when pointed at. (Dec. 20-22; see Tr. III, at 14-23.) She found that the employee's version of the incident differed from that of other witnesses and also from that in another apparently non-evidentary medical report that had the employee actually squirted with water from the gun. (Dec. 19.) Finally, the judge seemed impressed that the guidance counselor involved considered the incident merely inappropriate despite the employee's having felt threatened thereby. (Dec. 20-22.)
4. FIRE INCIDENT
The next event claimed to be exacerbating occurred in May, 1992 when the principal extinguished a small fire, announced an evacuation and sounded the school fire alarm. (Dec. 24; Tr. I, at 52-53, 123.) The employee described this event as "another violent situation that registered up in my brain." (Tr. I, at 53.) The judge disagreed and found that from her perspective, "this does not rise to the level of a violent situation." (Dec. 24.)
5. DISRUPTIVE CLASS
The employee cited a final May, 1992 incident in support of his claim. He was asked to substitute for another teacher. When the class became unruly he could not control it because the sheer need to confront the students now terrified him. (Dec. 24; Tr. I, at 53-55.) According to the decision, so upset did he become, that he hyperventilated and had to turn away until another teacher quieted the class. (Dec. 25; Tr. I, at 54.) The judge stated she could not find that "the incident demonstrates disability without independent evidentiary support", ignoring or forgetting that the only medical evidence in the case provided just such support. (Dec. 25.)
The judge concluded that based upon these "documented inconsistencies in the record" and "the evidence as whole", the employee was not credible. On this basis, the judge rejected the post traumatic stress disorder diagnosis and the uncontradicted opinion of Dr. Land because it was based on an erroneous history. (Dec. 27-28.)
C. DISCUSSION
On the October 17, 1991 injury date, § 1 (7A) as amended by St. 1985 c. 572, § 11 and St. 1986 c. 662, § 6, provided that mental or emotional disabilities are compensable if a significant contributing cause was an event or a series of work events. SeeTaylor v. Brockton Hosp., 2 Mass. Worker's Comp. Rep., 304, 306 (1988). An expert opinion is generally required in a mental injury case because the etiology, nature and extent of the mental disability is rarely a matter of general human knowledge and experience.Lavoie v. Westfield Pub. School Syst., 7 Mass. Worker's Comp. Rep. 77, 81 (1993); Waltz v. Colonial Gas Co., 2 Mass. Worker's Comp. Rep. 151, 153 (1988); see Josi's Case, 324 Mass. 415, 417-418 (1949). Compare Lovely's Case, 336 Mass. 512, 516 (1957). The burden of introducing expert evidence of disability, its extent and its relatedness to work rests with the employee in order to establish the essential facts necessary for payment of compensation. See Sponatski's Case, 220 Mass. 526, 527-528 (1915); Waltz, supra at 153.
Section 14 of St. 1991, c. 398, substituted the word "predominant" for a "significant" contributing cause. Under, St. 1991, c. 398, § 106, the amendment to § 1 (7A) is substantive and applies prospectively only to injuries after December 23, 1991.
Dr. Land's § 11A medical opinion was the only medical evidence in this case and stands uncontradicted. Although the probative value of the expert testimony is for the judge, uncontradicted medical evidence concerning a subject which is beyond her common knowledge and experience may not be rejected if based on a proper foundation, unless sound reasons for its rejection are stated in the decision. See Rennie's Case, 357 Mass. 640, 644 (1970); Galloway's Case, 354 Mass. 427, 431 (1968). Disbelief of an employee's testimony concerning facts upon which an expert relied in formulating his opinion would be a rational basis for such disregard. Haywood v. Town of Wellesley, 4 Mass. Worker's Comp. Rep. 234, 237 (1990). But slight factual errors will not suffice to defeat an expert's opinion. Barbieri v. Johnson Equip., 8 Mass. Worker's Comp. Rep. 90, 94 (1994); L. Locke, Workmen's Compensation § 517 (2d ed. 1981); see LeBlanc v. Ford Motor Co., 346 Mass. 225, 232 (1963). Even where facts underlying a physician's opinion are discredited, a party may rehabilitate that opinion in a deposition by inquiring whether the doctor's expert opinion would change or be affected after consideration of different facts. Barbieri, supra at 94; see LeBlanc, supra at 232; see DeMatteo v. Dagget, 341 Mass. 251 [ 341 Mass. 252], 261 (1960).
The judge correctly stated that an expert opinion must be based on a proper evidentiary foundation. (Dec. 27, citingScheffler v. Sentry Ins., 7 Mass. Worker's Comp. Rep. 219, 226 (1993), aff'd Scheffler's Case, 419 Mass. 251, 257-259 (1994.) And as required, the judge gave reasons why she rejected the uncontroverted medical opinion of Dr. Land. Galloway's Case, supra at 431. However, the reasons are legally unsupportable.
The judge did not find the precipitating events that resulted in the diagnosis of post traumatic stress disorder did not happen. Rather, she relied on de minimus discrepancies between the employee's version of the events and that of other witnesses to find that the employee was not credible and that his reactions were exaggerated. (Dec. 9, 27.) On this basis, she discounted and eventually rejected Dr. Land's opinion. (Dec. 8-9, 27-29.)
Although the various accounts, precise wording and details of each event were not identically reported by each witness, the causation opinion of Dr. Land is not invalidated on this record. The judge ignored Dr. Land's deposition testimony wherein alternative hypothetical questions, inclusive of the discrepant facts, were posed. The doctor was asked whether his diagnostic or causal relationship opinion would change if the facts were as presented instead of as those he relied upon for his report. (Land Dep. 13-16, 19-23, 28-31, 37-38.) Dr. Land clearly and unequivocally stated that his opinions would remain the same even assuming the alternate histories. Id.
Dr. Land's opinion was taken by the insurer for purposes of cross examination. In deposition, despite presentation of variations in the history, the doctor adhered to his reported opinion. His opinion was reported twice. In 1992 the doctor wrote:
"Mr. Daly's disability is definitely the result of events occurring while working as a teacher for the city of Boston. The precipitating event (industrial accident) occurred on October 17, 1991 and was reinforced by a second event occurring on May 19, 1992. . . ." (Emphasis added).
Referring to the October 17, 1991 event in 1993 doctor was equally clear:
"In my opinion, Mr. Daly is significantly disabled as a result of this event." (Emphasis added.)
The issue to be decided was whether an event or series of events in the employment were a significant contributing cause of a mental or emotional incapacity so as to constitute a compensable personal injury under the Act. See G.L.c. 152, § 1 (7A), as it appeared in St. 1985, c. 572. Application of this legal standard requires the focus to be on the psychological effect an event or events at work had on the employee not on whether the judge or other witnesses perceived the events to be traumatic. SeeJosi's Case, 324 Mass. at 417-418; Lavoie, 7 Mass. Workers' Comp. Rep. at 81 (mental disability is rarely a matter of general human knowledge or experience). Because there is no requirement under § 1 (7A) that a precipitating event(s) be objectively traumatic, severe, or unusual, as long as a particular employee succumbs, a judge may not, as occurred here, supplant her own appraisal of an event or events to determine whether the standard has been met. See Robinson's Case, 416 Mass. 454, 459 (1993).
We find that the judge's rejection of Dr. Land's uncontradicted medical opinion is without adequate legal support. On this record, a compensable mental injury within the meaning of G.L.c. 152, § 1 (7A) was established. (See supra n. 6). Accordingly, because the evidence and all rational inferences can support only one conclusion, we reverse the finding on liability. SeeMessersmith's Case, 340 Mass. 117, 120 (1959); Roney's Case, 316 Mass. 732, 739-740 (1944). We vacate and remand the case for a determination on the extent of incapacity based solely on evidence properly admitted. As we have reversed on liability, on remand, the judge may want to reassess her ruling on § 8 (2)(c). We need not address the issue here.
So ordered.
_______________________ Susan Maze-Rothstein Administrative Law Judge
_______________________ Edward P. Kirby Administrative Law Judge
Filed: March 27, 1996
I would recommit for further findings of fact and conclusions of law rather than reverse and award for two reasons. First, the judge made a specific negative credibility assessment of the employee. Second, the medical opinion is not so clear and strong that it compels an award when the proper legal standard is applied.
It is sacrosanct black letter law that the credibility of lay witnesses is within the sole province of the administrative judge.Vero v. Paul A. Dever State School, 9 Mass. Workers' Comp. Rep. 36, 39 (1995). The judge here made several subsidiary credibility findings adverse to the employee. See Dec. 6-7 (disregarding employee's testimony that he did not read the Agreement to Extend the Pay Without Prejudice Period). The judge specifically found: "I do not find the employee's testimony to be entirely credible or persuasive." (Dec. 8.) She further decided: "I find most of the employee's testimony was not reliable. For example, cross-examination revealed that the employee exaggerated incidents of alleged violence." (Dec. 9.)
The judge based her disregard of the medical opinion on the "fact" that it was based upon an inaccurate history. (Dec. 14.) She wrote: "To the extent that the Impartial Examiner and other physicians relied on incredible facts furnished by the employee, the opinions will be discounted." (Dec. 8.) "Thus, the opinions of the examining physicians are called into question as being based on the employee's version of these events rather than on actual events or the facts as I ultimately found. An examination of the employee's testimony regarding incidents of violence and incidents of disarming students demonstrates the discrepancy between the actual facts and the facts as presented by the employee, upon which the doctors relied." (Dec. 9.)
After discussing the instances of "exaggeration", the judge wrote: "This report, which the Impartial Medical Examiner reviewed and relied upon in reaching a diagnosis and opinion, reflects the employee's tendency toward exaggeration which was exposed in cross-examination." (Dec. 12.) In addition, she found the employee's testimony about his relationship with the murdered student to be inaccurate. She wrote: "I find that the employee's presentation of an appearance of a relationship, as he suggested on direct examination, cannot be credited. I find that he did not have a relationship with Mr. Allen, but attempted to embellish his incidental relationship to Kingsley Allen in order to exaggerate or suggest a possible impact this death could have had on him." (Dec. 14.)
Upon recitation of further testimony the judge concluded: "Two questions arise when reviewing this testimony; both go to the issue of the employee's credibility, not only as a witness, but as a patient." (Dec. 20.) "From this I conclude that the employee did not accurately report the incident to the examining psychiatrist." (Dec. 21.) The judge decided that history Daly gave to physicians was unreliable. (Dec. 21.)
After a detailed review of all the conflicting evidence, the judge concluded: "These points again bring me back to the issue of credibility." (Dec. 21.) She specifically discredited Daly's version of each contested event (Dec. 21-22) and then decided: "these constant and repeated differences as reported by Mr. Daly and his examiners, as compared to other disinterested witnesses to the same events emphasize my inability to find his testimony reliable or credible." (Dec. 22.)
In making her credibility assessment, the judge also considered the employee's disciplinary record and the fact that it was inaccurately reported to the impartial physician. (Dec. 22.) The judge found that the employee had a history of secondary gain behavior of which his physicians were unaware. (Dec. 23-24.)
The judge's decision is replete with comments that the employee's history given to the medical experts was "disingenuous." (Dec. 25.) The judge concluded that: "I find that based upon all of the documented inconsistencies in the record, as well as the evidence as a whole, that I do not credit the employee's testimony or the opinions and conclusions of examining physicians that are based solely upon the employee's representation of facts. . . . Having found that the employee is not credible, the medical opinions which are based on the employee's history must be rejected . . . Having found numerous discrepancies in the testimony of the employee in the history furnished his examiners, including Dr. Land, the Impartial Medical Examiner, the obvious conclusion is that the diagnosis of Posttraumatic Stress Disorder is based upon an erroneous history and is therefore rejected. Based on these findings of facts . . . I reject the diagnosis of Posttraumatic Stress Disorder. The October 17, 1991 incident was not as the employee would have me and others believe. . . . In this case I find the employee not to be credible and the facts used in the diagnosis of Posttraumatic Stress Disorder not to be supported by the evidence." (Dec. 27-28.)
The majority opinion correctly takes the position that it was arbitrary and capricious for the judge to reject a medical opinion because of discrepancies in the history which the doctor testified were inconsequential. However, that does not mean that the reviewing board can overcome the judge's express finding of incredibility. The proper result in such circumstance is to give legal instructions to the judge and remand for factual findings consistent with the applicable law.
As the reviewing board said in Lavoie v. Westfield public School Systems, 7 Mass. Workers' Comp. Rep. 77, 80-81 (1993), the causation decision in mental injury cases often depends on credibility determinations. Causation is an issue of fact on which the employee has the burden of proof. The decision as to whether the employee has met his burden of proving causation is uniquely within the province of the administrative judge.
I disagree with the majority opinion that the medical evidence compels an award for the employee. The impartial medical opinion was largely based on the employee's subjective complaints (Dep. 43, 48.), the credibility of which was for the administrative judge to determine. See Brandao v. Joseph Pollack Corp., 9 Mass. Workers' Comp. Rep. 74, 75 (1995) ("The judge did not find the employee to be a "believable witness," and her credibility finding is final. Frazier v. Cumberland Farms, 7 Mass. Workers' Comp. Rep. 36 (1993) It is not within this board's authority to substitute its judgment.").
Even if the judge could not disregard the medical opinion for the some of the reasons listed in the decision, the causation evidence fails to clearly compel her to conclude that the employee proved liability. Section 1 (7A) required the employee to establish that a significant contributing cause of his mental or emotional disability was an event or series of events occurring within the employment. The impartial physician was never asked his opinion about the extent to which work participated causally in producing the psychiatric disability. Furthermore, even his ordinary causation opinion was somewhat ambiguous.
When confronted with the accurate history, the impartial medical examiner did not render a crystal clear causation opinion. He responded: "I think I'd have to see what — see the witness' report, or really try to look into that further." (Dep. 6.) When given alternate facts and asked if his diagnosis would change, the doctor testified: "I think my answer at this time is that I don't know." (Dep. 8.) "Again, I'd have to think about it." (Dep. 9.) When asked whether the employee's forthcoming response to questions was consistent with posttraumatic stress disorder, the psychiatrist testified, "It can be." (Dep. 11.) Daly demonstrated upon examination only two out of the three diagnostic criteria. (Dep. 11-12.) When given a different history of Daly's contact with the murder victim and asked if his diagnosis and opinion would change, the doctor responded, "I don't think so." (Dep. 14.) On another point of incorrect history, the doctor made it clear that his diagnosis would not change. (Dep. 16.) But the doctor found it "difficult to say" whether Daly's escorting disruptive students was consistent with the diagnosis. (Dep. 17.) In other words, at various points in his deposition, the doctor shifted degrees of certainty in his causation opinion. For testimony indicating certainty, see Dep. 20, 22-23, 31-32, 35, 38, 41, 50.
The probative value of this medical evidence is a question of fact for the administrative judge. See Robinson v. Contributory Retirement Appeal Board, 20 Mass. App. Ct. 634, 639 (1985). In the workers' compensation system, the administrative judge is the trier of fact, not appellate judges. It is solely within the scope of the administrative judge's authority to resolve a disputed issue of causation in fact. G.L.c. 152, § 11C.
Prior to the 1991 amendment to G.L.c. 152, § 11C, the Reviewing Board was permitted to weigh evidence but not to review determinations by the administrative judge who conducted the hearing regarding credibility of witnesses who had given testimony. Workers' Compensation Advisory Council Minutes of March 29, 1991 indicate that the change in the standard of review was intended to reverse the impact of the Lettich decision by limiting the Reviewing Board's scope of review. Bills with similar intent had been filed in the past (Senate 74, 76, 97 and 1894 and House 1418 and 3659 of 1990).
The 1991 amendment to § 11C prohibits the Reviewing Board from weighing evidence or acting as a fact finder. This limited scope of review eliminates the second bite of the apple which the parties previously had before the Reviewing Board. Prior to the 1991 amendment, the Reviewing Board functioned in some respects as a second trial court rather than a strictly appellate court. The 1991 amendment clearly delineates the role of the Reviewing Board as an appellate body.
The function of the Reviewing Board is not to judge the facts of the case but to review for hearing error.
Here the administrative judge made a factual conclusion that she was unpersuaded by the only psychiatric evidence in the case; therefore the employee failed to meet her burden of proving causation. Although we have the power to vacate this factual judgement for being arbitrary or capricious or contrary to law, this record provides no support for reversing it and finding the contrary fact. The majority exceeds the authority of the reviewing board granted by G.L.c. 152, § 11C by making a factual determination of causation in this case.
The appeal has shown harmful error, but that provides no justification for the reviewing board to usurp its statutory limitations and become a fact-finder. The liability determination should be vacated and the case remanded for further findings of fact on the liability issue as well as the extent of incapacity.
_______________________ Suzanne E.K. Smith Administrative Law Judge