Opinion
BOARD No. 35668-91
Filed: December 19, 1996
REVIEWING BOARD DECISION
(Judges Fischel, Kirby and Wilson)
APPEARANCES:
Joseph M. Burke, Esq., for the employee.
Cynthia Ittleman, Esq., for the self-insurer at hearing Brian T. Mulcahy, for the self-insurer on review.
The employee appeals from a decision in which the administrative judge denied his claim for weekly incapacity and medical benefits, based on a psychological injury alleged to have occurred as a result of events at work in 1993. The employee had suffered an assault and battery at work in 1991, for which he had received compensation benefits. We affirm the judge's conclusion that the employee failed to prove a psychological recurrence injury of that 1991 work injury, as it is based on clear findings adopting a medical opinion that there was no causal relationship between the 1991 attack and the employee's 1993 incapacity. However, where the judge found that a series of events had occurred in 1993, we must recommit the case for the judge to make specific and definite findings as to whether the 1993 events, in and of themselves, constituted a work-related incident causing a compensable psychological injury.
On January 11, 1991, the employee was assaulted and battered by a co-worker, Roger O'Neil, while performing his duties as a court officer in the Plymouth District Court. (Dec. 4.) The employee suffered physical injuries which incapacitated him for a number of months. (Dec. 4-5.) The self-insurer paid § 34 temporary total incapacity benefits until February 10, 1991 on a without-prejudice basis for neck, left eye, left cheek, scalp, and left thigh injuries of a moderate nature. (Dec. 3, 6.) On February 26, 1991 the employee started treatment for psychological problems diagnosed as post traumatic stress syndrome (PTSD). (Dec. 5) After a successful regime of desensitization treatment to reduce the employee's anxiety about returning to work, the employee returned to part time work by mid or late March 1991. (Dec. 6.) As his diagnosis went into remission, the employee returned to work on a full time basis. (Dec. 6.) He worked for the next two and one half years without symptoms of PTSD reappearing. (Dec. 6.) In the spring and summer of 1993, a series of events occurred out of which the instant claim arose, and the employee went out of work. (see footnote 2, infra)
The judge found that the co-employee had been convicted of assault and battery. (Dec. 6.)
The three medical experts who testified at hearing agreed that the January 11, 1991 incident at work was causally related to the onset of post traumatic stress syndrome in 1991. (Dec. 5, 6.)
The employee filed claim for § 34 benefits from July 23, 1993 and continuing, and § 30 medical benefits for psychological treatment. (Dec. 2.) The self-insurer denied the claim, which was also denied at the July 15, 1994 conference. (Dec. 2-3.) The parties opted out of the § 11A impartial examination pursuant to 452 CMR 1.10(7). (Dec. 3.)
In a decision filed on September 26, 1995, the judge found that the employee's claim consisted of two sets of incidents, with one occurring on January 11, 1991, and the other being a series of claimed incidents in the spring and early summer of 1993. (Dec. 5, 6.) The judge found that the employee had sustained an industrial injury at work on January 11, 1991, and, inherent in other findings, found that the 1991 physical assault at work did cause PTSD. (Dec. 4, 12.) It appears that the judge found the occurrence of the three incidents in 1993. (Dec. 6, 7.) The administrative judge noted that the employee left work early on July 23, 1993, and claimed compensation as a result of these incidents, based on his alleged fear of going to work, sense of being abandoned, and alleged work related depression. (Dec. 7-8.) The judge found that the employee started psychological treatment again in August 1993 because he was having nightmares and couldn't sleep, had lost his appetite, and could not concentrate enough to read anymore. (Dec. 8.)
The judge found that all three medical experts whose opinions were in evidence diagnosed post traumatic stress disorder caused by the 1991 work injury. (Dec. 5, 6) The judge found that beginning February 26, 1991 the employee began treating for psychological problems with Dr. Albert R. Jurgela, but made no findings as to whether such medical treatment was reasonable and necessary. The self-insurer had denied liability for psychiatric injury, and the employee sought payment of medical bills. (Dec. 2, 3.) It is unclear from the decision whether the employee's 1991 psychological treatment was part of his instant claim for § 30 medical benefits. We leave it to the parties and judge to address this issue on recommittal.
While there is some interweaving of references to the employee's "allegations", at several points the judge explicitly finds that the incidents occurred. (Dec. 6, 7) The administrative judge found that the chief justice of the Brockton court told the employee that he should obtain a transfer to the Fall River District Court to protect himself against the assailant co-worker, who was still employed in the Plymouth County District Court Department. (Dec. 6, 7; Tr. 34.) Second, the administrative judge found the employee was accused by a co-worker of having made a racial slur, and that the employee was bothered by the accusation. (Dec. 7.) Third, the administrative judge found that a Plymouth judge accused the employee of stealing compensatory time by staying at the courthouse beyond the 4:30 pm quitting time, when the employee felt he needed to stay in order to ensure that prisoners were transferred back to the Plymouth County House of Correction after court proceedings ended at 4:30 pm. (Dec. 7.)
He adopted the opinion of the self-insurer's expert physician, Dr. Peter Strang, that the 1993 incidents at work did not set off a psychological reaction causally related to the 1991 assault and battery. (Dec. 5, 6, 12) The judge recited the opinion of Dr. Strang that the employee suffered from a moderate depressive syndrome causally related to the work-related incidents in 1993. (Dec. 11, 13.) The judge adopted the opinion of the employee's treating physician that the employee could return to part-time work, advancing to full-time on a phased-in basis. (Dec. 9, 10, 13.) The judge concluded that the employee had failed to prove an aggravation of his 1991 causally related post traumatic stress disorder, and that, although "there may have been some work related event or series of events [which] caused the employee's current psychological condition," there was no competent evidence of those alleged events. Therefore, the judge denied and dismissed the employee's claim. (Dec. 12-13.)
While it can be inferred from the judge's findings that he adopted the medical opinion of Dr. Strang as to the causal relationship of the employee's psychological condition in 1993, (Dec. 12, 13.) this issue must be clearly addressed on remand.
The employee argues that the judge's denial of this claim was inconsistent with his subsidiary findings. We agree. As noted, the judge found the occurrence of three work incidents in 1993. (Dec. 6, 7) The judge concluded that those work-related events in 1993 might have caused the employee's psychological incapacity, but denied and dismissed the claim because he found "no substantive nonhearsay or circumstantial evidence that would enable the employee to overcome his burden of proof . . . such as a work performance evaluation of him, witnesses, or court employee transfer records." (Dec. 13.) Having already found the events to have occurred based on the testimony before him, it was erroneous to suggest that other proof of the occurrence of events was required.
Nor is there any issue as to purported hearsay. The evidence of the racial slur accusation was not hearsay. (Tr. 56, 65.) The employee's testimony describing the judge's act of accusing him of stealing compensation time was not hearsay. (Tr. 30-32.) The employee's testimony regarding the First Justice's expression of concern for the employee's safety was not challenged by way of objection, and therefore constituted competent evidence, notwithstanding its hearsay character. (Tr. 34.)
The uncontroverted medical opinion was that the employee suffered from work related psychological conditions in 1993. A judge must give reasons for disregarding uncontroverted medical opinion. See Fowler v. N.E. Cartage Corp., 9 Mass. Workers' Comp. Rep. 463, 465 (1995); Galloway's Case, 354 Mass. 3427, 431 (1968).
Dr. Strang, the self-insurer's expert, causally related a moderately severe depressive syndrome to the 1993 incidents. (Dec. 11). Dr. Albert Jurgela, the employee's doctor, diagnosed the employee's condition in 1993 as post traumatic stress disorder reactivated by incidents in 1993. (Dec. 9) Dr. Elizabeth Ann Ellis, who also examined on behalf of the self-insurer, diagnosed post traumatic stress disorder with major depression causally related to incidents in 1993 and 1991. (Dec. 10)
In view of the judge's subsidiary findings, we cannot be at all certain that his denial of the claim for incapacity benefits has a sound basis in the law. See Scheffler's Case, 419 Mass. 251, 256 (1994) (judge's conclusions must be the product of reasoned decision making); Praetz v. Factory Mutual Engineering and Research, 7 Mass. Workers' Comp. Rep. 45, 47 (1993) (decisions cannot stand in absence of proper foundation for conclusions therein). This is, therefore, an appropriate case for recommittal. See Crowell v. New Penn Motor Express, 7 Mass. Workers' Comp. Rep. 3, 5 (1993).
On recommittal, the judge should make findings pursuant to § 1(7A), as most recently amended. Because in this case the judge found there had been no recurrence of the 1991 psychological injury in 1993, the remaining question is whether the 1993 events found to have occurred constituted a new psychological injury in 1993. Where a claimed emotional injury arises directly out of workplace events occurring after December 23, 1991, the judge must determine whether the work events in 1993 were the predominant contributing cause of the psychological condition. We direct the parties to § 1(7A) for the remainder of the needed analysis. See Walczak v. Massachusetts Rehabilitation Commission, 10 Mass. Workers' Comp. Rep. ___ (June 25, 1996). In the event that the judge on recommittal finds that the incidents found to have occurred in 1993 caused the employee to sustain a compensable psychological injury, he will need to make more detailed findings regarding the extent of the employee's incapacity. The judge's final general finding, that "the employee is capable to (sic) returning to his duties on a phased in basis, based on the opinion of Dr. Jurgela" (Dec. 13), merely introduces the incapacity analysis that must follow a finding of an industrial injury. SeeScheffler, supra; Frennier's Case, 318 Mass. 635, 639 (1949). Moreover, the opinion of Dr. Jurgela thus relied upon was that effective with his reports dated December 7, 1994 and January 31, 1995, the employee could return to modified work, in a different setting, beginning half a day per week, with gradual increases to two half days a week, and eventually to a full day and a full week. (Dec. 9-10) Opinions as to the employee's work capacity beginning in December 1994 cannot form an evidentiary basis for evaluation of the claimed incapacity beginning on July 23, 1993. (Dec. 2) Nor does reliance on this opinion address the issue of any employee's entitlement to § 35 partial incapacity compensation benefits during the period of phased in return to full work, and thereafter. The judge on remand must make findings as to the employee's incapacity status from the onset of his claim on July 23, 1993, as well as on his claim for medical benefits for psychological injury. (Dec. 2) So ordered.
_____________________________________ Carolynn N. Fischel Administrative Law Judge
_____________________________________ Sara Holmes Wilson Administrative Law Judge
____________________________________ Edward P. Kirby Administrative Law Judge
Filed: December 19, 1996