Opinion
BOARD No. 60282-85
Filed: May 7, 1996
REVIEWING BOARD DECISION
(Judges McCarthy, Fischel and Wilson)
APPEARANCES
James J. Carrigan, Esq., for the employee
Daniel Napolitano, Esq., for the insurer
The employee appeals from a decision denying his claim for § 34A permanent and total incapacity benefits. The judge's finding that the causal chain between the industrial injury and incapacity was broken by an incident while the employee was performing yard work at home, as well as her rejection of the only expert medical opinion in the case, make recommittal of the case for further findings the appropriate disposition.
Edward Doten was injured when a truck he was driving in the course of his employment overturned on July 29, 1985. The employee was admitted to Union Hospital for a week, where he was treated for a dislocation of his right hip, and a fracture of the spinous process of the mid-back at T7-8. (Employee's ex. 4.) The employee was unable to return to work after his discharge due to pain in his buttocks, right hip and lower back and was voluntarily paid temporary total incapacity benefits by the insurer. On May 10, 1990, an administrative judge, after a conference on the insurer's complaint to terminate or modify, authorized the discontinuance of temporary total incapacity benefits under § 34 and the commencement of § 35 partial incapacity benefits, based on a weekly earning capacity of $254.14. The employee appealed the order, but after he exhausted his aggregate §§ 34 and 35 benefits withdrew the appeal. (Dec. 2-3.)
The maximum weekly benefits under §§ 34 and 35 fully paid, the employee filed a claim § 34A permanent and total incapacity benefits, as well as § 30 medical benefits. Following a November 4, 1991 conference, an administrative judge denied the § 34A claim, but ordered payment for treatment at New England Rehabilitation Hospital. The employee asserted his right to a hearing de novo. (Dec. 2.)
In the meantime, the employee underwent in-patient physical therapy at the New England Rehabilitation Hospital in January 1992. As a result of his treatment there, his medical condition improved. However, in June 1992, the employee experienced a medical deterioration after doing some yard work at home. The employee was admitted to the Union Hospital, complaining of back pain and numbness in his lower legs. He also experienced bladder dysfunction and required the use of a catheter. While in the hospital he had a major depressive episode, and attempted suicide by hanging. Since being released from the hospital the employee's mobility has been significantly impaired. (Dec. 4-5.)
The employee testified at the hearing and his treating neurosurgeon, Dr. Sidney Paly, M.D., was deposed. The insurer offered no expert medical evidence. Dr. Paly diagnosed the employee as suffering from a significant neurological deficit, due to severe nerve injuries in his lower back. Upon examination, the employee complained of severe pain between his shoulder blades, occasionally radiating into his sternum. Dr. Paly opined that the employee was at a medical end result and that he was permanently and totally disabled. The doctor causally related the employee's permanent and total medical disability to the 1985 industrial accident. (Dec. 5; Depo. 9-12.)
The employee's psychiatrist, Dr. J. Andrew Rydzewski, also testified via deposition. Since Dr. Rydzewski could not render an opinion as to whether the employee's psychological condition was disabling, we will not review that component of the employee's case. (Dec. 5-6.)
After a 1972 industrial injury, Dr. Paly performed a fusion of the employee's L4-5, and L5-S1 disc spaces. Dr. Paly stated that the fusion was no longer intact, due to a pseudoarthrosis at L4-5. However, he further noted that objective findings demonstrated that the present nerve injuries were based at a level above the L4-5 site of the 1972 problem. (Depo. 6-8.)
The judge rejected Dr. Paly's opinion, her reason being that the employee was not a credible witness. The judge stated,
Significantly, I find that the employee was less than candid to the physicians upon whose testimony he now relies. . . . Dr. Paly was given an history of the employee's injuries; the employee failed to tell the doctor that he was injured doing yard work only a month prior to the examination. Dr. Rydzewski was told that the employee "tripped and fell" while doing yard work; the employee testified at the hearing that he was merely holding a bag when he experienced muscle spasms. The employee testified that he had experienced no back pain since 1972 prior to his industrial accident and "did not remember" any medical treatment for low back pain in April 1985. In the face of evidence which casts considerable doubt on the employee's credibility, I find that the employee's subjective complaints of pain are greatly exaggerated. (Dec. 7-8.)
When asked at the hearing about some treatment for lower back pain some months prior to the accepted industrial injury the employee responded that he did not remember any such treatment. (Dec. 3.)
The judge also questioned the employee's candor in describing his ability to walk and his frequency of wheelchair use to his psychiatrist. (Dec. 7.) Based on these credibility findings, the judge rejected the medical opinion, and denied and dismissed the employee's claim for § 34A benefits. As a further basis for denying the claim, the judge determined that the yard work incident in 1992 broke the causal link between the employee's present incapacity and the 1985 industrial injury. (Dec. 8.)
The employee argues that the judge's decision is arbitrary and capricious in that the judge rejected the only medical evidence in the case, the opinion of Dr. Paly, that the employee was permanently and totally disabled. The employee further argues that the judge's determination that the yard work incident broke the causal chain was contrary to law.
We look first at the judge's determination that the yard work incident broke the causal chain between the employee's industrial injury and his present incapacity. The circumstances in which a subsequentnon-work-related incident, causing a recurrence or aggravation of a work-related injury, can break the chain of causal relation between an employee's incapacity and an industrial accident are fairly well defined. These cases should not be lumped into the successive insurer rule. That doctrine establishes that when "a second period of disability follows an event which arose out of and in the course of employment then the insurer on the risk at the time of the second injury is liable to pay compensation for an incapacity following that injury where there is a causal connection between that injury and the incapacity[,] even though the earlier injury may have been . . . the major contributing cause of the disability." Twomey v. Greater Lawrence Visiting Nurses Assoc., 5 Mass. Workers' Comp. Rep. 156, 158 (1991). See Morin's Case, 321 Mass. 310, 312 (1947); Rock's Case, 323 Mass. 428, 429 (1948). So when the last contributing event occurred at work, there is no apportionment. The last insurer is responsible to pay all benefits. Thenon-work-related aggravating incident causing a further period of incapacity, is governed by a different rule:
[I]f the [non-work-related] activity is a normal and reasonable one and not performed negligently, the insurer who paid compensation during the first period of disability may be responsible to pay the second disability if the fact finder is satisfied that the second disability period is the natural and proximate result of the original injury.
Twomey, supra. In Twomey, we affirmed the judge's conclusion that an incident which occurred while the employee was leaning forward playing cards at home caused an aggravation of a work-related injury. The judge further concluded, and we agreed, that the causal relation continued between the work injury and the incapacity ensuing from the card-playing incident, i.e. that the intervening event did not break the causal chain. Id. at 158-159. Laurence Locke stated in his treatise that, "If an employee engages in reasonable and normal movements or activities and thereby reactivates or aggravates a compensable injury, the insurer will be obliged to pay compensation for the consequences." L. Locke, Workers Compensation, § 224, 2nd ed. (1981). See also Davis' Case, 304 Mass. 530 (1939) (insurer still liable when employee's use of water reactivated industrial injury of dermatitis); Gulczynski v. Granada Hospital Group, 7 Mass. Workers' Comp. Rep. 151, 152-153 (1993), aff'd after remand, 9 Mass. Workers' Comp. Rep. 449 (1996) (remanding case for a determination of whether leg shaving, which caused a skin infection, was reasonable or necessary activity such that it did not break causal chain).
We must therefore remand this case for the judge to make further findings of fact. Specifically, the judge must consider whether the employee's doing yard work was normal and reasonable activity, and if so, whether there was any evidence that the employee performed the yard work negligently. If she determines that the yard work does not break the causal chain she should go on to make specific findings on whether the medical evidence supports a finding of causal relation. If the judge finds a break in the causal chain, the case is over and the employee loses.
We next address what seems to be the linchpin of the judge's decision, namely her credibility findings based on omissions and inconsistencies in the employee's testimony about the yard work and other historical background related to his medical condition. It is hard to see how the judge's findings that 1) the employee did not tell Dr. Paly of the yard work incident, and 2) the employee gave his psychiatrist a different account of the yard work incident, impact on the probative value of the medical opinion on causal relation. Dr. Paly learned about the yard work at the deposition and said it caused the condition to worsen. If the causal chain is not severed by the yard work, the worsening consequences of it are compensable. Likewise, the judge's credibility finding based on the employee's failure to remember an incident with his back a few months before his 1985 industrial accident is of no consequence to the medical opinion, since this accident was governed by the Act as it stood in 1985, when the "as is" doctrine was the law of the day. Finally, the judge's credibility finding, that the employee gave a different account of the extent of his wheelchair use to his psychiatrist than testified to at hearing, we read as having relevance only with respect to the judge's assessment of the extent of incapacity. Disbelief of the employee's testimony regarding the extent of his incapacity could be a rational basis for the judge's disregard of the medical opinion. See McCominsky v. Lahey Clinic Medical Center, 8 Mass. Workers' Comp. Rep. 415, 418 (1994);Haywood v. Town of Wellesley, 4 Mass. Workers' Comp. Rep. 234, 237 (1990).
Again, we are concerned here only with Dr. Paly's opinion.
However, unlike McCominsky and Haywood, supra, in the instant case Dr. Paly testified to a number of objective medical signs of impairment. His diagnosis of significant neurological deficit, due to a severe lower back injury, was based on finding in examination that the employee had atrophy of the left thigh muscle group, and associated knee jerk reduction, which indicated nerve injuries above the area of the employee's 1972 fusion. (Depo. 7-8.) There was also mobility or pseudoarthrosis at the upper end of the L4-5/L5-S1 fusion, indicating that the fusion at that point was no longer intact. (Depo. 8, 15.) The employee was also experiencing bladder problems. (Dec. 5; Depo. 16.) If the judge discredits Dr. Paly's testimony regarding these objective findings, she should give specific reasons therefor on recommittal, inasmuch as they serve as the basis for his uncontroverted medical opinion on a matter beyond the common knowledge and experience of the finder of fact. See Bubar v. Academy Manor Nursing Home, 4 Mass. Workers' Comp. Rep. 185, 188 (1990); Galloway's Case, 354 Mass. 427, 429 (1968).
We recommit the case for further findings in the two areas discussed in this opinion.
So ordered.
_____________________________ William A. McCarthy Administrative Law Judge
_____________________________ Carolynn N. Fischel Administrative Law Judge
_____________________________ Sara Holmes Wilson Administrative Law Judge
Filed: May 7, 1996