Opinion
BOARD No. 06143194
Filed: August 29, 1997
REVIEWING BOARD DECISION
(Judges Fischel, Wilson and Levine)
APPEARANCES
Richard J. Hayes, Esq., for the employee.
Joseph S. Buckley, Esq., Jr., for the self-insurer.
The employee appeals from a decision in which an administrative judge denied his claim for workers' compensation benefits for a near-fatal onset of a rare disease that the employee alleged to be causally related to his work as a construction inspector for the M.B.T.A. Among the many issues the employee argues on appeal, we find one that has merit. We recommit the case to the judge for him to rule on the employee's motion to submit additional medical testimony based on the complexity of the medical issues involved in this case.
The employee began working for the M.B.T.A. in 1978. (Dec. 3.) For a little over a year as of November 1994, he had been overseeing the relocation of electric cables on the train tracks between the Quincy Adams and North Quincy stations. Id. In the course of his work along the tracks, he would come into contact with puddles of water accumulated from rain. Id. He would observe cats, rats, opossums and other animals along the tracks when he was working at night. Id. On November 16, 1994, the employee left work at 6:00 a.m. experiencing pain in his eyes, which had been bloodshot for about a week. (Dec. 3-4.) When he woke the next morning he could barely see, and he called in sick. (Dec. 4.) When his brother and father came to his home that afternoon, they found the employee lying at the foot of the stairs. Id. They immediately took him to the emergency room at South Shore Hospital, where he was admitted in serious condition. Id. He was later transferred to Beth Israel hospital for treatment. Id.
The employee was found to be suffering from multisystem failures including renal, liver, and a host of other failures.Id. His condition initially was almost fatal, but gradually improved over a several weeks' stay in the hospital. Id. He remained on dialysis during December 1994 and into January 1995, when that treatment was terminated. Id.
The nature of the employee's illness was never determined.Id. The employee advanced the theory that he had contracted the rare infectious disease called leptospirosis by virtue of his exposure to animal droppings and urine contaminating the puddles and soil along the train tracks where the employee had been working. (Dec. 4.) The M.B.T.A. disagreed and resisted his claim for workers' compensation benefits, which was also denied at the § 10A conference. (Dec. 2.) The employee appealed to a hearing de novo. Id.
The employee underwent an impartial medical examination by a specialist in internal medicine, occupational and environmental health and infectious diseases pursuant to the provisions of G.L. c. 152, § 11A. (Dec. 4.) The doctor opined that the employee did not suffer from leptospirosis, but rather had probably contracted an acute bacterial or viral infection. The doctor opined that it was impossible to determine the exact source of the employee's illness, since no serological testing had been administered during the employee's hospitalization or soon thereafter. Since the microorganisms causing these sorts of diseases live everywhere, it was not possible to attribute the employee's condition to the work environment. (Dec. 5.) The judge found the impartial report and deposition testimony to be adequate, and denied the employee's motions to submit additional medical evidence. (Dec. 2.) The judge adopted the doctor's opinion that it was more likely than not that the employee contracted the disease in an environment outside of the workplace. (Dec. 5.) The judge therefore denied and dismissed the employee's claim for workers' compensation benefits. (Dec. 6.) The employee appeals to the reviewing board.
The employee's Motion to Submit Additional Medical Testimony, filed March 14, 1996, stated two reasons as its bases. The employee argued that the "impartial medical report is seriously deficient in that it fails to address numerous critical questions that must necessarily be resolved before decision in this matter can be had." We understand this as being the employee's argument that the report is inadequate under § 11A(2). This argument was rejected by the judge. (Dec. 2.) The employee also argued that "the medical issues in this matter are so complex that the submission of additional medical testimony would only serve to clarify the central issues crucial to a well reasoned determination of the matter to all parties." The judge made no ruling on this argument.
Section 11A(2) authorizes "the submission of additional medical testimony when such judge finds that said testimony is required due to the complexity of the medical issue involved. . . ." The employee had been treated at Beth Israel with the presumed diagnosis of leptospirosis. (Dep. 17.) The impartial physician stated at his deposition that this was an unusual disease that was rarely diagnosed. (Dep. 12.) The doctor had considered leptospirosis in differential diagnoses a dozen times, and had made the presumptive diagnoses maybe a couple of times, but had never confirmed a diagnosis. (Dep. 11-12.) His experience had been with mild cases, not the near-fatal type such as the employee's. Id. We think that it is particularly important for the judge to rule on the issue of medical complexity in such a case as this.
Therefore, we recommit the case to the judge for further proceedings in accordance with this opinion. So ordered.
_________________________ Carolynn N. Fischel Administrative Law Judge
_________________________ Frederick E. Levine Administrative Law Judge
_________________________ Sara Holmes Wilson Administrative Law Judge
Filed: Aug. 29, 1997