Opinion
BOARD No. 06275592
Filed: February 29, 1996
REVIEWING BOARD DECISION
(Judges Kirby, Maze-Rothstein and Smith)
APPEARANCES
Steven H. Kantrovitz, Esq., for the employee
Michael P. Mahany, Esq., for the insurer
The insurer appeals the decision of the administrative judge awarding the employee ongoing § 34 temporary total incapacity benefits. Because the decision fails to confront and determine key factual and legal issues in this pre-existing condition case, it is inadequate for appellate review. We therefore vacate and remand for further findings of fact and conclusions of law pursuant to G.L.c. 152, § 11C.
Carlos Figueroa worked as a general laborer for Sno-Man Corp., a paper bag manufacturer. Among his routine duties, Figueroa was responsible for preparing the paste solution used to seal the paper bags. On November 2, 1992, Figueroa prepared the solution for the next day. The following morning, a glue blockage in the paste pump caused operations to shut down for several hours. The president of the company, Michael Anton, assumed the blockage was due to Figueroa's negligence in preparing the glue. (Tr. 93.)
Figueroa traces his industrial injury to a series of events that followed that week. For three consecutive days, Mr. Anton blamed Figueroa for the glue blockage, threatened to fire him, and reminded Figueroa that his negligence cost the company over $1,600. (Dec. 6-7.) Mr. Anton then ordered Figueroa to work on Saturday to recoup the loss he caused. (Dec. 26-29.) Figueroa claims that as a result of these confrontations, he suffered increasing stress and tension.
Figueroa left work on Friday, November 6, 1992, at his regular time. He drove home and upon his arrival began to feel chest pains. His family wanted to take him to the hospital but he decided against it. Saturday morning, November 7 1992, his chest pain increased to the point where he had to be taken to Cambridge City Hospital. He was diagnosed as having had a heart attack and as having high blood pressure or hypertension and was hospitalized for three days. (Dec. 10.)
In January 1993, Figueroa's treating physician released him to return to work with limitations against lifting over thirty-five pounds. When he presented his return to work slip, his employer informed him that he had been laid off. He then collected unemployment benefits from February 1993 until August 22, 1993. Even though he collected unemployment benefits, he did not feel capable of working. (Dec. 11.)
In her order of continuing total compensation from November 7, 1992, the judge noted receipt of these unemployment benefits. (Dec. 18.) We assume that, by this reference, she intended to implement the benefits payment prohibition of G.L.c. 152, § 36B. Section 36B(1) prohibits payment of § 34 and § 34A total compensation for any week in which the employee has received or is receiving unemployment benefits.
After conference, the employee was awarded a short period of total compensation followed by a limited period of partial compensation. (Amended Conference Order filed October 20, 1993). He then appealed for hearing pursuant to § 10A(3) and an impartial medical examiner was appointed pursuant to § 11A.
The impartial medical examiner diagnosed the employee as having uncontrolled and severe hypertension and exertional angina; he did not find that the employee had suffered a heart attack in November 1992. In his initial opinion, he reported that the hypertension was idiopathic and that the exertional angina was caused by underlying arteriosclerotic risk factors. At deposition, he clarified that angina was not a disease but a symptom of the underlying disease. (Dec. 12-13.) He reiterated his opinion that the employee had severe hypertensive disease which was unrelated to stress and was not causally related to work activity. (Dec. 14.) However, on cross-examination, he conceded that the employee's angina was probably precipitated by the series of events at work described above. (Dec. 15.)
After hearing, the judge concluded that the employee received a personal injury of "angina of effort" arising out of and in the course of his employment. Finding that the employee has been totally incapacitated, she awarded ongoing § 34 temporary total compensation benefits. She noted that neither party raised the § 1(7A) issue of whether the employee's angina remains a major but not necessarily predominant cause of the employee's ongoing disability or need for treatment. (Dec. 16.) Her opinion does not address this issue.
On appeal, the insurer asserts that the judge erred as a matter of law in failing to accord prima facie weight to the diagnosis and causation opinion of the § 11A impartial medical examiner. Although the judge purports to have adopted the impartial medical examiner's opinion, the portion adopted did not answer the legal questions in the case. The judge was required to make findings about whether the work activity in question was a major cause of the medical disability. See G.L.c. 152, § 11A(2) (regarding required contents of impartial medical examiner's opinion and its prima facie effect); see also Pelletier v. Bristol County, 8 Mass. Workers' Comp. Rep. 249, 250 (1994) (discussing findings required in pre-existing condition cases). In addition, the judge failed to make adequate conclusions of law based upon the facts found.
Section 11A(2) provides in pertinent part:
. . . . The report of the impartial medical examiner shall, where feasible, contain a determination of the following: (i) whether or not a disability exists, (ii) whether or not any such disability is total or partial and permanent or temporary in nature, and (iii) whether or not within a reasonable degree of medical certainty any such disability has as its major or predominant contributing cause a personal injury arising out of and in the course of the employee's employment. Such report shall also indicate the examiner's opinion as to whether or not a medical end result has been reached and what permanent impairments or losses of function have been discovered, if any. Such impartial physician's report shall constitute prima facie evidence of the matters contained therein. . . .
The decision does not contain the legal analysis required by G.L.c. 152, § 1(7A), with respect to both the initial injury and also ongoing medical problems. See Hammond v. Merit Rating Board, 9 Mass. Workers' Comp. Rep. ___ (December 6, 1995) (discussing the interplay between the causal standard in § 11A(2) and the statutory definition of a personal injury in § 1(7A)). The judge was required to make findings on the elements of proof contained in the definition of personal injury whether or not the § 1(7A) issue was specifically raised by the parties. See G.L.c. 152, § 7(2) ("An insurer's inability to defend on any issue shall not relieve an employee of the burden of proving each element of any case.").
Section 1(7A) provides in pertinent part:
If a compensable injury or disease combines with a pre-existing condition, which resulted from an injury or disease not compensable under this chapter, to cause or prolong disability or a need for treatment, the resultant condition shall be compensable only to the extent such compensable injury or disease remains a major but not necessarily predominant cause of disability or need for treatment.
In summary, because we find the decision inadequate for proper appellate review, we vacate it and remand the case to the administrative judge for further findings of fact and conclusions of law consistent with this opinion. In light of the passage of time during the pendency of the appeal, if either party alleges a change in medical condition or vocational skills since the date the record closed or the judge finds that justice so requires, additional evidence may be taken prior to the entry of the remand decision.
So ordered.
________________________ Suzanne E.K. Smith Administrative Law Judge
________________________ Edward P. Kirby Administrative Law Judge
________________________ Susan Maze-Rothstein Administrative Law Judge
SKS Filed: February 29, 1996