Opinion
Board No. 04503-91
Filed: August 7, 1995
REVIEWING BOARD:
Judges Maze-Rothstein, Kirby, and Smith.
APPEARANCES:
Ronald Stoia, Esq., for the employee.
Robert Doonan, Esq., for the insurer.
Both the employee and insurer appeal from the administrative judge's award of § 34 temporary total benefits. The employee, who suffered multiple injuries, charges the judge erred in denying benefits for his subsequently developed carpal tunnel syndrome. The insurer avers it was capricious to find the employee totally incapacitated. It argues that on the evidence presented the judge was required to assign an earning capacity and award § 35 partial incapacity benefits. The employee's appeal has merit. The insurer's appeal does not. We reverse the negative finding on causation of the carpal tunnel syndrome and affirm the decision in all other respects.
The judge made the following relevant findings. At age 18 after completing high school, the employee, a native of New-foundland, came to the United States. (Dec. 4.) He worked as a warehouse laborer, truck driver and furniture mover. (Dec. 4-5).
On September 17, 1991, at age 47, while at work moving a chest of drawers he felt left-sided pain in his shoulder and neck. (Dec. 5.) By the following day it had extended through his upper back. Id.
Medical diagnoses revealed cervical herniations and confirmed the radiation of pain down his left arm. (Dec. 7.) The employee underwent surgery, physical therapy and cortisone shots. (Dec. 8.) Postoperatively, his shoulder developed adhesions. Id. Significantly, almost one month prior to the hearing, the employee received test results that evinced newly developed carpal tunnel syndrome in his left hand. Id.
Under the provisions of G.L.c. 152, § 11A, the reported opinion and deposition testimony of Dr. Richard Alemian were considered. (Dec. 8-9.) The judge also allowed, due to both the inadequacy of the report and the complexity of the issues, additional medical evidence pursuant to 452 Mass. Regs. 1.12(5)(a).
452 CMR 1.12 (5) (a) reads in pertinent part:
The required finding on medical complexity and/or inadequacy of the impartial physician's report may be made by the administrative judge prior to the first scheduled G.L c. 152, § 11 or 11A(2) hearing date as applicable. Upon a written request of a party, the administrative judge may authorize such additional medical testimony after receipt of the impartial physician's report due to inadequacy of the report or the complexity of the medical issues involved. The administrative judge's authorization of additional medical testimony must be in the form of a written finding that such testimony is required due to the complexity of the medical issues involved or the inadequacy of the report of the impartial physician.
(Emphasis added.)
The judge reported the additional medical evidence was of no assistance on the causation of the carpal tunnel condition because "the reports submitted [by the] employee and insurer all predated the first complaint of the employee related to the hand." (Dec. 11.) The judge ultimately adopted the § 11A examiner's partial physical disability and causal relationship opinion as to the shoulder and cervical conditions. (Dec. 9.) But relying on early portions of the doctor's deposition testimony, she rejected his causal opinion on the employee's carpal tunnel syndrome. (Dec. 10; Alemian Dep. 32, 33, 34.)
The judge excluded the causal nexus for the carpal condition on two grounds. First, she ruled the equivocal language — in that portion of the doctor's testimony referenced — amounted to no more than an expression of causal possibility insufficient to establish a connection to the industrial incident. (Dec. 11, citing Hachadourian's Case, 340 Mass. 81 (1959).) Second, the judge found error in the doctor's history of left-sided inactivity because the employee had used his left arm and hand in physical therapy and he also held his car's steering wheel with his left hand, in order to shift with his right when "he drives his children to school." (Dec. 10.)
The judge combined the evidence of the employee's partial physical disability with that of his specific vocational limitations and found him totally incapacitated. (Dec. 13-15.) She awarded the employee temporary total incapacity benefits from September 18, 1991 and continuing. (Dec. 15.)
In an otherwise sound decision, the judge erred when she rejected Dr. Alemian's opinion on the relatedness of the carpal tunnel condition. The judge correctly looked to the medical examiner's expert opinion for answers to the medical questions beyond the realm of general human knowledge and experience. Sevigny's Case, 337 Mass. 747, 749 (1958); Josi's Case, 324 Mass. 415, 418 (1949). The doctor offered an opinion. We now address the degree of certainty with which that opinion was rendered.
In fact, Dr. Alemian did reach a conclusive causal opinion on cross-examination with the following testimony:
I believe that I previously stated that his carpal tunnel syndrome I felt was in some way related to his relative inactivity of his left upper extremity as a result of his adhesive capsulitis which followed his arthroscopic surgery of the left shoulder which was performed because of an injury sustained September 17, 1991.
(Alemian Dep. 56.) The doctor was then asked, "and all opinions you've stated to us are within a reasonable degree of medical certainty, [d]octor?" to which the doctor responded, "[y]es." (Alemian Dep. 57.) The deposition shortly thereafter concluded. Thus, with necessary medical certitude, Dr. Alemian did relate the late development of the employee's carpal tunnel syndrome to the aftermath of the industrial injury.
Because of Dr. Alemian's uncontroverted ultimate opinion of medical causation for the carpal infirmity, the judge was required to give specific reasons for disregard of that opinion. Galloway's Case, 354 Mass. 427, 431 (1968). She gave reasons for repudiating the doctor's causation opinion, but they appear to lack support in the record. She explained the doctor, who relied on the employee's "relative inactivity" secondary to the post-operative shoulder adhesions, could not be right about the carpal causation because the employee had actively engaged in physical therapy and had driven his children to school with a standard shift car. (Alemian Dep. 32, 56; Dec. 10.)
On the record these reasons for rejection cannot invalidate the doctor's carpal causation opinion. Though the employee had participated in medically indicated physical therapy, that treatment ceased shortly after the employee's surgery and approximately six months prior to the January 1993 onset of carpal tunnel symptoms. (Insurer Ex. 9.) Whatever level of activity the physical therapy represented it appears so remote in time to the onset of the contested carpal condition that it could not suffice to disturb the doctor's position that the employee had been relatively inactive.
The judge reasoned the doctor had "knowledge that the employee underwent physical therapy" but she found that either the doctor did not review "or did not have available to him" the physical therapy records (entered into evidence as Insurer's Exhibit 9 after the report was found inadequate or the issues were deemed medically complex), which indicated "very continual and active use of the upper extremity" during physical therapy treatments. (Dec. 11.) The extent of the doctor's knowledge about, or the degree to which his opinion was premised on, the employee's physical therapy treatment seems inapposite by reason of its remoteness.
Secondarily, the task of driving one's children to school in a standard shift car hardly could be said to represent a level of activity that could overcome a medical opinion of relative inactivity. As these were the only reasons advanced for rejecting the medically uncontroverted carpal tunnel causal opinion of the doctor, that rejection cannot stand. The finding, inadequately supported by the evidence, must be set aside. G.L.c. 152, § 11C.
Turning to the insurer's appeal, we find the evidence of the employee's limited vocational capabilities, when combined with a finding of partial physical disability, was acceptably adjudged totally incapacitating. See Scheffler's Case, 419 Mass. 251, 256 (1994); Frennier's Case, 318 Mass. 635, 639 (1945). Specifically, the judge found:
The employee credibly reports that he cannot perform the physical labor required in his job as a furniture mover. He testified that he is not saying he can not do anything; but that he doesn't know what he can do.
The employee does not possess any special skills and abilities presently which would allow him to obtain sedentary or light work in the general labor market which would earn him anything other than of a trifling nature.
Given the record as a whole, and credible evidence of the employee's physical capabilities, causally related medical limitations, age, education, training and experience exclusively in physical work, I find that the employee is presently totally disabled from performing work of a substantial, as opposed to trifling nature.
(Dec. 13.)
The insurer's reliance on Ballard's Case, 13 Mass. App. Ct. 1068 (1982), is misplaced. The extent of an employee's disability is most often a question of fact. Id. at 1068. In Ballard's Case an employee appealed a single member's finding of partial incapacity and ability to perform "adjusted light work." Id. The Ballard court held the single member had relied too heavily on the medical opinions. Id. at 1069. The court disapproved of the undue reliance on the medical opinions and remarked on the need to consider vocational indices set out in Frennier's Case, supra. Ballard, at 1068-1069. It instructed, under those circumstances before the judge could rightfully award partial incapacity benefits, "the findings must go beyond the medical opinions . . . and identify the type of work which the employee is capable of performing within the scope of those opinions." Id. at 1069; see Mulcahy's Case, 26 Mass. App. Ct. 1, 4 (1988) (for similar explanation of Ballard's Case).
Further, a showing of attempts to find work is not necessary if those efforts would prove futile. Id. An employee is not required to show an attempt to obtain employment that common sense indicates he is incapable of performing. LaFlam's Case, 355 Mass. 409, 411 (1969).
In the case at bar, the judge made careful and thoughtful findings on the employee's vocational picture before reaching her incapacity appraisal. Reason and common sense indicated to the judge that when the employee's work limitations were incorporated with his partial medical disability, efforts at gainful employment would have trifling results. Her finding of § 34 temporary total incapacity was well within her discretion.
The judge's finding that the carpal tunnel condition did not causally relate to the industrial injury is without adequate support. We reverse that finding and order all reasonable and related § 30 medical benefits for the carpal condition. G.L.c. 152, § 11C. In all other respects we affirm the decision.
So ordered.
Judges Kirby and Smith concur.