Opinion
BOARD No. 07562990
Filed: August 29, 1996
REVIEWING BOARD DECISION
(Judges Maze-Rothstein, McCarthy and Smith)
APPEARANCES
John K. Ford, Esq., for the employee
John E. Coyne, Esq., for the insurer
The employee appeals from a decision discontinuing payment of weekly compensation benefits. Because the finding that a related surgery intervened to uncouple the causal chain between the present medical impairment and the industrial accident is contrary to law, we reverse general findings numbered 2 and 3. (Dec. 8.) But because the conclusion that the employee's earning capacity met his former average weekly wage is supported by findings grounded in the evidence, we summarily affirm the order of discontinuance.
On October 11, 1990, the employee aggravated a pre-existing avascular necrosis when he slipped on some food at work and hit his left hip against a cabinet. This incident was earlier adjudicated in a prior hearing decision, filed on March 18, 1992. Therein, a different administrative judge concluded that the aggravation amounted to a compensable industrial injury. (Dec. 3.) In that prior decision, the judge specifically found total incapacity resulted from the aggravation injury, which would require a total hip replacement, and ordered payments of reasonable and necessary medical expenses. (Decision filed March 18, 1992, 6.) The employee underwent that total hip replacement in March 1993. (Dec. 5-6.) The present case stems from the insurer's subsequent complaint for discontinuance or modification of the employee's G.L.c. 152, § 34 temporary total incapacity benefits. The § 10A conference on that complaint resulted in assignment of a small earning capacity, and an order of § 35 partial incapacity benefits. (Dec. 2.) The insurer appealed the order to a hearing de novo. Id.
We take judicial notice of this decision, which was not appealed by either party.
The employee was examined by an orthopedic surgeon pursuant to § 11A. The § 11A doctor identified avascular necrosis of both hips, but he believed the 1990 work trauma was never causally connected to that medical condition. (Dec. 5-6.) He further opined that the unsuccessful total hip replacement of March 1993 caused the employee's present medical disability, impairing his left lower extremity. (Dec. 7; Dep. 13-14.) The § 11A physician's opinion was adopted as prima facie evidence of the employee's medical condition. (Dec. 7.)
General Laws c. 152, § 11A(2) gives an impartial medical doctor's report the effect of "prima facie evidence of the [medical] matters contained therein" and expressly prohibits the introduction of other material medical testimony to meet it unless the judge finds that additional medical testimony is required due to the complexity of the medical issues or the inadequacy of the report. O'Brien v. Blue Cross/Blue Shield, 9 Mass. Workers' Comp. Rep. 16 (1995), appeal docketed, No. 07058 (SJC October 30, 1995).
Next, extent of incapacity findings were based, in part, on the employee's testimony of employment since the hip surgery. He was found to have been capable of performing various jobs, earning up to $140.00 in a three day period in September 1994. (Dec. 4.) There was also testimony from a rehabilitation counsellor who felt the employee could perform a number of sedentary occupations by utilizing his transferable skills in the labor market. (Dec. 5.)
The judge concluded that, even with the partial impairment related to his hip replacement, the employee was capable of performing work which would enable him to earn a weekly wage at least equal to his average weekly wage of $286.00. (Dec. 1, 7-8.) The insurer's discontinuance complaint was allowed based on a finding that any residual disability was not incapacitating. (Dec. 8-9.) This finding is sound and will not be disturbed.
It was the issue of causal relationship that derailed the decision. The judge had before him a prior unappealed hearing decision that had for purposes of res judicata settled the issue of initial causation. The hip condition had, in the first instance, been aggravated by the work injury. Moreover, a further finding of the earlier decision, settled by want of appeal, was the need for corrective surgery. Because the first decision was not challenged, those two factual links of the causal chain were forever laid to rest.
However, the judge also had before him a § 11A opinion that somewhat conflicted with the earlier adjudication. The § 11A doctor saw no causal relationship between the necrotic condition and the injury from the outset. Yet, he related the current impairment to a failed surgery.
Marooned on this incongruent evidence of causation, the decision lost its bearings. The judge correctly concluded, based on the § 11A examiner's opinion, that the employee's present impairment — the continuing left hip pain — was related to the surgical intervention of March 1993. (Dec. 4, 7.) But then he strayed in an effort to harmonize the dissonant causal relationship evidence before him, finding:
that the intervening surgery undergone by the employee, namely, the total replacement of the left hip, would essentially have corrected the avascular necrosis condition, which is a bone condition subject to correction by the removal of the diseased bone. Thus, [the prior administrative judge's] finding that the original disability was as a result of an exacerbation to this particular bone, could no longer be pertinent once the offending instrumentality is removed. . . . [T]he employee's condition has totally changed due to the surgical intervention.
(Dec. 6-7.) On this surmise, the judge therefore concluded that the employee's physical condition was distinguishable from that which he experienced prior to his hip replacement, at the time of the earlier hearing. (Dec. 8.)
First, we must observe that the § 11A examiner's disagreement with the former judge's assessment of the medical evidence at that prior hearing is utterly irrelevant to the instant case, and should have been disregarded. That unappealed decision is res judicata as to liability and initial causal relation between the work trauma and the ensuing medical condition requiring surgery. See Himmelman v. A.R. Green Sons, 9 Mass. Workers' Comp. Rep. 99, 101 (1995). Further, § 11A(2) reads in pertinent part: "When any claim or complaint involving a dispute over medical issues is the subject of an appeal of a conference order. . . ." G.L.c. 152, § 11A(2), as amended by St. 1991, c. 398, § 30 (emphasis added). Due to the former decision, the existence and original causation of the industrial injury was not a medical issue in dispute within the meaning of § 11A(2). Thus, the § 11A opinion addressing that issue was not only without prima facie weight, it was meaningless to the case. See Bourassa v. D.J. Reardon Co., 10 Mass. Workers' Comp. Rep. ___ (March 19, 1996). In Bourassa, we explained that in cases subject to § 11A, "[b]efore an 11A exam is commissioned, the claim must involve a dispute over medical issues. . . ." Id. at ___. The case at bar illustrates a further point. Certain medical issues can be taken out of the dispute for purposes of § 11A where a prior adjudication already settles them as a matter of law — whether or not a § 11A doctor renders an opinion on those issues. The § 11A doctor's opinion relating the employee's impairment to the surgery, and not the industrial injury, is therefore immaterial to the judge's assessment of present causation.
In the effort to traverse the labyrinth of past and present causation, it seems an important aspect of the § 11A medical opinion on current causation was overlooked, rendering the factual finding on that issue arbitrary. The § 11A examiner opined that the March 1993 hip replacement had not been successful, and that the employee would have to undergo another hip replacement in order to address the problem of his present and continuing pain. (Dep. 13, 20.) Thus, the finding that the surgery "would essentially have corrected" the necrosis condition, and that the medical condition had "totally changed" due to the surgery, (Dec. 6, 7), is incorrect and cannot stand. The uncontroverted evidence is antithetical to such a finding.
The problem of the erroneous factual finding was next compounded by a legal error. The judge found that the hip surgery — previously adjudicated as being necessary to correct the work related aggravation — was an "intervening" event, thereby cutting the causal connection between the employee's present impairment and the industrial aggravation injury. (Dec. 6.) This was plain error.
Since the inception of the Act, insurers have been charged with liability for employees' medical conditions which result from reasonable and necessary treatment for their industrial injuries. See Burns's Case, 218 Mass. 8, 11 (1914). This is so because necessary treatment, even if performed negligently, is a link in the continuing chain of causation. Atamian's Case, 265 Mass. 12, 15 (1928). See also Somers's Case, 344 Mass. 581, 585 (1962) (liability attaches for disability due to exploratory surgery related to industrial injury). It does not sever the chain. Instead, needed treatment and its aftermath merely extend connected causality. See Laurence S. Locke, Workmen's Compensation § 223 (2d ed. 1981) and cases cited therein. See also Gulczyinski v. Granada Hosp. Group, 7 Mass. Workers' Comp. Rep. 151, 153 (1993) (an intervening cause must be independent, such that an extension of benefits would be inconsistent with the Act).
The causal links here remained connected: 1) the prior decision established liability and initial causation, 2) that same decision determined that the hip replacement surgery was necessary treatment, and 3) the result of that necessary treatment was further impairment. There is no intervening cause in such a chain.
We therefore reverse the judge's conclusion on present causation. We determine as a matter of law that the industrial injury continued to be causally related to the employee's present impairment. In the event that the employee is advised by his physician and chooses to undergo another hip replacement to correct the painful effects of the unsuccessful 1993 surgery, that surgery and whatever recuperation period is reasonable and necessary will also be causally related to the industrial injury.
However, the errors discussed above do not affect the order in the decision. We summarily affirm the judge's determination that the employee is no longer entitled to weekly incapacity benefits, as he has the ability to earn a weekly wage at least in the amount of his average weekly wage.
So ordered.
_____________________________ Administrative Law Judge Susan Maze-Rothstein
_____________________________ Administrative Law Judge William McCarthy
_____________________________ Administrative Law Judge Suzanne E.K. Smith
Filed: August 29, 1996