Opinion
BOARD No. 44265-94
Filed: July 25, 1997
REVIEWING BOARD DECISION
(Judges Maze-Rothstein, McCarthy and Smith)
APPEARANCES
Catherine L Watson, Esq., for the employee at hearing.
Thomas E. Casartello, Esq., on brief.
Robert J. Doonan, Esq., for the insurer.
The employee appeals from a decision denying his compensation claim based on right-sided carpal tunnel syndrome and neck pain. During the hearing proceeding he had twice moved for the allowance of additional medical evidence arguing that the G.L.c. 152, § 11A opinion was inadequate. The judge denied these motions and relied on the § 11A examiner's opinion to find that no causally related work injury occurred. As the § 11A opinion on the repetitive injury theory is inadequate as a matter of law, we reverse the decision and remand for further findings after the submission of additional medical evidence.
General Laws c. 152, § 11A gives an impartial medical examiner's report the effect of "prima facie evidence with regard to the medical issues contained therein," and expressly prohibits the introduction of other medical evidence to meet it unless the judge finds the additional medical testimony is required due to the complexity of the medical issues involved or the inadequacy of the report.
The key to the employee's repetitive injury theory was the nature of his work. Although the judge made no findings in this area, there is uncontroverted evidence that the employee worked at Friendly Ice Cream Corporation (the employer) as a driver and delivery person throughout the northeast since 1989. (Dec. 3.) His duties included hooking up a trailer to his 16 wheeler and manually rolling up the landing legs, which involved a cranking motion with his right major arm. (Dec. 3; Tr. 12-14.) His truck had ten gears, which required him to pull a pin with his right hand each time he shifted into higher gear. (Tr. 13, 15.) He had to shift hundreds of times per day. (Tr. 14-15.) The employee had to use his arms to set up a conveyer and other equipment to make the delivery at his destination. (Tr. 16.) Before merchandise could be removed from the refrigerated truck, the employee had to use a crowbar to break ice from the bars holding the frozen products in place. (Tr. 17-18.) In addition, his job required significant lifting. (Tr. 16-18.)
During August of 1993, the employee began treatment for hand numbness and neck pain. (Dec. 3; Tr. 18-19.) He continued working with pain in his entire right-side, from his neck down to his foot including his right arm until he had right carpal tunnel surgery on October 18, 1994. (Dec. 3.)
The insurer paid compensation benefits without prejudice from October 18, 1994 to October 24, 1994. The employee returned to work on a light duty basis until November 14, 1994 when he left his employment with complaints of neck and right arm pain and neck swelling. (Dec. 3.)
The insurer rejected the employee's claim for compensation. His claim for § 34 temporary total weekly benefits was then denied following a § 10A conference. (Dec. 1.)
The employee appealed for a de novo hearing where he claimed § 35 benefits from October 4, 1994 to October 18, 1994 and from November 1, 1994 to November 14, 1994, as well as continuing § 34 benefits from January 31, 1995. Id. The insurer contested liability, disability and its extent, causal relationship, and entitlement to benefits under G.L.c. 152, §§ 30 and 36.
Although at the outset of the hearing the employee advanced only a repetitive injury theory (Tr. 3-4), the case unfolded as a claim in the alternative. The second liability theory was based on a specific injury occurring on September 28, 1994 when the employee allegedly felt a "pop" down his whole arm while unloading frozen ice cream, or when he couldn't pull the pin on the gears to shift because of hand and neck pain. (Tr. 48-49.)
The employee was examined by a § 11A physician, on July 6, 1995. At the October 4, 1995 hearing, the employee moved to submit additional medical evidence because the § 11A report was inadequate. (Tr. 3-4.) As grounds, the employee cited the § 11A examiner's failure to render a causation opinion on the insidious onset of carpal tunnel syndrome and neck symptoms due to repetitive motion. Id. The judge denied the employee's motion. (Tr. 7-8.)
The parties took the § 11A physicians's deposition on January 4, 1996. On February 5, 1996, the judge conducted a further hearing. The employee presented his second motion for the allowance of additional medical evidence. (Feb. 5, 1996 Tr. 4-5.) He once again argued that the doctor failed to give a causation opinion on the repetitive injury theory. Id. The judge denied the employee's motion, finding the opinion adequate and the medical issues non-complex. (Dec. 2; Feb. 5, 1996 Tr. 17.)
On February 28, 1996, the judge filed a decision dismissing the employee's claim, after concluding that no evidence was presented to show that a work injury occurred on September 28, 1994. (Dec. 4.) He adopted the § 11A opinion as prima facie evidence that the employee did not suffer a work injury and was capable of full-time work. Id. The judge recited the doctor's position, "that the Employee suffered from an insidious onset of his injuries that [the physician] is unable to relate to any work injury." (Dec. 3.)
Because we find the judge erred as a matter of law in refusing to grant the employee's motions for additional medical evidence, we reverse that finding and recommit the case. G.L.c. 152, § 11C.
Section § 11A(2) of G.L.c. 152 requires that the "impartial physician's report shall constitute prima facie evidence of the matters contained therein." G.L.c. 152, § 11A(2). The § 11A opinion must address disability and extent thereof, causal relationship, medical end result, and loss of function as to all disputed medical issues. Where any one of the requirements in § 11A(2) (i-iii) are not fulfilled, the § 11A opinion is inadequate as a matter of law. Lebrun v. Century Markets, 9 Mass. Workers' Comp. Rep. 692, 696 n. 9 (1995); Mendez v. The Foxboro Co., 9 Mass. Workers' Comp. Reg. 641, 646 (1995).
General Laws c. 152, § 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 in) 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.
G.L.c. 152, § 11A(2) (as amended by St. 1991, c. 398, § 30); See Mendez v. The Foxboro Co., 9 Mass. Workers' Comp. Rep. 641, 646 (1995).
Section 11A does not sanction reliance on insufficient information as the basis for legal conclusions. Were that not so, serious due process questions would arise as the medical evidence would unfairly circumscribe a party's presentation of his case.O'Brien's Case, 424 Mass. 16, 23 (1996). Section 11A must be used in a way which furthers the accuracy of the adjudicatory process and does not result in due process deprivations. O'Brien's case, supra at 23; Aimie v. Commonwealth, 414 Mass. 667, 682 (1993).
The case at bar differs somewhat from Lebrun and Mendez, supra. In those cases, the impartial medical examiner was unable to render any opinion on a key medical issue. Here, the doctor did render an opinion — he entirely rejected the medical theory that carpal tunnel syndrome can be caused by repetitive activity. See (Dep. 19-23, 27-28).
The doctor disputed a well recognized proposition within the medical community about the causes of carpal tunnel syndrome. The employee sought to present an expert medical opinion that activity such as that he experienced on the job does cause carpal tunnel syndrome. See (Employee's Motion for Request for Findings pursuant to M.G.L. Chapter 152 Section 11A, p. 3: paragraph 8.) At oral argument on the motion for additional medical evidence, the employee offered the treatises as exhibits substantiating his medical theory, which the impartial medical examiner had rejected. See (Tr. February 5, 1996 hearing at 7.)
The employee submitted as an offer of proof attached to the motion, a copy of Campbell's Operative Orthopaedic's, p. 3435 which contained the following passage: "Trauma caused by repetitive hand motions has been identified as a cause of carpal tunnel syndrome, especially in patients whose work requires repeated forceful finger and wrist flexion and extension. Laborers using vibrating machinery are at risk, as are office workers, especially typists and data entry clerks, who spend long hours with the wrists flexed."
Also attached to the motion were copies of other learned treatises containing information that repetitive work was a cause of carpal tunnel syndrome.
The § 11A doctor diagnosed degenerative disc disease in the neck, right hand carpal tunnel syndrome, and a paraesthesia of the right third finger. (Stat. Ex., 1.) The doctor could not identify a specific event at work that caused these medical conditions, but rather opined that the onset of the employee's conditions was gradual and insidious over time. (Rich Dep. 11-12. 19-21, 40 46-47, 51-53.)
It was not clear to the doctor from the history he had whether the onset of the neck condition preceded the arm and hand problems or vice-versa. (Dep. 16.)
Significantly, because the physician rejected an entire school of medical thought on the carpal condition, he was unable to give any opinion on whether the employee's repetitive use of his right arm and hand at work precipitated his carpal tunnel syndrome. He repeatedly testified that he could not state with any degree of reasonable medical certainty what caused the employee's hand problems. Even after being informed of the employee's repetitive work activities by a hypothetical question, the doctor was unable to give an opinion one way or another, as to the causal relationship between the activities and his medical problems. (Dep. 25-26, 29-30, 33-34.)
Portions of Dr. Rich's § 11A comments are as follows: "I don't know why people get carpal tunnel syndrome. . . . I don't know what to say. To answer that question with reasonable medical certainty . . . I don't know why he had carpal tunnel syndrome. I don't know why he developed that." (Dep. 19-20; 29-30; see also 21-24, 28, 33-34.)
The employee has been unfairly precluded from presenting evidence on the merits of his claim because his case proceeds on a theory to which the § 11A doctor does not subscribe. SeeO'Brien, supra, at 23 (in application § 11A can work a due process deprivation). Under these circumstances, § 11A requires the admission of additional medical evidence.
We conclude that the judge's denial of the motions for additional medical evidence was contrary to law. Therefore, we reverse the denial and allow additional medical evidence to be proffered on the basis of the § 11A report's inadequacy. The judge is to make further findings on the employee's repetitive motion theory with the benefit of these submissions.
Should liability for a repetitive injury be found on remand, appropriate findings on the residual medical limitations and a judgment as to the amount of the employee's earning capacity after considering vocational factors shall follow. Scheffler's case, 419 Mass. 251, 256 (1994); G.L.c. 152, § 35D(2)-(5).
Accordingly, we remand this case for further proceedings consistent with this opinion. G.L.c. 152, § 11C.
So ordered.
________________________ Susan Maze-Rothstein Administrative Law Judge
________________________ William A. McCarthy Administrative Law Judge
Filed: July 25, 1997
The judge's denial of the motion for additional medical evidence is inadequate for appellate review. Further factual findings about the scientific reliability of the impartial medical examiner's opinion and the additional medical evidence sought to be admitted are necessary. Only then can we determine whether the judge acted arbitrarily, capriciously or contrary to constitutional mandates in denying the motion. See G.L.c. 152, § 11C. I therefore agree to recommit.
Where disputes exist in the general medical community about the cause of a medical condition, an employee can be unfairly precluded from presenting evidence on the merits of his claim by the provisions of § 11A. Section 11A requires the admission of an impartial medical examiner's opinion whether or not it is based upon a scientifically reliable medical theory. One could therefore have a situation where the generally accepted medical opinion is excluded from evidence, leaving in the record only a voodoo medical opinion. That may have been the situation here. We cannot tell because the judge failed to make the specific findings which are necessary under such circumstances.
In order to render a proper decision on a motion for additional medical evidence under such circumstances, a judge should determine whether the competing causation opinions are otherwise admissible under the evidentiary rules of the Commonwealth. Following the guidance of the Supreme Court inDaubert v. Merrill Dow Pharmaceuticals, Inc., 113 S. Ct. 2786 (1993), the judge should determine whether the etiological theory underlying the competing medical opinions are based on the scientific method, have reproducible methodology, appear in peer journals or are otherwise generally accepted in the medical community. See Commonwealth v. Lanigan, 419 Mass. 15, 26 (1994);Commonwealth v. Paul J. Sands, 424 Mass. 184 (1997). See also Linda Sandstrom Simard William G. Young, Daubert's Gatekeeper: the Role of the District Judge in Admitting Expert Testimony, 68 Tulane Law Review 1457 (1994). The overarching issue is the scientific validity — and thus the evidentiary relevance and reliability — of the principles that underlie the proposed additional medical evidence. See Rotman v. National R.R. Passenger Corp., 41 Mass. App. Ct. 317, 319 (1996) quotingCommonwealth v. Lanigan.
If the party challenging the impartial opinion can establish by a fair preponderance of the evidence offered on the motion for additional medical evidence, that the competing causation opinion of their proposed medical expert is reliable under the Daubert standard, then the case becomes medically complex as a matter of law. Although the judge under § 11A(2) has discretion to exclude it, the requirements of constitutional law may mandate its admission as "to present fairly the medical issues." O'Brien's Case, 424 Mass. 16, 22 (1996).
Section 11A(2) provides in pertinent part: "Notwithstanding any general or special law to the contrary, no additional medical reports or depositions of any physicians shall be allowed by right to any party; provided, however, that the administrative judge may, on his own initiative or upon a motion by a party,authorize the submission of additional medical testimony when such judge finds that said testimony is required due to the complexity of the medical issues involved or the inadequacy of the report submitted by the impartial medical examiner" (emphasis supplied).
Under such circumstances, to assure the parties that the judge has properly considered the requirements of procedural due process, he should make specific findings about the risk of an erroneous determination if the proferred evidence is excluded and weigh the probable value of the additional medical evidence against the governmental interest in streamlining the dispute resolution process. See O'Brien's Case, 424 Mass. at 20; cf. Care and Protection of Robert, 408 Mass. 52, 59, 62-63 (1990) (procedural due process balancing test applied to child custody proceedings). Because the decision lacks such specific findings, I concur in the recommittal order.
____________________________ Suzanne E.K. Smith Administrative Law Judge