Opinion
11-P-750
01-31-2012
JEAN P. CELKO'S CASE.
NOTICE: Decisions issued by the Appeals Court pursuant to its rule 1:28 are primarily addressed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, rule 1:28 decisions are not circulated to the entire court and, therefore, represent only the views of the panel that decided the case. A summary decision pursuant to rule 1:28, issued after February 25, 2008, may be cited for its persuasive value but, because of the limitations noted above, not as binding precedent.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
In this case, AIM Mutual Insurance Company (insurer) appeals the reviewing board's decision summarily affirming the decision of an administrative judge that ordered PJ Overhead Door, Inc. (employer), to pay M. G. L. c. 152, § 35, benefits and §§ 13 and 30, medical benefits to Jean P. Celko (employee), after recommitting the case for further findings regarding a G. L. c. 152, § 1(7A), 'combination injury.'
Section 1(7A) of G. L. c. 152, as amended through St. 1991, c. 398, § 14, defines 'personal injury' and 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' (emphasis supplied).
On appeal, the insurer argues that the order of recommittal was improper because the employee expressly conceded in his brief that he had suffered a combination injury, and the original report of the medical examiner failed to support the employee's claim that his compensable injury was a major cause of his disability. We affirm.
Background. The employee alleged he injured his back at work in August, 2005. The insurer contested the employee's subsequent claim for benefits, raising the defense, among others, of a causal relationship with specific reference to c. 152, § 1(7A).
The insurer alleged that a preexisting condition was the cause of the employee's disability, not the industrial injury. After the employee was awarded partial incapacity benefits under § 35, both parties sought de novo review and an impartial physician (impartial) was appointed to examine the employee pursuant to G. L. c. 152, § 11.
The impartial diagnosed the employee with (1) muscular lumbosacral strain, (2) L4-5 and L5-S1 disc degeneration, (3) left L4-5 stenosis, disc protrusion, and herniated nucleus pulposis (HNP), and (4) left L5-S1 stenosis. He opined that the first, third, and fourth diagnoses were related to the industrial accident, but that underlying spondylosis and disc degeneration preexisted the accident. The administrative judge adopted the impartial's opinion, which he characterized as determining that 'much of the employee's diagnoses are related to the industrial injury despite their being some pre-existing condition.' He then found it to be clear from [the impartial's] characterization of the way in which the employee's current state involves 'such significant diagnoses -- including a disc protrusion, a herniation, and spinal stenosis -- that were directly caused by the injury[,] that the injury was and remained a major cause of the employee's overall condition.'
The insurer appealed to the reviewing board arguing that the employee failed to meet his burden of proof that the industrial accident was a 'major cause' of his disability under § 1(7A), because the impartial's report failed to contain an explicit opinion concerning the relative degree to which the work-related and nonwork-related diagnoses contributed to the disability. The reviewing board, noting that the issue of major causation requires expert testimony, agreed 'with the insurer that the [impartial's] opinion is insufficient to carry the employee's burden of proving 'major' causation under § 1(7A).' Noting the impartial's multiple diagnoses, the board stated: 'Without knowing something about how much each diagnosis contributed to the employee's present incapacity, we are at a loss as to whether the evidence satisfies the § 1(7A) 'major' causation standard.' It expressed concern that the impartial's failure to address the 'major causation' issue, as expressly requested by the administrative judge and one of the parties, interfered with the proper functioning of the purposes of § 11A (impartial physician). The board also noted that the administrative judge failed to make an explicit finding on the threshold issue: whether the injury was a combination injury. The board then recommitted the case to the administrative judge for a determination whether there was a combination injury, and, if such a finding is made, the impartial should include an addendum to his report addressing the 'major cause' issue.
'[A] finding of heightened causation under § 1(7A) must be supported by medical opinion that addresses -- in meaningful terms, if not the statutory language itself -- the relative degree to which compensable and noncompensable causes have brought about the employee's disability.' Stewart's Case, 74 Mass. App. Ct. 919, 920 (2009).
'The insurer must raise § 1(7A) as a defense and produce evidence to trigger its application. . . . An essential element of proof in establishing this threshold requirement is a showing by the insurer that there is a ' combination' of the industrial injury with the pre-existing condition.' MacDonald's Case, 73 Mass. App. Ct. 657, 659-660 (2009), quoting from Johnson v. Center for Human Dev., 20 Mass. Workers' Comp. Rep. 351, 353 (2006).
The insurer appealed the reviewing board's decision of recommittal to this court; we dismissed the appeal on the ground that the decision was not a final decision. See Celko v. AIM Mut. Ins. Co., 09-P-514 (March 4, 2010).
On recommittal, the impartial seemed reluctant to answer the causation question directly in the second report. The administrative judge, over the insurer's objection, then 'opened the medicals' permitting each party to submit additional evidence relative to causation, and to depose the impartial. At his deposition, the impartial provided an explicit opinion concerning causation, testifying that he did not think that the preexisting condition and the injury combined to cause the disability and, even assuming a combination, the injury would still be a major contributing factor.
The administrative judge then credited the impartial's opinion and determined that there was no combination injury, that the 'industrial injury was and remains the cause of disability.' Accordingly, he ruled that the enhanced causation standard of § 1(7A) did not apply, and the employee more than satisfied his burden to prove simple causation. On the insurer's appeal, the reviewing board summarily affirmed.
The administrative judge also noted that, should the heightened causation standard be held to apply, he would adopt the impartial's opinion that the industrial injury was a major cause of the employee's disability.
Discussion. The main issue raised by the insurer on appeal is whether the reviewing board's earlier decision recommitting the case to the administrative judge was reversible error. The insurer argues that the decision to do so was arbitrary and capricious because: (1) the issue whether the injury was a combination injury had been conceded by the employee and was not properly before the reviewing board, and because (2) the impartial's original report did not opine as to major causation, the employee failed, as was his burden, to establish that his injury was a major cause of his disability. We disagree.
1. Recommittal. Pursuant to G. L. c. 152, § 11C, as amended by St. 1991, c. 398, § 31, '[t]he reviewing board may, when appropriate, recommit a case before it to an administrative judge for further findings of fact' (emphasis added). Here, the board recommitted the case because the administrative judge failed to make the requisite finding that there was a combination injury. See MacDonald's Case, 73 Mass. App. Ct. 657, 660 (2009) (in considering a § 1(7A) affirmative defense, administrative judge must make findings of fact addressing whether preexisting condition 'combines with' the compensable injury).
The insurer argues that the board's recommittal order was not 'appropriate' in the circumstances where the combination injury issue was not in dispute before the board. The case it relies on for this proposition, Taylor's Case, 44 Mass. App. Ct. 495 (1998), is inapposite, as it concerned the board's sua sponte decision, after it affirmed the administrative judge's decision, to permit the employee to reopen his case under a new theory. This, we held, was beyond the board's statutory authority to recommit a case for further findings. Id. at 497-498.
In this case, a finding of a combination injury was a necessary prerequisite to the application of the major causation standard. As such, it was 'necessary to dispose completely of the claim.' Id., at 498, quoting from Utica Mut. Ins. Co. v. Liberty Mut. Ins. Co., 19 Mass. App. Ct. 262, 267 (1985). See Stewart's Case, 74 Mass. App. Ct. 919, 920 (2009) (recommittal to administrative judge for findings on major causation appropriate where other evidence could support judge's conclusion).
2. Major causation. The insurer argues that the absence of a major causation opinion by the impartial, despite the judge's request that he render one on the 'conflict disclosure form' sent to him, results in a failure of proof on the part of the employee, because neither the employee, nor the judge, found the report inadequate or sought to open the medicals on the issue. General laws c. 152, § 11A(2), provides that when an impartial's report fails to address the issue of causation, the judge sua sponte, or a party upon motion, may seek to admit additional medical evidence. The insurer argues, in essence, that the employee waived his opportunity to challenge the sufficiency of the impartial's report and seek the admission of additional medical evidence.
Although an argument not made before the administrative judge could have been deemed waived by the reviewing board, see, e.g., Georgilas's Case, 10 Mass. App. Ct. 872, 872-873 (1980), the insurer has not cited a case, nor have we found one, indicating the board does not have the authority to consider a potentially waived issue. Moreover, we agree with the board that the purpose of § 11A may not be thwarted by an impartial's failure to provide the necessary information sought by the administrative judge and required by the statute. See generally, Norfolk v. Department of Envtl. Quality Engr., 407 Mass. 233, 238 n.9 (1990).
Here, the initial report was inadequate as matter of law because it failed to render an opinion on the issue of causation as required by the statute, and as specifically directed by the judge. Further, it insufficiently addressed the issue whether the noncompensable preexisting condition combined with the subject work injury to cause or prolong disability or need for treatment. The reviewing board did not order that the medicals be opened, only that the impartial amend his report to answer the question of causation put to him by the administrative judge in the initial proceedings. It was only when the impartial's second report again failed to address the causation issue directly that the judge decided to open the medicals. There was no error.
Decision of reviewing board affirmed.
By the Court (Graham, Brown & Meade, JJ.),