Opinion
BOARD Nos. 024197-94, 062680-94
Filed: February 4, 1998
REVIEWING BOARD DECISION.
(Judges McCarthy, Maze-Rothstein and Smith).
APPEARANCES.
Peter P. Harney, Esq., for the employee at hearing Valerie K. McEvoy, Esq., for the employee on brief John G. Preston, Esq., for the insurer.
The employee appeals from the decision of an administrative judge denying and dismissing his claims. The judge found that Mr. Jaime did not sustain compensable injuries arising out of and in the course of employment on either of two dates of injury at issue. We recommit for further findings consistent with this opinion.
The employee, born in 1963, came to the United States in 1991 from the Dominican Republic where he completed high school. (Employee Ex. 1.) He is able to converse in English with some difficulty and is unable to write fluently. (Dec. 4.)
The employee alleges that he sustained injuries on two occasions at New Balance, the employer, where he worked in shipping. His duties included receiving returned merchandise, transporting it to the return department, and inspecting the goods. (Dec. 4.) Mr. Jaime claims that he injured his low back and left groin while he was lifting a heavy box at work on March 5, 1994. (Dec. 5.) He asserts that by April 27, 1994 the pain had become so severe that he had to stop work and seek medical treatment. Id. The employee does not contend that he suffered an acute injury due to a specific incident on that last day of work.
After a § 10A conference on the claim of injuries on March 5, 1994 and April 27, 1994 (Employee's Exhibits 2, 3, 4) the judge issued a written order denying benefits. (Dec. 1.) The employee appealed to a hearing de novo.
At the hearing, conducted on February 9, 1996, Mr. Jaime sought weekly temporary total incapacity benefits under § 34 or, in the alternative, § 35 partial incapacity compensation from April 27, 1994 to date and continuing in addition to benefits under §§ 13, 30, 35A and § 13A. The insurer denied that industrial accidents occurred on either claimed date and also raised the issues of medical disability and extent thereof, and causal relationship (Dec. 2.)
The employee submitted medical reports and notes from Doctors Mandell, Yu, Selbst and the deposition of Dr. Varga. The insurer submitted the report of Dr. Litner. (Dec. 3.)
The parties opted out of an exam pursuant to § 11A since initial liability was not established. See 452 Code of Mass. Regs. 1.10 (7).
In his hearing decision, the judge denied both claims. He found that the employee suffered no injury in the course of employment on April 27, 1994 and "no disabling injury on March 5, 1994." (Dec. 10.) He found that if the employee experienced back and groin pain on March 5, 1994, it did not disable him because he continued to work for several weeks thereafter and sought no treatment until April 29, 1994. (Dec. 11.) Adopting the opinions of Doctors Mandell and Litner, he concluded the groin pain was probably attributable to a non-work related lipoma in the left lower abdomen which caused no significant medical disability. (Dec. 11; Employee's Exhibit 5, 9; Insurer's Exhibit 1.) The judge explicitly rejected Doctor Varga's opinion on the back injury finding it was based on an inaccurate history. (Dec. 11.) The judge's conclusion that Mr. Jaime was not entitled to benefits under § 34, § 35, § 35A, §§ 13 or 30 and § 13A brings the employee's appeal before us. We find two problems requiring recommittal.
There was some confusion about the history in Dr. Varga's deposition. It appears that at times he thought that the specific lifting incident of March 5, 1994 occurred on April 27, 1994. (Dep. 10, 17, 29, 35 39-40, 43, 57-58.) When given the correct history, however, he opined that the April 27, 1994 injury was the result of work related exertion beginning on March 5, 1994. (Dep. 17-18.)
To be compensable an injury must arise out of and in the course of employment looked at in any of its aspects. Caswell's Case, 305 Mass. 500, 502 (1940). The injury must arise from an identifiable work related incident or series of incidents or from an identifiable condition that is not common and necessary to all or a great many occupations. Zerofski's Case, 385 Mass. 590, 594-595 (1982). There is no requirement that an injury occur in a specific incident at a definite time; it is compensable if the injury arises from a series of strains or insults to the body occurring at work over an extended period of time. Trombetta's Case, 1 Mass. App. Ct. 102, 105 (1973). The injury may develop gradually from the cumulative effect of stresses and aggravations at work and arising out of it. Id. Where an injury arises from the gradual impairment of the body, the date of injury becomes the date the accumulation of insults causes incapacity for work. DeFilippo's Case, 284 Mass. 531, 533-534 (1933).
In this case, the employee claimed compensation based on two dates of injury, March 5, 1994 and April 27, 1994. The judge rejected the causation opinion regarding the back condition rendered by the employee's expert, Dr. Varga, because "[his] opinion makes no sense given that no incident occurred on April 27, 1994." This finding overlooks the employee's alternate theory of liability, that is, a specific incident on March 5, 1994 followed by cumulative physical stress until the last day of work on April 27, 1994. See Trombetta's Case, supra at 105. We affirm the judge's finding of no specific incident occurring on April 27, 1994, but remand for findings anew on the employee's second theory of liability (i.e. cumulative injury with an initial accident on March 5, 1994).
The judge's finding is as follows:
I reject the opinions of Dr. Varga because they are based on an inaccurate history of injury.
At deposition, Dr. Varga answered a hypothetical question, assuming that the employee first experienced symptoms on March 5, 1994 and continued working as the pain increased through April 27, 1994. Dr. Varga testified that assuming these facts, he would causally relate the employee's condition to April 27, 1994. (Deposition of Dr. Varga, pages 17-18). This opinion makes no sense given that no incident occurred on April 27, 1994. Therefore, I reject this opinion of Dr. Varga.
(Dec. 10.)
There is a second problem requiring clarification on remand. The judge made a single general finding on the March 5, 1994 incident: "I conclude that the employee suffered no disabling injury on March 5, 1994." (Dec. 10.) In addition to denying weekly benefits, the judge also found that the employee was not entitled to payment of his medical expenses. (Dec. 11.) If the judge is finding an injury, the employee is entitled to payment of reasonable and related medical expenses even if he loses no time from work. Buonopane v. Vappi Co., 10 Mass. Workers' Comp. Rep. 88, 91 (1996); Tigano v. Acme Boot Co., 8 Mass. Workers' Comp. Rep. 145, 148 (1994). On remand, the judge should examine this issue.
As it is unclear whether the denial of all claims was warranted, we recommit for further findings. Praetz v. Factory Mutual Engineering Research, 7 Mass. Workers' Comp. Rep. 45 at 47 (1993). G.L.c. 152, § 11B. On remand, the judge should make further findings on whether there was a cumulative injury causing incapacity beginning on April 27, 1994 and whether there was a compensable injury on March 5, 1994 for which medical benefits are due.
So ordered.
______________________________ William A. McCarthy Administrative Law Judge
______________________________ Susan Maze-Rothstein Administrative Law Judge Filed: February 4, 1998
The decision's findings are sufficient to allow the reviewing board to determine with reasonable certainty that "the [administrative judge] applied correct principles of law."Johnson's Case, 355 Mass. 782, 783 (1968). The opinion discloses reasoned decision making within the workers' compensation requirements. Scheffler's Case, 419 Mass. 251, 258 (1994). It is well grounded in the evidentiary record. Therefore, even though on this record we may have reached a different result, the limiting provisions of G.L.c. 152, § 11C require the reviewing board to affirm the decision.
An administrative judge is free to reject an expert medical opinion, Amon's Case, 315 Mass. 210 (1943), so long as he adequately sets forth the reasons for doing so. As a fact-finder, an administrative judge is free to disbelieve an employee's description of his symptoms. Lettich's Case, 403 Mass. 389 (1988). A judge may reject a medical opinion grounded in a factual inaccuracy. See Scheffler's Case, 419 Mass. at 259. Where a judge disbelieves the history given the doctor or the facts presented in a hypothetical question, he may properly disregard an opinion based upon it. Wilson v. Perkins LaFrance, 9 Mass. Workers' Comp. Rep. 67, 71 (1995).
Here the administrative judge properly rejected a chiropractic opinion that the employee's problems were related to a work injury on April 27, 1994 because it was based upon an inaccurate history of a specific traumatic event on April 27, 1994. (Dec. 11.) The chiropractor testified that the employee's disability was caused by an "accident" on April 24, 1997. (Varga Dep. 17.) The employee had told the chiropractor that, on April 27th, he felt a sharp pain in his low back and heard a loud crack while lifting a heavy box weighing about seventy-five pounds. (Dec. 9; Varga Dep. 10, 39-40, 54.) However, at hearing, the employee did not testify about such an event. (Dec. 5, 9.)
Here the judge permissibly rejected the chiropractor's one word answer to a hypothetical question about a gradual injury. The chiropractor's opinion was based on an assumption of "increasing symptoms" between March 5th and April 27th, a premise not found by the judge. The judge also indicated that he was unpersuaded by the answer because the chiropractor did not explain it and in the answer to the very next question repeated that he causally related the employee's condition "to April 27, 1994," i.e. the nonexistent "accident." (Dec. 10; see fn. 4, supra.)
The colloquy at the deposition went as follows:
Q: . . . And, Doctor, assume that Mr. Porfirio Jaime first experienced these symptoms on or about March 5, 1994?
A: Yes.
Q: But continued working through April 27, 1994 with increasing symptoms during that period of time associated with lifting, would that continue to be your opinion that his condition would be causally related to his work activities during that period of time.
A: Correct.
(Varga Dep. 17, emphasis supplied.)
The judge wrote: "I reject the opinions of Dr. Varga because they are based on an inaccurate factual history." (Dec. 11.) The judge found that the employee did not complain of back pain to any physician until April 29, 1994. (Id.)
With respect to the medical bill issue, the judge correctly denied the medical claim. In order to obtain an award of medical services, an employee must establish that the treated medical condition was caused by work. G.L.c. 152, §§ 13 and 30. Here, the judge was rationally unpersuaded by the only expert opinion that causally related the claimed medical treatment to a work-related condition. The judge rejected the chiropractor's diagnosis of left sciatic radicula with left lumbosacral sprain accompanied by paravertebral myofacitis, (Dec. 9) and instead adopted the competing opinion of Dr. Litner that the employee had no neurological cause for back complaints, (Dec. 10.) Thus the denial of the medical claim was legally compelled by the judge's diagnosis and causation findings.
The judge's reasoning is tolerably clear. No further findings are required because the decision is adequate for appellate review. The judge properly applied the law and had adequate evidentiary support for his findings of fact. His decision discloses reasoned decision making within the workers' compensation requirements. Scheffler's Case, 419 Mass. 251, 258 (1994). The decision is not arbitrary or capricious, or contrary to law and should be affirmed. G.L.c. 152, § 11C.
______________________________ Suzanne E. K. Smith Administrative Law Judge