Opinion
BOARD No. 1782392
Filed: January 24, 1997
REVIEWING BOARD DECISION
(Judges Maze-Rothstein, McCarthy and Smith)
APPEARANCES
Sherwin L. Kantrovitz, Esq., for the employee.
Francis Sullivan, Esq., for the insurer at hearing.
Michael T. Henry, Esq., on insurer brief.
We have the employee's appeal from a decision that authorized the self-insurer to cease weekly compensation payments as of March 30, 1994. It had been making payments pursuant to a December 1992 conference order. The employee's claim for § 36 loss of function benefits was reserved. No § 13A attorney's fees were awarded.
On appeal the employee contends that the judge committed reversible error by: failing to adequately address the issue of aggravation; and by denying § 35 partial incapacity benefits and attorney's fees. Finding that the judge did not resolve certain issues central to the case, we recommit it for further findings consistent with this opinion.
The pertinent facts follow. The employee worked for her employer, the Malden Hospital, as a nurse's assistant from 1987 onward. (Employee's Brief, 4.) On May 3, 1992 while performing her appointed duties of patient care, she sustained injuries to her left arm, left shoulder and left side of her neck when she slipped on a wet floor. (Dec. 5.) The employee had numerous other work injuries resulting in pre-existing bilateral carpal tunnel syndrome with residual mild tingling in the fingers of the left hand with less in the right. (Dec 4, 6). The May 3, 1992 injury caused pain in both hands and spasms from her shoulders to her hands. Id.
The date of the slipping injury is May 3, 1992. The judge stated that the parties stipulated to a May 3, 1993 injury. (Dec. 3.) This is a scrivener's error. See Beene v. Amer. Tools Machine, 9 Mass. Workers' Comp. Rep. 92, 93 (1995).
The self-insurer paid § 34 temporary total weekly benefits "without prejudice" from May 3, 1992 through August 5, 1992. See G.L.c. 152, § 8 (1), as amended by St. 1991, c. 398, § 23 ("[a]n insurer which makes timely payments . . . may do so for a period of one hundred eighty days without affecting its right to contest any issue arising under this chapter"). The employee then filed a claim. A § 10A conference on that claim gave rise to an order requiring resumption of § 34 weekly compensation plus related medical benefits from August 6, 1992 onward. (Dec. 3.) The self-insurer appealed for a hearing de novo.
On April 29, 1993, Dr. Russell Butler conducted a medical examination pursuant to the provisions of § 11A. (Dec. 8.) The history he reported revealed a number of prior injuries. See Dr. Butler Rep. Following receipt of the § 11A report, the employee moved to compel the self-insurer to produce all documentation connected with the employee's prior industrial accidents sustained while working for the employer. The motion was granted. (Dec. 4.)
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 material 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.
On August 6, 1993, pursuant to 452 Code. Mass. Regs. 1.23 (1), the employee's motion to join three prior industrial injuries was allowed. See McFadden v. Sears, Roebuck and Co., 1 Mass. Worker's Comp. Rep. 267, 269 (1987) (encouraging joinder of multiple issues in the same hearing). So that the issues of causal relationship and ongoing disability could be properly addressed the joinder allowed included: 1) a January 31, 1989 upper back and neck injury caused by lifting a laundry bag; 2) a June 8, 1990 aggravation injury of her hand and wrist condition that required carpal tunnel release surgery on the right, caused by taking the blood pressure of patients; 3) and a June 13, 1991 upper back and neck injury sustained while trying to pull a falling patient back into bed. (Dec. 4, 6.)
452 Code. Mass. Regs. 1.23: reads in pertinent part:
(1) A party may amend his claim or complaint as to the time, place, cause, or nature of the injury, as a matter of right, at any time prior to a conference on a form provided by the Department. At the time of a conference or thereafter, a party may amend such claim or complaint only by filing a motion to amend with an administrative judge. Such a motion shall be allowed by the administrative judge unless the amendment would unduly prejudice the opposing party.
Next, on a ruling of complexity the parties were allowed to submit additional medical evidence. See G.L.c. 152, § 11A ("judge may, . . . authorize the submission of additional medical testimony. . . ."). (Dec. 9.)
The hearing de novo was conducted on August 6, 1993. At hearing, the employee sought §§ 34, 13, 30, and 13A benefits, and reserved her § 36 claim. The self-insurer did not challenge original liability for any of the injury dates but did contest incapacity, causation, proper notice and claim. It also denied entitlement to § 30 medical benefits and § 36 compensation. (Dec. 2.)
In the decision filed on July 19, 1994, the judge found the employee injured her left arm, shoulder and neck and worsened her carpal tunnel syndrome during the incident on May 3, 1992. (Dec. 3, 5.) The judge also credited the employee's testimony "regarding her inability to work as a nursing assistant and, . . . her ability to do lighter duty work such as accounting . . . if it was part-time . . . ." (Dec. 8.) On the crucial issue of causation, complicated by the variety of potentially related injury dates, the only finding entered was that the employee's current symptomatology had no causal relationship with the May 3, 1992 injury. (Dec. 12.)
The employee's benefits were terminated on a finding that the employee could work full-time in a position which does not require heavy lifting, repeated use of the arms above the shoulder or repeated lifting above shoulder height. (Dec. 12.) Finally, the judge found insufficient evidence to support a finding of improper notice and claim. (Dec. 12.)
This finding raises issues regarding the judge's assessment on the burden of proof of proper notice and claim, but as the self-insurer has not appealed the decision, we do not reach these threshold issues. See Botti v. General Electric Co. Sedwick, 10 Mass. Workers' Comp. Rep. ___ (November 12, 1996).
Based on the foregoing, both § 34 weekly compensation and §§ 13 and 30 medical benefits were discontinued, no § 13A attorney's fee was ordered and § 36 loss of function benefits were reserved. (Dec. 12.) The employee appeals from this decision.
INSUFFICIENT FINDINGS
The judge did not err in allowing additional medical evidence in light of the § 11A physician's opinion that the employee's condition would be better addressed by an orthopedic specialist. See Lebrun v. Century Markets, 9 Mass. Workers' Comp. Rep. 692, 695, 697 (1995); G.L.c. 152, § 11A(2)(iii). From then on however, problems abound.
Specifically, we find that the decision does not adequately comport with the requirements of § 11B, which require the judge to identify and set forth the issues in controversy, decide each issue, and to provide reasons for his conclusions sufficient for this board to determine whether he applied correct principles of law. See Fahy v. Prestige Stations, Inc./Atlantic Richfield, 9 Mass. Workers' Comp. Rep. 87, 88 (1995); Praetz v. Factory Mut. Eng'g. Research, 7 Mass. Workers' Comp. Rep. 45, 47 (1993).
Conclusions in a decision are meaningless unless adequately supported by findings for which there are evidentiary support.Praetz, supra at 46-47.
Where an industrial accident aggravates or causes a recurrence of pre-existing compensable injuries to the point of symptomatology, incapacity or medical treatment flowing therefrom is compensable under the Act. Wilson v. Perkins LaFrance, 9 Mass. Workers' Comp. Rep. 67, 70 (1995); Matthews v. Perini Corp., 6 Mass. Workers' Comp. Rep. 7, 8 (1992).
Placed squarely in issue were the following disputes. First, did the May 3, 1992 accepted industrial injury aggravate the employee's pre-existing medical condition? And second, was there any continuing causally related incapacity that arose from the 1992 work injury or from any of the three prior, 1989, 1990 or 1991 compensable injuries?
The judge responded to these issues with the following:
GENERAL FINDINGS
1. I do not find the employee persuasive of a total disability claim under § 34 of the Act.
2. Based on the opinions of Dr. Ritter and Dr. Butler, I find that the employee's current symptomatology is not causally related to the injury of 5/3/92.
3. Based upon the opinion of Dr. Ritter, I find the employee has reached a maximum medical benefit.
4. I find, based on the opinion of Dr. Ritter, that the employee can work full time in a position that reflects restrictions noted by him as of 03/30/94.
(Dec. 12.)
From these findings we learn only that : 1) there is ongoing incapacity; and it is 2) not related to the most recent 1992 industrial injury. Left entirely unaddressed is whether the employee's current medical conditions were aggravations or recurrences of any of the three prior compensable injuries. On remand, the judge must address all the issues.
INTERNAL INCONSISTENCIES
The decision suffers from several internal inconsistencies which can only be set aright by the finder of fact. Compare G.L.c. 152, § 11B with G.L.c. 152, § 11C.
General Finding Number 2, which speaks of no causal relationship between the employee's current symptomatology and the 1992 work injury does not coincide with the judge's subsidiary findings that on the same injury date the employee's accepted right carpal tunnel syndrome pain worsened to include spasms from the shoulder to both hands, where previously she had experienced only tingling limited to her hands and that anything done with the left hand continues to cause pain. (Dec. 5, 7, 8) We are left wondering whether or not the 1992 injury did cause the worsening found and if it did not, then was it caused by one of the other dates of injury in contest. The decision is silent in this regard.
General Finding Number 4, that responds to the parties' dispute on the employee's capacity to work, reflects to an extent, Dr. Ritter's March 30, 1994 deposition testimony wherein he opined that the "examinee did not sustain an injury in June of 1991 that has resulted in any permanent or partial impairment or an alteration in her ability to work" and that "she is eligible for work activities" with restrictions. (Dr. Ritter Dep. 14, 23; see Dec. 11.) However, this opinion adopted by the judge, does not fully support the work capacity finding because Dr. Ritter's opinion of no alteration in a full work capacity is limited to the June, 1991 injury and does not address the 1989, 1990 or 1992 injury dates. Furthermore, Dr. Ritter's opinion on work eligibility does not specify whether it is for full or part time employment. Moreover, the finding of full time work capacity, (Dec. 12) is obscured by the subsidiary finding that the employee "could do accounting work if it was part-time." (Dec. 8.)
The injury in June of 1991 was to the employee's upper neck and back sustained while pulling a patient into bed. (Dec. 4, 6.)
Finally, with regard to Dr. Ritter's § 11A opinion, the judge stated:
. . . I adopt his opinions that it is unlikely pain from possible osteophyte irritation would still be present and that modified work should be considered. I also adopt his opinion that her shoulder muscle complaints are not causally related to the herniated disc.
(Dec. 9.)
Thus, while we can be sure the employee's pain did not arise from the employee's osteophytes and her shoulder pain was not caused by her herniated disc, we do not know whether any relationship existed between these conditions and the work injuries. We, thus, remand for further findings on the issue of aggravation as it relates to all dates of injury.
INCAPACITY ASSESSMENT
Though the judge found no present relationship between the 1992 injury and the employee's medical disability on recommittal he must determine if her current conditions relate to any of the other work related injuries in dispute. In so doing, he must not only base his earning capacity conclusion on medical opinion, but also must consider and make specific subsidiary findings on how any causally related medical conditions impacted on the employee's earning power. See Scheffler's Case, 419 Mass. 251, 256 (1994); Frennier's Case, 318 Mass. 635, 639 (1945); and seeFragale v. MCF Indus., 9 Mass. Workers' Comp. Rep. 168, 171 (1995) (where evidence suggests partial medical disability is an issue, judge must address question of § 35 partial incapacity even though § 34 total incapacity benefits have been claimed).
CONCLUSION
In summary, because the findings are inadequate for appellate review, imprecise, and internally inconsistent we recommit the case for further findings. G.L.c. 152, § 11C. The judge is to specifically address the issues of causal relationship and aggravation for each of the compensable back, neck, arm and the carpal tunnel injuries occurring on January 31, 1989, June 8, 1990, June 13, 1991 and May 3, 1992. If indeed there is found a continuing relationship between any of the disputed work injuries and her medical condition, then he must also revisit the issue of the employee's earning capacity by considering her medical conditions, vocational factors and the credited lay testimony, as well as medical benefits under §§ 13 and 30 and attorney's fees under § 13A.
So ordered. __________________________ Carolyn N. Fischel Administrative Law Judge
__________________________ Edward P. Kirby Administrative Law Judge
__________________________ Sara Holmes Wilson Administrative Law Judge
Filed: January 24, 1997