Summary
In Lagos v. Mary A. Jennings, Inc., 11 Mass Workers' Comp. Rep. 109 (1997), we recommitted it for a specific determination of whether the employee had a pre-existing condition that would trigger a § 1(7A) analysis.
Summary of this case from Lagos v. Mary A. Jennings, Inc., NoOpinion
BOARD No. 02232993
Filed: January 31, 1997
REVIEWING BOARD DECISION
(Judges Fischel, Wilson and Kirby)
APPEARANCES
William T. Salisbury, Esq., for the employee on appeal.
Mary Ann Hurley, Esq., for the employee at hearing.
Andrew P. Saltis, Esq., for the insurer on appeal.
Paul J. Burke, Esq., for the insurer at hearing.
The insurer appeals from a decision in which an administrative judge awarded § 34 temporary total incapacity benefits to the employee for the emotional sequelae of a workplace injury to his neck. The employee suffered an acute post traumatic stress disorder when he was being prepared for surgery. His reaction was causally related to both his physical injury and serious emotional distress in his early childhood when he had been left alone at home in a dresser drawer. For the reasons stated below, we recommit the case.
We set forth the judge's subsidiary findings: The employee was injured at work on June 18, 1993, when a fragment of a heavy pin propelled by a co-worker's hammer blow struck him in the front his neck and lodged there. (Dec. 4.) The employee was immediately transported to Quincy Hospital where, while waiting for surgery, he experienced severe anxiety when a sheet was placed over his head. The employee had a memory flashback to the childhood confinement in a drawer, and thought he was now suffocating and would die. Id. Upon being released from the hospital, he suffered from panic attacks, inability to breath when lying down, insomnia, confusion, loss of appetite and loss of interest in socializing. (Dec. 5.)
The insurer paid the employee without prejudice, but denied his claim for continuing temporary and total incapacity compensation for both his physical and psychological injuries. The judge found no continuing incapacity due to the physical injury, but issued an order of payment on the psychological injury claim after a March 24, 1994 conference. (Dec. 1.) The insurer appealed to a hearing de novo. The employee did not appeal. Id.
The employee was examined by Dr. James M. Krainin, pursuant to G.L.c. 152, § 11A. Dr. Krainin diagnosed post traumatic depression anxiety disorder and panic disorder. He opined that the root cause of the diagnosed disorders was "the collective trauma of the patient's childhood," and that the predominant contributing cause was "his childhood trauma itself." (Krainin Dep. 15.) The referenced childhood trauma was the employee's having been restrained repeatedly in a dresser drawer when his mother would leave for work before his older siblings would arrive home from school. (Dec. 6.) The impartial physician further opined that the work-related cervical surgery was the trigger event for the post traumatic stress, and that the events leading up to the work-related cervical surgery constituted a major contributing cause of the employee's emotional disability. (Dec. 6, 8; Krainin Dep. 19.)
The judge adopted the opinion of Dr. Krainin, concluded that the employee was totally incapacitated and, inexplicably, found the predominant contributing cause of his impairment to be the work-place injury of June 16, 1994. (Dec. 9.) He found that the employee's pre-existing, latent tendency toward neurosis did not lessen the compensability of the neurosis that was a sequela of his bodily injury. Id. The judge concluded:
In the case at hand, the employee functioned without problems until his injury, or the treatment of his injury. . . . The disability is a result of a trauma, not an existing psychological condition. I find that the disabling condition is causally related to the neck injury and compensable. (Dec. 10.)
The judge awarded continuing § 34 benefits and medical benefits under § 30. (Dec. 11.) The insurer appeals to the reviewing board.
The insurer contends that the evidence does not support the judge's finding that the industrial injury was the predominant contributing cause of the employee's psychological incapacity. We agree, but that concern is not determinative of liability under the facts of this case. More important, we think, is that the judge's analysis diverges somewhat from that required by the Act. We undertake to describe the two alternative analyses required.
Cases of mental or emotional sequelae to work-related physical injuries are not governed by the 1991 amendment to the third sentence of § 1 (7A), which instituted for some cases of mental or emotional disability a new and higher causal relationship standard requiring that the work event or events constitute the predominant contributing cause of claimed emotional incapacity. An earlier version of § 1(7A), which set forth the standard as "a significant contributing cause," has been interpreted by the reviewing board as applying to mental or emotional injuries that arise directly out of and in the course of the employment, and not applying to mental or emotional disabilities which arise as sequelae to physical workplace injuries. Cirignano v. Globe Nickel Plating, 11 Mass. Workers' Comp. Rep. ___ (January 17, 1997). We will apply theCirignano analysis to the 1991 "predominant" cause standard, as that amendment merely changed the modifier, "a significant," to "the predominant" without changing any of the remaining language in the sentence.
That section provides in pertinent part:
Personal injuries shall include mental or emotional disabilities only where the predominant contributing cause of such disability is an event or series of events occurring within any employment.
G.L.c. 152, § 1 (7A), as amended by St. 1991, c. 398, § 14.
As of January 1, 1986, G.L.c. 152, § 1 (7A), as amended by St. 1986, c. 662, § 5 provided, in pertinent part:
Personal injuries shall include mental or emotional disabilities only where a significant contributing cause of such disability in an event or series of events occurring within the employment.
Applying Cirignano to this case, we conclude that the judge's application of the "predominant" cause standard of § 1 (7A)'s third sentence to this mental sequela fact pattern was error. The case does not involve a mental injury directly caused by workplace events. Under Cirignano, the case should have been analyzed as a question of simple causation: whether the necessary surgical treatment for the work-related physical injury caused, to any extent, the employee's emotional disability. Thus, while we agree with the insurer's objection that the judge erroneously found the work-related treatment to be the predominant cause of the emotional disability, the error is moot, because the judge was not required to apply the "predominant" standard.
The case must be recommitted, however, because the case presents facts which require a consideration of another standard of causation. That standard appears in the fourth sentence of § 1 (7A):
If a compensable injury or disease combines with a preexisting 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 added.)
G.L.c. 152, § 1 (7A) as amended by St. 1991, c. 398, § 14. This provision directs the judge, where the evidence suggests such a combination of causative factors, to determine whether the employee's workplace injury "remains a major but not necessarily predominant cause" of the employee's disability. See Robles v. Riverside Management, Inc., 10 Mass. Workers' Comp. Rep. 191, 195-197 (1996). This provision applies to all industrial injuries that combine with preexisting non-compensable conditions resulting from an injury or disease. It requires that such combination injuries undergo an analysis of whether the industrial injury "remains a major but not necessarily predominant cause of disability or need for treatment." (Emphasis added.)
In the record of this case there is evidence which suggests that the employee suffered from a combination injury governed by the fourth sentence of § 1 (7A). The judge adopted the opinion of the impartial physician, finding that "[t]he root cause of [the employee's emotional] disorder are (sic) the collective trauma of the patient's childhood" and that "the employee's waiting for surgery was a major contributing cause of the disability." (Dec. 6, 8, 9.) However, the decision lacks one critical finding that lies at the threshold of the § 1 (7A) "major" cause analysis: whether, due to the childhood events, the employee had a "preexisting condition, which resulted from an injury or disease," and which condition combined with his compensable injury to cause his mental disability.
Therefore, because the analysis of the fourth sentence of § 1 (7A) may apply to this case, we must recommit the case for further findings. If the judge finds a "pre-existing condition" within the meaning of § 1 (7A), he will need to determine whether the work-related incident of being prepared for surgery was "a major but not necessarily predominant cause of [the employee's emotional] disability" in view of the combination of that cause with the causal effect of the "pre-existing condition."
If the judge does not find that the employee's childhood events amounted to "an injury or disease not compensable under this chapter" that caused a condition, which pre-existed the onset of the employee's depression, then the judge should analyze the question of causation as an emotional sequela to a physical injury under the standard of Cirignano, supra. That standard of causation is whether the physical injury, along with its necessary treatment (i.e. the surgery), caused, to any extent, the employee's emotional disability.
Because the judge did not, based on the medical opinion, characterize the employee's childhood events, we are unable to determine whether the Cirignano standard or the fourth sentence of § 1 (7A) applies to our review. See Praetz v. Factory Mutual Engineering Research, 7 Mass. Workers' Comp. Rep. 45, 47 (1993). Recognizing that he was faced with a new and complex statute which then had never been presented to this board, we recommit the case for hearing. As the judge no longer serves the department, further proceedings shall be de novo. The parties may agree to use such parts of the record as do not present a credibility issue.
To summarize, if the judge finds on the evidence before him that the employee was disabled by a combination of a work place injury and a pre-existing emotional condition which resulted from an injury or disease, he shall apply the fourth sentence of § 1 (7A). If he finds that the childhood events were simply that — and not an injury causing an emotional condition that combined with the work place injury — then he must apply the analysis in Cirignano, supra, as the employee's post injury mental disability would be merely a sequela of a physical injury at work.
So ordered.
__________________________ Edward P. Kirby Administrative Law Judge
__________________________ Carolynn N. Fischel Administrative Law Judge
__________________________ Sara Holmes Wilson Administrative Law Judge
Filed: January 31, 1997