Opinion
BOARD No. 12170-82
Filed: November 28, 1995
REVIEWING BOARD DECISION
(Judges Wilson, Fischel and McCarthy)
William Link III, Esq., for the employee.
Paul F. Benoit, Esq., for the insurer.
The insurer appeals from the administrative judge's decision awarding weekly compensation and related benefits for permanent and total incapacity under § 34A from June 5, 1989 and continuing. The insurer maintains that the judge erred in the first instance by finding the employee's incapacity for work causally related to the industrial injury and then by finding the employee's incapacity permanent and total. Because the decision lacks sufficient findings of fact to enable us to determine whether the judge applied correct principles of law in awarding § 34A benefits, we recommit the case. See Praetz v. Factory Mutual Engineering Research, 7 Mass. Workers' Comp. Rep. 45, 46-47 and cases there cited (1993); Crapps v. Western Mass. Electic Co., 8 Mass. Workers' Comp. Rep. ___ (December 5, 1994).
The Case History
As found by the administrative judge, the employee was fifty three years old at the time of the hearing, went to a trade school and after discharge from the army, where he served as a military policeman and automobile repairman, worked as an auto body repairman for some nineteen years. He then was a machine operator for Bemis Paper from 1979 to 1980, when he began working as a revolver assembler for Harrington Richardson. The industrial injury occurred on February 9, 1982. The employee felt pain in his back while lifting a 30-50 pound tray and placing it on his bench. He left work after the incident, attempted to work the next day but was sent home. Following two weeks of bedrest the employee again unsuccessfully attempted a return to work, and has not worked since.
The insurer accepted the employee's claim for § 34 temporary, total compensation. A subsequent claim for unpaid medical bills was filed in 1987, and at conference on March 16, 1990, the administrative judge allowed employee's motion to join a claim for § 34A benefits, his § 34 benefits being exhausted on June 4, 1989. The employee appealed the conference order denying both the § 34A claim and payment of the medical bills. After hearing de novo the judge's decision awarding those benefits was appealed to the reviewing board by the insurer.
The Medical Findings
Following back surgeries to correct left side radiculopathy along the L5 nerve root in August 1982 and to remove the L4-5 disc in August 1983, the employee in 1985 was referred by his treating neurosurgeon to Dr. Butler, a neurologist, for diagnosis of symptoms other than those related to the low back. These included problems with the left arm, feelings in his face, hearing, and generally decreased sensation and movement on the left side. Dr. Butler's diagnosis, after three years of treatment and testing, was 1) probable multiple sclerosis, 2) osteoarthritis of the neck causing pain and dysfunction of the left arm, 3) arachnoiditis increased protein in the spinal cord causing clumping of the nerves, and 4) degenerated lumbar disc due to the previous herniated disc. Subsequently, Dr. Butler altered his previous 1986 recommendation that the employee seek accommodated employment or vocational rehabilitation and opined that he was chronically unemployable, that he would have trouble envisioning a job he could manage, and that the employee could sit at a sedentary job only a matter of moments. The administrative judge adopted these opinions as well as Dr. Butler's opinions that the low back problem and the arachnoiditis were caused by the work injury and related surgery, while the cervical arthritis and multiple sclerosis were likely not related to the industrial injury (Dec. 6, 10). In attempting to allocate the impact of the employee's various conditions on his ability to work, the judge also relied on Dr. Butler's opinion that the employee was less likely to be unemployed because of multiple sclerosis than from a back problem such as the employee's, that it was back and leg pain that most significantly contributed to the employee's disability, and that the fatigue and depression related to his multiple sclerosis were of lesser significance to his determination that the employee was disabled (Dec. 6, 9-10).
The Findings as to Physical Limitations
The administrative judge made several findings on the extent of the employee's physical limitations, including back-related pain, as part of his analysis of degree of incapacity (Dec. 6, 9). The judge ultimately concluded that those limitations, together with the employee's limited education and lack of experience in work other than physically demanding labor, rendered him permanently and totally incapacitated (Dec. 9). Finding the employee credible as to his outdoor activities, the judge specifically addressed and found no inconsistency between his relatively passive recreational activities of hunting and fishing and the employee's allegations on his physical limitations (Dec. 8). Nonetheless, we agree with the insurer's contention that the judge stopped short of the necessary findings of fact and complete analysis of physical disability when he omitted any consideration of the employee's testimony about his more physically demanding activities. Our review of the transcript reveals that the employee candidly testified to physical activities that the judge also should consider in relation to both Dr. Butler's understanding of the employee's physical limitations and the ultimate conclusion on incapacity. Among the employee's activities that remained uncommented upon by the judge when he adopted Dr. Butler's opinion on medical disability are:
— housework, including vacuuming, dishes and all the grocery shopping (Tr. 22-24);
— mowing the lawn with a Toro mower and riding tractor (Tr. 24, 33-34);
— helping his son clear a wooded lot of trees and cutting wood with a light chain saw during 1988, 1989, and in 1990 up to the week before hearing (Tr. 29-33, 57);
— two week, 70 mile, annual trips to Vermont where he hunts in the woods about five hours daily for eight or nine days (Tr. 35-40);
— twelve to fourteen annual, summer weekend trips to Vermont hunting camp, 70 miles each way, where he does most of the cooking for his friends (Tr. 40-41);
— trips to Millinocket, Maine (Tr. 43-44);
Although no evidence was submitted on the length of the trip from Westminster, Mass. to Millinocket, Maine, judicial notice may be taken of distance between two points. See Crowe v. Ward, 363 Mass. 85, 87 (1973), citing Hughes, Evidence § 79.
— helping friends and his son with auto body repair (Tr. 44-46);
— operating a snowblower (Tr. 55);
The Analysis and Findings on Recommittal
On recommittal the judge should first consider the employee's testimony regarding his more physically demanding activities, and then determine whether, in view of any supplementary findings on those activities, Dr. Butler's expert opinion as to work and extreme sitting limitations is either inconsistent with the employee's testimony or lacks sufficient evidential foundation. Although the extent of medical limitations and the causal relationship of those limitations to a work injury are matters usually beyond the common knowledge and experience of lay persons and require expert testimony, the weight assigned an expert's opinion is dependent upon the accuracy of the facts assumed by the expert. See Galloway's Case, 354 Mass. 427, 431 (1968); Cormier's Case, 337 Mass. 714, 716 (1958). As we said in Scali v. Mara Products, Inc., 6 Mass. Workers' Comp. Rep. 78, 80 (1992), "the history upon which the medical expert relies is crucial to his opinion." While we in no way suggest what conclusions the judge should draw from the employee's testimony on his various activities, additional findings on those activities are necessary for a proper determination of whether Dr. Butler's opinion is sufficiently grounded in the evidence, and ultimately, for a conclusion on the degree of incapacity.
The administrative judge concurred in Dr. Butler's observation that he had trouble envisioning a job the employee could manage, and the doctor opined the employee could sit at a sedentary-desk job for only a matter of moments. We note that the employee's testimony was that he usually moves after sitting one half hour or forty five minutes (Tr. 22).
The administrative judge made factual findings that support his determination that there is a causal relationship between the employee's back condition and the industrial injury but that the multiple sclerosis is not causally related to the industrial injury. The analysis is not entirely clear, however, when we examine the basis for the judge's finding that the employee's "disability" is causally related to the industrial injury (Dec. 9). As a foundation for that general conclusion, the judge adopted the opinion of Dr. Butler that "a person such as the employee was less likely to be unemployed because of multiple sclerosis than from a back problem such as the employee has, that it was the back and leg pain that most significantly contributed to the employee's disability, and that the fatigue and depression related to the multiple sclerosis were of lesser significance in making his determination that the employee was disabled." (Dec. 9-10). Because the judge carefully segregated the employee's multiple conditions when he found causal relationship between back condition and the work injury and no causal relationship to the multiple sclerosis, we assume that in reaching his ultimate conclusion he did not combine the effects of the work-related back condition with the effects of the unrelated multiple sclerosis to find incapacity. Consideration of combined effects is appropriate where a work injury aggravates a previously existing health condition, and an employee under those circumstances may properly recover for his entire impairment without apportionment. See Zerofski's Case, 385 Mass. 590, 593 and cases there cited (1982); Madden's Case, 222 Mass. 487, 494-496 (1916). We undertake a different, narrowly focused analysis, however, where the employee suffers a work-related impairment followed by a disease unrelated to employment. The determination in the instant case is whether the present incapacity for work is caused not by a combination of the effects of the work injury and unrelated injury or disease, but solely by the work-related back condition. See Hummer's Case, 317 Mass. 617, 620, 623 (1945). Any disabling effects of disease that are not causally related to the work incident are irrelevant to a determination of whether the work-related condition in isolation has rendered the employee permanently and totally incapacitated. Id. at 623. Hence, the judge's task is to view the circumstances with something akin to tunnel vision and to narrowly focus on and determine the extent of physical injury or harm to the body that is causally related solely to the work injury. Then, if there is no evidence to show that the incapacity that was compensable under § 34 has lessened or diminished, and if the work-related physical impairment alone causes an impairment of earning capacity that is total and permanent, an award of weekly benefits under § 34A properly follows. See Gramolini's Case, 328 Mass. 86, 88-89 (1951); Hummer's Case, supra at 623. Since we are returning the case to the administrative judge for further findings, it would be helpful if the ultimate determination of incapacity is supported by specific findings made in accordance with Hummer's Case, supra. As part of that analysis, the administrative judge should revisit his findings that in 1986 Dr. Butler recommended that the employee get his employment restructured or seek vocational rehabilitation and that later, the doctor opined that such a course was no longer recommended. The judge should determine whether Dr. Butler's 1986 opinion represents evidence of decreased physical impairment at that time and, if so, whether the later reversal of opinion was due to the work-related back condition or the non-compensable effects of multiple sclerosis.
The definition of "personal injury" has been legislatively narrowed for injuries occurring subsequent to the December 23, 1991 effective date of G.L.c. 152, § 1(7A), as amended by St. 1991, c. 398. That provision, deemed substantive, now 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.
As a final matter, we now have the benefit of the decision inScheffler's Case, 419 Mass. 251 (1994), that restates the two elements of incapacity for work for which compensation is awarded: a "medical element" that is based upon expert testimony, and an "economic element" that is for the judge to determine on all the expert and lay evidence. Id. at 256, citing L. Locke, Workmen's Compensation § 321, at 375-376 (2d ed. 1981). Although the instant case, unlike Scheffler's Case, doesn't involve a § 11A impartial medical examiner, we think the import of the decision and its reliance on Locke's work is that expert medical opinion is limited to "an appraisal of the medical effect of a physical injury on the individual claimant" and its causal relationship to an alleged work incident or condition. Id. at 256. Therefore, if a medical doctor strays too far into the vocational and economic aspects of the administrative judge's responsibility for determining the degree of impairment of earning capacity, the judge must carefully consider the probative value and weight to assign to that portion of the medical opinion. Accordingly, the judge in this case should assess anew his adoption of Dr. Butler's opinion that the employee "was chronically unemployable[,]" (Dec. 5, 9) and that he had "trouble envisioning a job he could manage." (Dec. 5, 9). In the end it is for the judge to determine the vocational impact of work-related physical impairment or disability on the capacity to earn income. See Frennier's Case, 635 Mass. 639, 640 (1945); Scheffler's Case, supra at 256-257 and n. 3.
This case is recommitted to the administrative judge for further findings of fact consistent with this opinion.
So ordered.
_________________________ Sara Holmes Wilson Administrative Law Judge
_________________________ William A. McCarthy Administrative Law Judge
Filed: November 28, 1995
The power to remand should not be misused. Since 1991 our standard of review under G.L.c. 152, § 11C has called for reversal if a decision is beyond the scope of authority, arbitrary, capricious or contrary to law and has allowed for recommittal "when appropriate". Recommittal is appropriate when "the form and the substance" of a hearing decision is lacking. See Donahue v. Petrillo, 8 Mass. Workers' Comp. Rep. 25, 31-32 (1994). Recommittal is also appropriate and legally necessary when there is "real doubt whether the judge fully understood the principles of law he was to apply", or where the process of reasoned decision making falls short. Id. at 32.
The administrative judge's decision here suffers from none of these defects. Further, as the sole ground for this appeal, the insurer has impermissibly requested that we reweigh the evidence, citing the now defunct portion of Lettich's Case, 403 Mass. 389 (1988), which predated the 1991 amendment to our § 11C standard of review eliminating that fact finding power. Rather than respond that we will not reweigh the evidence, the majority undertakes the task, picking out portions of the evidence it apparently would weigh differently from the way the judge did when he weighed the evidence properly and reached appropriate legal conclusions.
First, there is no merit to the majority's contention that the judge "omitted any consideration of the employee's testimony about his more physically demanding activities". The judge specifically wrote that he considered the outdoor activities:
I find the employee testified credibly about his outdoor activities. He testified and I find that he continues to participate in hunting activities with his friends, however he testified and I find that his participation is of a lighter nature, consists largely of walking in the woods and that the employee does not assist in the carrying or dressing of deer. The employee testified and I find that he continues to fish off a beach several times a week, four to five weeks a year, at a beach some six to seven miles from his home. I find such a level of participation in outdoor activities to not be inconsistent with the employee's allegations as to his physical limitations. (Dec. 8.) (Emphasis added).
The judge tells us that he considered the outdoor activities, including hunting and fishing, along with the rest of the evidence. The judge, not the reviewing board, weighs the evidence and finds the facts. G.L.c. 152, §§ 11B, 11C. And the fruit borne of the judge's weighing process was the ultimate conclusion that the employee's level of participation in his pre-injury outdoor activities had diminished to a level consistent with the physical restrictions. That conclusion was well supported by the evidence.
Moreover, the majority in effect challenges credibility findings that are the exclusive province of the hearing judge. Lettich, supra at 391, 394. The judge credited the employee's testimony (Dec. 8), which included testimony that he could not sit without discomfort and needed to get up and move around every half hour or forty five minutes. (Tr. 19, 22, 25.) In suggesting that on remand the judge take judicial notice of the distance covered during the employee's once yearly trip to Maine, the majority implies that by the journey's length, the employee's testimony is discredited or implies he has an earning capacity. Such findings exceed our scope of review. See G.L.c. 152, § 11C.
Nor is there validity to the majority's contention that it is "not entirely clear" how the administrative judge evaluated incapacity from the work related back surgeries, as distinct from the effects of his unrelated multiple sclerosis. The judge correctly evaluated the employee's medical disability considering only his industrial injury.
The judge found the employee, a physical worker with a trade school education, had twice undergone back surgery because of a February 9, 1982 work injury. (Dec. 4.) The judge also adopted a medical opinion that it was the work related back and leg pain that most significantly contributed to the employee's disability and rendered him unemployable. (Dec. 6.) The judge found:
For this February 1982 industrial injury, an employee is taken "as is". There is no legal requirement that sequelae of a 1982 work injury be the "most significant" contributor to incapacity. The employee thus was found to have met even a higher standard than legally necessary.
I find disability to be causally related to the industrial injury. In so finding I further adopt the opinion of Dr. Butler insofar as he believed that a person such as the employee was less likely to be unemployed because of multiple sclerosis than from a back problem such as the employee has, that it was the back and leg pain that most significantly contributed to the employee's disability, and that the fatigue and depression related to the multiple sclerosis were of lesser significance in making his determination that the employee was disabled. (Dec. 9-10.) (Emphasis added).
Relying on this doctor's opinion, the judge found that had the employee only suffered from multiple sclerosis, he would have been more likely to be working, but that the pain from his work related condition rendered him medically disabled. (Dec. 6, 9.) There can be no doubt that the judge, mindful of the applicable law, adroitly evaluated the related and unrelated medical conditions.
While the above finding more than sufficed, the judge made additional specific findings supportive of his conclusion that the employee was incapacitated by reason of the work injury. Similarly, in these finding there is nothing to suggest that the unrelated condition muddied his analysis:
In reaching that conclusion I have adopted Dr. Butler's opinion as to how to attribute the impact of the employee's various conditions on his ability to work. I find, consistent with both testifying experts, that the employee's back condition, including the radiation of pain and numbness in his lower extremities, is causally related to the industrial injury. I find, again consistent with both experts, that the multiple sclerosis is not causally related to the industrial injury. (Dec. 10.) (Emphasis added).
To even suggest that the effects of the multiple sclerosis were included by the judge in evaluating the work related condition is baseless. The choice of medical expert opinion is for the judge, not the reviewing board. See G.L.c. 152, § 11C; Amon's Case, 315 Mass. 210 (1943).
The record amply supports causality between the employee's incapacity and the February 1982 work injury. The judge weighed all the lay and expert testimony, and correctly applied the law considering only the impact the work related condition made on the employee's earning capacity. He did not mix the multiple sclerosis condition into this evaluation. Finally, he properly considered the vocational factors set forth in Frennier's Case, 318 Mass. 635 (1945), and in Scheffler's Case, 419 Mass. 251, 256 (1994). In short, the judge took a difficult case and performed an exemplary job of adjudication. When such work is second guessed under the guise of recommittal, not only have we exceeded our standard of review under § 11C, but we have undermined the very process we are charged to protect. The decision of the administrative should be affirmed.
_________________________ Carolynn N. Fischel Administrative Law Judge