Opinion
Board No. 7884-85
Filed: February 14, 1995
REVIEWING BOARD:
Judges Kirby, Maze-Rothstein, and Smith.
APPEARANCES:
Jack D. Curtiss, Esq., for the employee.
Claire A. Gallagan, Esq., at hearing, Warren E. Tolman, Esq., and Dennis J. Bannon, Esq., on appeal, for the insurer.
The employee appeals from a decision on his claims for § 30 medical bills, §§ 34, 34A, 35 and 35B weekly wage replacement benefits, and § 36 permanent impairment benefits. The decision contained subsidiary and general findings but no order other than a sentence which denied the employee's claim for § 34 temporary total compensation benefits. Because the decision is arbitrary and capricious, we vacate it.
Craig L. Rowe received a personal injury arising out of and in the course of his employment for Lilly Industrial Coatings, Inc. on February 19, 1985. About two months later, he underwent a right L4-5 interlamininar laminotomy and disc removal. The insurer entered into an agreement as to compensation and began payments of temporary total compensation based on an average weekly wage of $251.21. Rowe agreed that the compensation could be discontinued when he returned to work on July 26, 1985. On February 27, 1986, the insurer resumed compensation payments. It paid temporary total compensation until March 30, 1986 when Rowe again agreed to a discontinuance upon his return to work.
Rowe worked as a mixer for Lilly until April 1987. For the next five months he worked as a motorcycle repairman for Sky Cycle. Then he worked as a car salesman until April 1988. He asserts that he stopped work in April 1988 because of his back condition caused by the Lilly injury. In 1988 Rowe filed two claims for further compensation: for unpaid medical bills, incapacity commencing April 4, 1988 and permanent impairment. These claims were denied at conference. Rowe appealed for hearing. By offer dated seven days prior to the hearing, the insurer offered to pay sums for § 36 permanent impairment and medical bills.
After hearing, the judge rendered a decision apparently denying all claims. He concluded that the employee failed to sustain the burden of proving an industrial injury or aggravation after his injury on February 12, 1985. In his subsidiary findings, he relies, among others, on several "facts": 1) "Dr. Miller's notes of October 3, 1988, indicated that the employee had a minor strain which aggravated his back." (Dec. 5.) In Dr. Miller's June 16, 1989 medical report, "the doctor stated that the employee suffers from chronic back strain with a date of onset of February 1988, and the doctor stated that this condition was not the result of an accident." (Dec. 6.) 2) Dr. Osama Al Masri reviewed the MRI on October 31, 1989 and found it unremarkable. 3) Dr. Walter Carver did not relate the employee's condition on his May 7, 1990 examination to the 1985 work injury. 4) The employee left work for Lilly in February 1987 to take abetter paying job. The evidentiary basis for these findings is attacked by the employee.
As grounds for appeal, the employee argues that the decision is based on facts which are not supported by the record and is inadequate for appellate review. Because the judge misconstrued key medical evidence and found facts not based on the record, we must vacate the decision. Audette's Case, 5 Mass. App. Ct. 867 (1977); Bonneau v. Acme Automotive Center, 7 Mass. Workers' Comp. Rep. 207 (1993).
Evidence of a prior inconsistent opinion as to the cause of incapacity which a medical expert had once entertained, but abandoned at the time of deposition, does not create substantive evidence of the prior opinion. Perangelo's Case, 277 Mass. 59, 64, 177 N.E. 892 (1931). Disbelief of any particular evidence does not constitute positive evidence to the contrary. New Boston Garden Corp. v. Bd. of Assessors, 383 Mass. 456, 472, 420 N.E.2d 298, 307 (1981); Cohen v. Bd. of Registration in Pharmacy, 350 Mass. 246, 251-252 (1966); Salisbury Water Supply Co. v. Dept. of Public Utilities, 344 Mass. 716, 721, 184 N.E.2d 44 (1962); Liacos, Massachusetts Evidence § 1.3.3 at 10 (6th ed. 1994).
When the issue of causal relation is beyond the common knowledge and experience of a layperson, as in the case of a back injury, the administrative judge must rely on medical expert testimony. Galloway's Case, 354 Mass. 427 (1968). Even if the medical testimony offered is uncontradicted, it is within the administrative judge's authority as factfinder to determine the probative value of the testimony and reject it if he finds it unpersuasive. However, in rejecting uncontradicted medical testimony, the judge must clearly and sufficiently express his reasons for doing so. Kilroy v. Zam Cul/Norfolk Bristol Ambulance, 4 Mass. Workers' Comp. Rep. 381 (1990); Robinson v. Contributory Retirement Appeals Board, 20 Mass. App. Ct. 634, 639 (1985). The judge here failed to acknowledge the deposition testimony. His rejection of the deposition testimony without explanation, and his findings based instead on prior reports, were arbitrary and capricious.
The opinion of an expert which must be taken as his evidence is his final conclusion at the moment of his testifying. Buck's Case, 342 Mass. 766, 770 (1961). Dr. Miller at his deposition opined that Rowe had significant physical limitations from his back condition. (Dep. 11, 14, 34-35.) In his opinion, Rowe's back pain was causally related to his 1985 work injury. (Dep. 12-13, 31-32, 43-44.) His causation opinion was supported by Dr. Al Masri who reviewed the MRI and opined that Rowe's back pain was caused by the development of scar tissue as a result of his 1985 surgery. (Dep. 8-9, 11-16, 26, 36.) The only medical testimony in the case on the causation issue supported a causal relationship between the 1985 injury and the increased symptoms in 1988.
The finding that Dr. Carver "did not relate the 1985 injury to the employee's present condition," Dec. 7, was a distorted and capricious interpretation of Dr. Carver's report. In the history section of the report, the doctor related the 1985 work injury, subsequent disc surgery and then reported that the employee was unable to carry out his job. In the X-ray section, the doctor indicated that there was evidence of intervertebral disc surgery with L5 narrowing and evidence of probable scar formation. His diagnosis was: 1. history of low back strain, February 19, 1985; 2. history of major back operation, April 1985; 3. persistent low back symptoms since February 1985; 4. aggravation of low back symptoms since February 1987; 5. probable intervertebral disc scar formation with left L5-S1 radiculopathy, postoperative. (Carver report, May 7, 1990.)
The doctor perhaps had an inaccurate history. He reported: "On his own, he found a desk job working for a motorcycle company. He stayed at this job for approximately 10 months, and then due to persistent pain in back radiating down the back of his leg, he stopped working and then started a different occupation as a used car dealer. This, he continued until February 1987. At this time, due to persistent back distress, he stopped working and has not worked since."
The finding that the employee left Lilly's employ to take a better paying job is also unwarranted. John White, an employee of Lilly testified that the employee left work for Lilly on February 27, 1977 to take another job. (Tr. 7.) Joseph Laberge testified that the employee began work at Sky Cycle as a mechanic in March 1987. (Tr. 19.) Laberge did not testify about the employee's wages. The employee testified that he had asked to be retrained, the company refused, so he left work in February 1987 "to get out of that position where it wasn't doing my back any good." (Tr. 35.) According to the employee, his job change was to obtain work more suitable to his on-going back problems. (Tr. 36.) There is no evidence in the record which would support the subsidiary finding that he left Lilly's employment in February 1987 to take a better paying job and make more money. See Dec. 7.
In this proceeding for further compensation, the employee had the burden of establishing by a preponderance of the credible and reliable evidence that his unemployment was causally related to the residual effects of his injury. The judge's mistaken beliefs that Dr. Carver did not relate the employee's current condition to the 1985 injury and that the employee left work for the injury-employer to take a better paying job thus went to a central contention in the case. The findings were arbitrary and capricious. The errors injuriously affected substantial rights of the employee and mandate a new hearing. G.L.c. 152, § 11C; Cibene v. Brentwood Realty Trust, 8 Mass. Workers' Comp. Rep. 143 (1994).
Because the decision is based upon unwarranted subsidiary findings and did not disclose reasoned decision-making regarding the issues in dispute, we vacate it. As the hearing judge no longer serves in the department, we remand the case to the senior judge for reassignment to a different administrative judge for hearing de novo. We suggest that in the interest of judicial economy and efficiency the case be decided, insofar as practicable and where there is no issue of witness credibility, on the transcript and extensive evidence admitted by the former judge. See Nartowicz's Case, 334 Mass. 684, 686 (1956).
So ordered.
Judges Kirby and Maze-Rothstein concur.