Opinion
BOARD No. 04788893
Filed: July 16, 1998
REVIEWING BOARD DECISION
(Judges Fischel, Levine and Wilson)
Judge Fischel participated in panel discussions, but no longer serves as a member of the reviewing board.
APPEARANCES
William E. Howell, Esq., for the employee.
Frank McNamara, Esq., for the insurer at hearing.
James R. O'Leary, Esq., for the insurer on brief.
The insurer appeals from the decision of an administrative judge which found the employee totally and permanently incapacitated; it argues that the finding is unsupported by a medical opinion. We agree, reverse the decision, and recommit the case.
Ella Shand was sixty-seven years old at the time of the hearing. Beginning in 1970, she worked as a waitress/hostess in the piano bar of the Lenox Hotel. (Dec. 449.) On Friday, October 29, 1993 she fell and struck both knees when she slipped on a greasy floor. She felt soreness in her left knee. She reported the incident immediately but finished her shift. When her left knee swelling continued, she sought medical treatment the following Monday. She was initially diagnosed with a severe knee strain which was anticipated to keep her out of work for six to eight weeks. The pain and swelling did not subside and a December 1993 MRI revealed a tear in the left knee. She underwent corrective surgery and has not returned to work. (Dec. 450.)
The insurer commenced § 34 temporary total incapacity payments. Thereafter, the insurer filed a complaint to modify or discontinue those payments. At the § 10A conference on the insurer's complaint, the judge joined the employee's claim for § 34A permanent and total incapacity benefits; he denied both the insurer's complaint and the employee's claim. The employee appealed and the matter proceeded to a hearing. (Dec. 448-449.)
On April 26, 1996 the employee was examined by Dr. Philip Salib, the § 11A impartial examiner. Dr. Salib diagnosed longstanding, pre-existing degenerative left knee changes (osteoarthritis and arthrosis), status post arthroscopic surgery for a medial menisectomy, debridement and excision of a loose body. He opined that the employee had been temporarily totally disabled from the day of her injury until after her surgery and partially disabled, with a sedentary earning capacity, thereafter. Dr. Salib further opined that the meniscus tear was causally related to the employee's work injury but that her current disability related to her pre-existing degenerative changes rather than her work injury. Dr. Salib stated that the left knee was asymptomatic until her work injury, that the work injury caused a partial and temporary aggravation of the degenerative changes and that a complete recovery from the effects of the injury should be expected one to two months after surgery. (Dec. 451-452.) The employee filed a motion to introduce additional medical evidence due to the complexity of the medical issues. (Motion, October 2, 1996.) She later added the grounds that the impartial report and deposition testimony were inadequate, which argument the judge rejected. (Addendum, February 18, 1997; Tr. 100.) The judge never ruled on the employee's medical complexity argument.
In his decision the judge adopted so much of Dr. Salib's opinion that causally related the meniscus tear to the employee's work injury; he accepted both that degenerative changes were present in her left knee prior to her injury and that she is currently disabled due to knee pain. He rejected that part of Dr. Salib's opinion causally relating her current disability solely to her pre-existing degenerative disease. The judge explained
I take note of the disparity of the condition of the employee's two knees. The injured left knee is symptomatic, while the right knee, which was not injured at work in 1993, has remained asymptomatic.
The employee's left knee was asymptomatic prior to the injury. Since that injury, she has continually suffered disabling knee pain. The doctor and I agree on those last two sentences. It was the work injury which aggravated the previously asymptomatic condition. An employer and insurer must take the employee as they find her. Thus, they must accept her and her pre-existing degenerative disease. I find the employee to be credible when she relates the history of this case, and her description of her pain since the injury.
Since the employee was asymptomatic prior to the injury; and has suffered left knee pain since the injury; and that knee pain has disabled her; and since there are no intervening causative agents; the employee's continuing disability is the result of her work injury in combination with her pre-existing degenerative condition. But for the 1993 work injury she would today be asymptomatic. Anderson v. Anderson Motor Lines, 4 Mass. Workers Comp. Rep. 65, 66-67 (1990)
. . .
I find that the employee is permanently and totally disabled as a result of her work injury suffered on October 29, 1993. In making this determination, I rely on the employee's credible testimony, and on the parts of Dr. Philip Salib's report which are consistent with this decision. I rely on the employee's credible testimony that she has suffered continuously from left knee pain since her October 29, 1993 work injury. I accept that the continuing pain is due in part from the employee's pre-existing degenerative changes in her knee. However, I find that but for the 1993 work injury, those degenerative changes would have remained asymptomatic. There is a clear causal connection between the employee's pain and the work incident. The employee was completely asymptomatic prior to the incident, and has suffered unremitting pain since then.
(Dec. 453-454.)
In its appeal the insurer argues that the finding of permanent and total incapacity lacks expert evidentiary support. The insurer correctly states that Dr. Salib, who provided the only medial evidence, opined that there was no causal relationship between the work injury and the employee's current symptomatology and that, with no other medical evidence in the record, the judge could not fill the evidentiary gap himself.
It is well established that all findings must be grounded in the evidence. Cambria v. M.B.T.A., 9 Mass. Workers' Comp. Rep. 277, 279 (1995). It is further well established that where medical issues are beyond the expertise of the fact finder, "expert testimony is needed to establish disability and causal relationship between a claimed incapacity and an industrial injury." Miller v. M.D.C., 11 Mass. Workers' Comp. Rep. 355, 357 (1997). See also Josi's Case, 324 Mass. 415, 418 (1949), andGalloway's Case, 354 Mass. 427, 431 (1968). The judge here was constrained to make his findings on causal relationship based on the medical evidence. The sole medical evidence was Dr. Salib's opinion that the employee's current disability was not causally related to her industrial injury. (Dec. 452-453.)
The judge specifically rejected Dr. Salib's uncontroverted opinion that there was no causal relationship between the work injury and the employee's present disability. (Dec. 453-454.) However, that uncontradicted opinion was prima facie evidence of all requisite medical matters contained therein. G.L.c. 152, § 11A(2); Scheffler's Case, 419 Mass. at 251, 258-259 (1994). "Prima facie evidence, in the absence of contradictory evidence, requires a finding that the evidence is true." Anderson's Case, 373 Mass. 813, 817 (1977). The reasons cited by the judge for his disregard of the medical opinion — e.g., that the employee was asymptomatic before the injury and symptomatic afterward and that the employee's uninjured right knee was never symptomatic — are without merit. These were facts that Dr. Salib had before him when he rendered his expert opinion on causal relationship (Dec. 452; IR Ex. 2; Dr. Salib dep'n pp. 10, 11, 21, 24, 36); they cannot support the judge's contrary conclusion on that issue. Cf.Scheffler's Case, supra at 259 (impartial physician's opinion not afforded status of prima facie evidence where it was based on inaccurate factual assumptions regarding the requirements of the employee's job). The judge's lay opinion on medical causal relationship cannot replace the doctor's. The judge's award of benefits cannot stand. See Fowler v. N.E. Cartage Corp., 9 Mass. Workers' Comp. Rep. 463, 465-466 (1995); Soderbaum v. Belchertown State School, 9 Mass. Workers' Comp. Rep. 501, 502 (1995).
Nonetheless, the reviewing board must assure that the § 11A impartial physician system is administered fairly. SeeO'Brien's Case, 424 Mass. 16, 23-24 (1996). "[I]f the judge performs [his] function correctly [under § 11A(2)], the parties will be granted the [opportunity to present additional medical testimony] where this . . . testimony would serve some legitimate function." O'Brien's Case, supra at 22. In the present case, the employee appropriately moved that additional medical evidence be introduced due to the complexity of the medical issues and the inadequacy of the impartial report and deposition testimony. (Tr. 91-92; Employee's Motion, October 2, 1996 and Addendum, February 18, 1997.) The judge denied the employee's motion as to the inadequacy of the report. (Tr. 100.) However, the judge did not rule on the question of medical complexity. Because the judge's handling of the medical evidence in this case raises fundamental questions regarding the proper administration of the § 11A impartial medical system, we think it is appropriate to recommit the case for a ruling on the medical complexity issue. See Driscoll v. M.B.T.A., 11 Mass. Workers' Comp. Rep. 428, 430 (1997).
This is so even though the employee has not cross appealed, and the insurer seeks reversal. The general rule is that "failure to take a cross appeal precludes a party from obtaining a judgment more favorable to it than the judgment entered below." Boston Edison Co. v. Boston Redevelopment Auth., 374 Mass. 37, 43 n. 5 (1977) (emphasis added). Here, the employee prevailed outright in the decision on review. Although that decision was erroneous for the reasons stated, it certainly satisfied the employee's interest in the litigation, that of obtaining § 34A benefits. The reviewing board's disposition cannot yield a result more favorable to the employee than the judge's award in the hearing decision. See Hartford Ins. Co. v. Hertz Corp., 410 Mass. 279, 288 (1991). "The rule of practice stated above is a useful one that is applied in the ordinary case. Based on the circumstances of this case, however, we do not consider [the employee's] failure to file a cross appeal as diminishing her rights." Id. (emphasis added.) The employee has a right to a ruling on her medical complexity motion, which was timely and appropriately raised in the hearing. See § 11B (judge must set forth issues in controversy, and his decision on each). See alsoAetna Casualty Surety Co. v. Continental Casualty Co., 413 Mass. 730, 734-735 (1992) (prevailing party entitled to argue on appeal that judge was right for wrong reason, even if party relies on principle of law not argued below). We also take guidance from the appeals court in O'Connor v. City Manager of Medford, 7 Mass. App. Ct. 615 (1979). In that case, the court decided an appeal in favor of the appellee, which had taken no cross appeal, on the basis of a ground not argued by that party.Id. at 618-619. The court cited "compelling circumstances in which an appellate court can and should correct an erroneous judgment in the absence of a cross appeal" and warned that "[o]ur judicial system is not `a mere game of skill or chance' in which the judge is merely an `umpire.'" Id. The circumstances here warrant a recommittal for the judge to consider whether additional medical evidence is appropriate in order to properly address the medical issues; this comports with the spirit ofO'Brien's Case, supra, even though the issue has not been argued on appeal.
We note that the judge made no mention of the motion for additional medical evidence in his decision. Better practice would be to include his rulings in the decision itself.
Accordingly, we reverse the decision. We recommit the case to the administrative judge to rule on the employee's motion for a finding of complexity of the medical issues. If the judge finds the medical issues complex, he shall admit additional medical evidence and then make further findings on the compensability of the employee's present disability using the current version of § 1(7A) applicable to this 1993 date of injury.
The judge stated in his decision that "[a]n employer and insurer must take the employee as they find her." (Dec. 453.) This "as is" standard is no longer applicable to the type of "combination" injury which is the subject of the present claim. For dates of injury on or after December 24, 1 991, § 1(7A) (St. 1991, c. 398, § 14) provides:
So order ________________________ Frederick E. Levine Administrative Law Judge
________________________ Sara Holmes Wilson Administrative Law Judge
FILED: July 16, 1998
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.