Opinion
BOARD No. 00644593
Filed: November 12, 1996
REVIEWING BOARD DECISION
(Judges Maze-Rothstein, McCarthy and Smith)
APPEARANCES
Lori J. Harling, Esq., for the employee.
Brenda L. Bowen, Esq., for the insurer.
The insurer's appeal from a decision that left the employee's G.L.c. 152, § 34 temporary total incapacity benefits intact raises two issues for review. First, it argues that combining the industrial condition and an after occurring unrelated condition to reach an incapacity determination was error. We agree. For that reason the case is appropriate for recommittal. The second issue is of first impression. The insurer argues it is an error of law to consider certain aspects of the opinion of employee's vocational expert, because that opinion usurps the exclusive province of G.L.c. 152, § 11A medical experts to provide medical evidence. We disagree and affirm the judge's use of expert vocational testimony.
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 that additional medical testimony is required due to the complexity of the medical issues involved or the inadequacy of the report. O'Brien v. Blue Cross/Blue Shield, 9 Mass. Workers' Comp. Rep. 16 (1995), appeal docketed, No. 0758 (SJC October 30, 1995).
In his custodial work for the town, the employee meant only to clear a school walkway for students following a snow storm, but wet snow and frozen sand clumps made the going rough. (Dec. 5, 6; Tr. 13.) At one point the plow hit a snow bank and Mr. Simoes injured his left shoulder. Id. The insurer accepted the claim. (Dec. 3, 5.) The employee was 65 years old when injured and had done heavy labor throughout his career. (Dec. 5.)
This case began with the insurer's complaint to modify benefits. A denial was issued on October 24, 1994, after a § 10A conference. The insurer appealed to a hearing de novo. (Dec. 2.)
At hearing, the judge credited the employee's testimony of continued left shoulder pain and of his inability to perform household chores. (Dec. 8.)
Medical testimony was given by the § 11A examiner, Richard Greenberg, M.D. (Dec. 8.) The doctor examined the employee on January 11, 1995. (Dec. 7-8.) He stated that though the employee suffered from rotator cuff tears in both shoulders, only the left shoulder related causally to the industrial accident. (Greenberg Dep. 7.) In his opinion, the left shoulder condition prohibited a return to custodial work, but he thought the employee had a physical capacity to perform sedentary work if he lifted no more than ten pounds. (Dec. 7; Greenberg Dep. 14.) This opinion was adopted.
On the vocational side of the incapacity quotient, the judge found probative the report and deposition opinion of the employee's vocational expert, Paul Blatchford, Ed. M. (Dec. 8.) It was expert Blatchford's opinion that the employee lacked transferrable skills to successfully move to sedentary work. Moreover, when the expert administered various vocational tests, the employee's performance measurements in reading, spelling and arithmetic were relatively low. He also displayed a lack of manual dexterity upon testing. (Dec. 8; Employee's Exhibit 2, 5.)
Mr. Blatchford commented throughout his testimony on the employee's function in both shoulders. However, the expert noted that when considering the employee's intellectual limits and limited heavy labor work history, the impairment of the left upper extremity alone, exclusive of that on the right, would preclude the employee from performing even sedentary occupations. (Employee's Exhibit 2, 10.)
Combining the lay, medical and vocational evidence, the judge concluded that based upon the employee's age, prior experience only as a laborer, and his inability to use "either" shoulder without impediment, he was totally and temporarily incapacitated. (Dec. 10.) The insurer's complaint was denied and § 34 benefits were continued. (Dec. 11.)
In its first charge of error the insurer contends the award of benefits could not legally hinge on the impairment in both shoulders. We agree. It is undisputed that the right shoulder impairment developed after and was not related to the industrial accident. (Dec. 6.) Yet the general findings looked to the employee's impeded use of "either" shoulder in assessing entitlement to total incapacity benefits. (Dec. 10.)
As we have recently reemphasized, where a work injury isfollowed by a disease process unrelated to employment — as distinguished from unrelated pre-existing conditions that combine with a work injury — the determination is limited to incapacity caused not by the blend of the work injury and the after occurring malaise, but by the work related condition alone. See Patient v. Harrington Richardson, 9 Mass. Workers' Comp. Rep. 679, 682-683 (1995). Compare the treatment of pre-existing conditions under the Act. G.L.c. 152, § 1 (7A); Robles v. Riverside Mgmt., Inc., 10 Mass. Workers' Comp. Rep. ___ (March 13, 1996). In cases where medical conditions emerge after an industrial injury, judges must look "with something akin to tunnel vision and . . . narrowly focus on and determine the extent of . . . harm . . . that is causally related solely to the work injury." Patient, supra at 683. Thus, incapacity due to the completely unrelated right shoulder condition cannot be considered in determining whether the condition of his work injured left shoulder has rendered him totally disabled. See Hummer's Case, 317 Mass. 617, 623 (1945); See also Locke, Workmen's Compensation § 308, (2d ed. 1981). Consideration of both shoulders was an error of law. We therefore recommit the case for clarification of the conclusions on the effects of the left shoulder work injury without reference to the after-acquired and unrelated right shoulder condition.
Fixing on the dexterity test the vocational expert had the employee perform, the insurer next questions whether a vocational expert can render opinions that are medical in nature given the exclusivity of § 11A in that domain. After all, it asserts, the § 11A examiner opined that the employee's left upper extremity impairment left him with a sedentary work capacity.
Scheffler's Case 419 Mass. 251 (1994) put the § 11A opinion in perspective and defined its limits. Scheffler's Case, supra at 256-257. In discussing the permissible assignment of very little weight to the § 11A doctor's opinion that Mr. Scheffler could return to his former work, the court noted with approval the reviewing board's conclusion that that aspect of the doctor's opinion was not to be considered expert. Id. at 260-261 n. 6. The conclusion as stated by the reviewing board was:
. . . an impartial physician's report constitutes prima facie evidence only as to the issues of medical disability and related medical matters. As to any other aspect of a report, including opinions on an employee's ability to perform a specific job the administrative judge must . . . accord appropriate weight to the evidence on the basis of its probative value.
Scheffler v. Sentry Insurance, 7 Mass. Workers' Comp. Reps. 219, 222 (1993). (Italics in original, further emphasis added). For example, a § 11A doctor's medical opinion that an employee has a fifty percent loss of function in the spine would be afforded prima facie weight, whereas that same doctor's vocational opinion that the employee has a sedentary work capacity for clerical work exceeds his medical expertise and is ordinary evidence. This is because a clerical work ability entails an entire array of non-medical considerations beyond an individual's physiological or medical status. Thus, wherever a § 11A opinion steps into the vocational realm and goes beyond a description of the employee's medically based physical limitations that portion of his opinion is of no special legal significance. Scheffler supra at 277 (nonmedical matters can be relied on in proportion to their probative value but can not constitute prima facie evidence).
We are now asked to comment on the flip side — the limits of vocational expertise. Or more specifically, have they been exceeded here. We think not. While we generally agree that a vocational expert may not render medical opinions on causation and medical impairment, this did not happen here. The vocational expert stayed within his field to arrive at a vocational, not a medical opinion. His opinion was based on his interview with the employee, his own personal observations and his analysis of the employee's performance in various intelligence, aptitude and dexterity tests certified by the American Board of Vocational Experts. (Employee's Exhibit 2, 5.)
There is no conflict between the two opinions. Both the § 11A doctor, albeit with medical precision, and the vocational specialist agreed the employee had limited movement in his left shoulder. As for lifting restrictions, there is no indication that the judge relied on the vocational specialist's view of what the employee could lift over that of the § 11A opinion, which was adopted "in total". (Dec. 8.) Finally, the doctor had no opinion on the employee's dexterity, so there was no conflict there either.
As stated above, the judge credited the employee's complaints of pain and self professed limitations (Dec. 8) and apparently used that evidence in arriving at his award of weekly benefits.
The intelligence and aptitude tests that the vocational expert administered unmistakably address the issue of the employee's transferrable skills. That issue is not medical in nature. The expert's observations of the employee while he was undergoing the standard dexterity testing were also not medically-based. See (Employee's Exhibit 2.) Without attempting to comment on the molecular, biochemical, causal or medical significance of what he saw, the vocational expert simply observed that the employee "could not stand with extension of his left arm to pick up, hold, grip, grasp and twist and turn objects." Id. This observation speaks to body mechanics not medicine. It is unlikely that the American Board of Vocational Experts would certify dexterity tests for vocational specialists to perform and analyze if one required medical training to administer them and to interpret their outcome. Finally, the dexterity test neither usurped nor overlapped with the weight of the medical opinion since the § 11A physician administered no corresponding medical tests. At most it supplemented the § 11A impairment and causation opinion based on only shoulder tests, with nonmedical observations of what the employee could perform with his hands. Compare (Statutory Ex. 1. Greenberg Dep. 9-11) with (Blatchford Dep. 19, 24-25.)
The dissenting portion of the concurrence suggests that as regards the dexterity test the expert changed his opinion about which was the employee's dominant arm. His opinion remained the same both before and after the deposition. He pointed out only that a typographical error appeared in his report in this regard. (Blatchford Dep. 18-19.) Moreover, on the next two deposition transcript pages immediately after that relied on by the concurrence, the vocational expert clarified that he both tested and observed the employee's lack of dexterity of the left industrially injured hand. (Blatchford Dep. 24-25.) And as stated above, it was expert Blatchford's opinion that the left side alone foreclosed the employee's sedentary job possibilities given his vocational background. (Employee ex 2, 10. Blatchford Dep. 32, 34.)
The expert used his observation of "difficulty in utilization of his left non-dominant arm and hand in any bimanual activity," and in sitting and bending forward, along with the reports of pain in many activities, to form part of his composite vocational opinion that the totality of the employee's deficits would preclude him from "performing and more importantly sustaining, sedentary entry level unskilled occupations." (Employee's Exhibit 2, 9.) It was the judge's prerogative to credit the vocational expert's opinion on a multifaceted analysis of work capacity over that of the § 11A doctor's solely medical opinion of a physical capacity to work, because the "determination of loss of earning capacity involves more than a medical evaluation of the employee's physical impairment". Scheffler, supra at 256. Impairment combines two elements: physical harm to the body, the medical element, with the employee's vocational strengths and weaknesses in the context of other economic concerns. Id. The § 11A opinion addressed the former, while the vocational opinion assessed the latter, thereby supplementing the medical view, with the vocational perspective.
The concurrence suggests that the entire vocational opinion should have been excluded because it relies in part on medical records that could not be admitted under § 11A. The issue of whether medical records can be used for non-medical purposes in a case that involves § 11A has yet to be decided. It seems reasonable that a vocational expert would need medical information to perform a work-up of an employee. There is no statutory requirement that a vocational expert be provided with the § 11A report, which may or may not even exist when a work-up is being performed. Thus, the vocational expert would have to get medical background information from somewhere. The concurrence's formulation would effectively eliminate vocational opinions from workers' compensation cases defeating the combined medical and vocational design of the Act. Section 11A was enacted to address the issue of opposing medical experts, we do not think it was meant to eliminate all vocational expertise as well.
As the courts have made clear, prima facie evidence maintains its artificial legal force only to a certain point. Cook v. Farm Serv. Stores, Inc., 301 Mass. 564 (1938); Anderson's Case, 373 Mass. 813, 817 (1977). See Mendez v. The Foxboro Co., 9 Mass. Worker's Comp. Rep. 641, 645-646 (1995). For purposes of § 11A the assigned weight ends either where it is overcome by other evidence or where the doctor's medical opinion ends and his non-medical opinion begins. In the case at bar, the judge gave the medical portion of the § 11A opinion the artificial legal force which it is due. When the doctor opined that the employee could do "clerical . . . work" he ventured into the employee's vocational capacity, at that point his opinion became ordinary evidence with no special legal weight. (Statutory Ex. 1.) SeeScheffler's Case, supra at 260-261 n. 6. Vocational experts' opinions are evidence for judges to weigh in assessing how § 11A based medical disability impacts on the earning capacity of different individuals. Scheffler's Case, supra at 256. Indeed, the court in Scheffler instructed:
After giving proper weight to the prima facie and other evidence, the administrative judge would then find the facts and apply appropriate legal standards to determine whether the employee has suffered a loss of earning capacity.
Id. at 257, (Emphasis added).
There was nothing contrary to law in allowing the "other evidence" to supplement the prima facie status of the medical conclusions concerning the employee's condition; it simply provided more for the judge to use in conducting a Scheffler analysis to determine what effect the work injury had on this employee's chances of gainful employment.
We therefore affirm the judge's reliance on the vocational expert testimony. We recommit the case for further findings on what the left shoulder impairment alone does to the employee's ability to earn.
Because the employee prevailed on the issue regarding the vocational expert's testimony, we award an attorney's fee pursuant to G.L.c 152, § 13A(6) in the amount of $1,000.00.
So ordered.
________________________ Administrative Law Judge Susan Maze-Rothstein
________________________ Administrative Law Judge William McCarthy
Filed: November 12, 1996
The insurer appeals from the denial of its discontinuance request and raises three issues on appeal. I agree with the majority that the judge erred in considering the impact of the employee's non-work-related medical problems in assessing the extent of incapacity. Although we part company on the second issue, it is likely that the first issue will be dispositive on remand because the employee's non-work-related medical problems with his dominant arm are inextricably woven into the vocational expert's opinion. The majority neglects the third issue which governs the approach to the vocational issue. Therefore I will commence my analysis by discussing the prima facie effect of the impartial medical opinion of work limitations.
The three issues are listed in the insurer's brief as follows:
1. Whether a condition found by the administrative judge to have arisen after the industrial injury and to be unrelated to the employee's industrial injury may form the basis for an award of continuing benefits under G.L.c. 152 section 34?
2. Whether the admission of a vocational witness' test results and opinions concerning an employee's manual dexterity, and physical capacity violates the statutory mandate that the impartial physician, pursuant to G.L.c. 152 section 11A(2), determine the employee's physical capacity?
3. Was administrative judge required to accord prima facie weight to the impartial examiner's opinion that the employee was able to return to work full time in a sedentary desk job where the insurer established that such positions were available within the employee's geographic area?
Under the statutory scheme of the 1991 amendments to the workers' compensation act, the § 11A impartial medical examiner acts in a manner akin to a traditional master, rather than as an expert witness. See Scheffler's Case. fn. 6, 419 Mass. 251, 261, 643 N.E.2d 1023, 1028 (1994) ("The board also considered whether the doctor's opinion should be considered as the opinion of an expert witness, concluding that it should not. We agree with that conclusion"). "The so-called 'impartial provisions' are designed to obviate the need in every case for reliance on the testimony of "dueling doctors." Scheffler v. Sentry Insurance, 7 Mass. Workers' Comp. Rep. 219, 224 (1993). The impartial medical examiner's report thus is the prism through which all medical information is shown to the trier of fact.
The impartial medical examiner has statutory authority to gather medical information, and to render an opinion relying upon it. His opinion constitutes "prima facie evidence" of "(i) whether or not a disability exists, (ii) whether or not any such disability is total or partial and permanent or temporary in nature, and . . . what permanent impairments or losses of function have been discovered, if any." G.L.c. 152, § 11A(2). All other means of admission of medical evidence are prohibited, unless the judge specifically allows additional medical evidence, which is not the case here. Id.
Section 11A(2) instructs the employee to provide the impartial medical examiner with "all relevant medical records, medical reports, medical histories, and any other relevant information requested." The failure to do so "without good reason, shall constitute sufficient cause for suspension of benefits pursuant to section forty-five." G.L.c. 152, § 11A(2).
Section 11A(2) provides in pertinent part:
Notwithstanding any general or special law to the contrary, no additional medical reports or depositions of any physicians shall be allowed by right to any party; provided, however, that the administrative judge may, on his own initiative or upon a motion by a party, authorize the submission of additional medical testimony when such judge finds that said testimony is required due to the complexity of the medical issues involved or the inadequacy of the report submitted by the impartial medical examiner. St. 1991, c. 398, § 30.
The impartial medical examiner's job is to describe the physical handicaps which the injury has caused. G.L.c. 152, § 11A(2); see 452 CMR 4.02, definition of "functional limitations"; Scheffler's Case, 419 Mass. at 256-257, 643 N.E.2d at 1026-1027. In common parlance, the impartial medical examiner sets the work limitations. "[T]he impartial medical examiner . . . describe[s] the employee's ability to perform certain tasks and . . . state[s] restrictions on the employee's ability to work."Id., 419 Mass. at 257, 642 N.E.2d at 1027 (1994). The job of the vocational counsellor is to take the restrictions given and help the employee to find suitable work. See G.L.c. 152, § 30G. A vocational rehabilitation counsellor is not a medical expert and lacks the qualifications to render an expert opinion on functional limitations.
In the context of litigation where the impartial medical examiner's report is the sole medical evidence allowed, see G.L.c. 152, § 11A(2), then the impartial medical report is the proper medical foundation for a vocational opinion. There is no danger of eliminating vocational opinions from workers' compensation cases. The only restriction is that vocational opinions cannot be used as a backdoor means of evading § 11A(2)'s strictures on the admission of dueling medical opinions. Vocational opinions must be based upon evidence which can be properly placed before the judge, just as any other expert opinion.
A vocational opinion which is based on an improper foundation may be excluded. The opinion may not be based upon hearsay unless the hearsay is independently admissible. Liacos, Handbook of Massachusetts Evidence, § 7.10.2 (6th Ed., 1994). Here the vocational opinion was based upon medical records specifically made inadmissible by G.L.c. 152, § 11A(2). The insurer objected to its admission specifically on that basis. (Blatchford Dep. 7.) The judge erred in overruling the objection and admitting the vocational expert's report. (Dec. 4; Blatchford Dep. Ex. 2.) SeeFlaherty v. Browning-Ferris Ind., Inc., 9 Mass. Workers' Comp. Rep. 630, 632 ("An administrative judge has no power to admit evidence at a hearing in a manner contrary to the department's rules"). The error was harmful as judge relied on that evidence to decide the extent of incapacity, the central issue in dispute. See Whalen v. Resource Management, 9 Mass. Workers' Comp. Rep. 689, 691 (1995).
Furthermore, the judge improperly overruled objections to the results of the Crawford Small Parts Manual Dexterity Test. (Blatchford Dep. 23-24.) The left arm was the one injured on the job. The testing was done on the right arm. (Dep. 24.) The majority has correctly ruled in the first issue on appeal, that right arm limitations may not be used in assessing the extent of incapacity. Therefore, any limitations in right arm and hand manual dexterity are irrelevant. The objection on the basis of relevancy was erroneously overruled. (Dec. 4.)
The judge also erred in admitting the test results for the left arm. For an expert opinion to be admissible, it must be "have a reliable basis in the knowledge and experience of his discipline." Daubert v. Merrell Dow Pharmaceuticals, Inc., 113 S. Ct. 2786, 2796.
The overarching issue is "the scientific validity — and thus the evidentiary relevance and reliability — of the principles that underlie a proposed submission." Id. at ___, 113 S. Ct. at 2797. The . . . judge has a significant function to carry out in deciding on the admissibility of a scientific expert's opinion. If the process or theory underlying a scientific expert's opinion lacks reliability, that opinion should not reach the trier of fact. Consequently, the judge must rule first on any challenge to the validity of any process or theory underlying a proffered opinion. "This entails a preliminary assessment of whether the reasoning or methodology underlying the testimony is scientifically valid and of whether that reasoning or methodology properly can be applied to the facts in issue." Id. at ___, 113 S. Ct. at 2796. The judge thus has a gatekeeper role.
Commonwealth v. Lanigan, 419 Mass. 15, 26, 641 N.E.2d 1342, 1349.
Here, the vocational expert specified that the test was designed to measure manual dexterity of the dominant arm. (Blatchford Dep. 23.) Blatchford had reported that Simoes was left hand dominant. (Blatchford Dep. Ex. 5.) In fact, as Blatchford testified at his deposition, Simoes was right-handed. (Blatchford Dep. 18.) The judge failed to keep the gate of scientific validity closed when he admitted the test results for the non-dominant arm. Using the improperly admitted evidence to conclude that the employee lacked dexterity of his non-dominant hand was arbitrary and capricious, and contrary to law, in light of the expert's opinion that the test was not designed for that purpose. The judge explicitly relied on the employee's lack of manual dexterity upon testing in awarding benefits and thus the evidentiary error was prejudicial. (Dec. 8.) See Whalen, supra.
For these reasons, I join in the majority vote to recommit the case for further findings of fact. It is my opinion that, in light of the passage of time during the pendency of the appeal, if either party alleges a change in medical condition or vocational skills since the date the record closed or the judge finds that justice so requires, the judge should take additional evidence prior to the entry of the remand decision.
So ordered.
________________________ Suzanne E.K. Smith Administrative Law Judge
Filed: November 12, 1996