Opinion
BOARD Nos. 011272-96, 292900-72
Filed: May 27, 1998
REVIEWING BOARD DECISION
(Judges Fischel, Levine and Wilson).
APPEARANCES
Edward J. Spence, III, Esq., for the employee.
Lewis G. Evangelidis, Esq., and Daniel Napolitano, Esq., for Wausau Insurance Co.
Laura E. Iannetta, Esq., for Fireman's Fund Insurance Company at hearing.
Gerard A. Butler, Esq., for Fireman's Fund Insurance Company on review.
The employee appeals for a second time a decision in which an administrative judge denied his claim for incapacity benefits commencing July 2, 1989. See Squires v. Beloit Corp., 9 Mass. Workers' Comp. Rep. 260 (1995). Because the judge both mischaracterized the undisputed medical evidence and misapplied the law regarding intervening causes, we reverse the decision in part. We recommit the case again for further findings.
The employee suffered an industrial accident to his neck, right arm and shoulder on November 17, 1972. (Dec. 3-4.) The insurer accepted the claim and paid compensation benefits, including medical benefits for a laminectomy at C5-6 on March 25, 1973. (Dec. 4.) The employee returned to light duty work on September 1, 1973, but still experienced neck pain and frequent paraesthesia in his right hand. (Dec. 4.) Wausau Insurance Companies insured the employer at the time of the 1972 injury. (Dec. 1, 5.)
During the course of his continued employment with the employer, the employee experienced two more incidents. The first was when the employee slipped on a plastic bag on October 28, 1974, which caused him to snap his neck suddenly. Following this incident, the employee sought medical treatment, but lost no time from work. Next the employee hit his head on September 11, 1975. The employee lost one day from work, experienced muscle spasms and increased pain on the right side of his neck and his right shoulder. Again the employee sought medical treatment. Fireman's Fund Insurance Company was the workers' compensation carrier on the risk at the time of these two work incidents. (Dec. 5.)
On January 26, 1976, the employee was involved in a rear end collision, which accident was not work-related. As a result of the hyperextension injury (whiplash) that the employee sustained, he missed nine days of work in January and again in March 1976 and underwent medical treatment. (Dec. 6.) The employee left Beloit Corporation in the fall of 1976, and worked in other jobs. (Dec. 7.)
The employee had no further medical treatment until July 27, 1989, when he started seeing Dr. John Bouillon for complaints of pain in his cervical spine and paraesthesia in his right hand. (Dec. 8.) Dr. Bouillon's expert medical opinion at hearing was that the employee had a very limited work capacity, and his disability was causally related to the 1972 work injury with a series of aggravating incidents in 1974-1976. (Dec. 9-12.) Dr. Robert F. Norwood provided expert medical testimony for the Wausau Insurance Companies at hearing. (Dec. 12.) Dr. Norwood opined that the employee was partially disabled, which disability most likely was causally related to the 1972 industrial injury, with three aggravations in 1974-1976. (Dec. 14.)
The judge concluded that the employee failed to establish a causal nexus between his present disability and the original injury of November 17, 1972. The judge found that the two industrial incidents in 1974 and 1975 were only temporary exacerbations of the 1972 injury, that they did not rise to the level of being new injuries, and that they were not components in the employee's present disability. The judge further reasoned that the employee's 1976 automobile accident broke the chain of causal connection between his work-related medical condition and any ongoing disability. (Dec. 17.) The judge therefore denied the employee's claims against both the Wausau and Fireman's Fund Insurance Companies. (Dec. 18.) The employee appeals to the reviewing board for a second time.
In the first visit to the reviewing board, 9 Mass. Workers' Comp. Rep. 260 (1995), we remanded the case for the judge to determine the applicability of the successive insurer rule. The decision on recommittal fails to address this issue adequately. See infra.
The employee argues on appeal that the judge's finding of a break in the causal chain between the 1972 injury and present disability, due to the non-work-related 1976 motor vehicle accident, was arbitrary and capricious. We agree. We reverse the decision as to that finding, because the only evidence in the record supports a finding of causal relation as a matter of law.
The medical testimony of both Drs. Bouillon and Norwood established causal relation between the 1972 injury and present disability. Dr. Bouillon stated at the end of his deposition:
My opinion is that the substantial cause of this patient's long-term disability and chronicity of problems is the 1972 accident where he damaged two cervical discs. . . . [T]hroughout this chronology of events . . . the arm pain and radicular symptoms involving the C5 nerve root were persistent and consistent from the original injury.
(Bouillon Dep. 66.) Dr. Norwood testified as follows:
I think [the employee's] present disability as I say under causation, the above diagnoses most likely [are] causally related to his injury sustained in '72 which led to the posterior excision of the C5-C6 disc and at least three further accidents in '74-75 which aggravated the neck problem from '72.
(Norwood Dep. 24.) The medical evidence was thus undisputed: both parties' expert physicians clearly established causal relationship between the 1972 industrial injury and the employee's present disability. The judge's conclusion that that there was no causal connection between the employee's present disability and his industrial injury of November 17, 1972 contradicts the uncontroverted medical opinion.
The conclusion that the 1976 automobile accident broke "the chain of causal connection between the work related injuries and any ongoing disability[,]" indicates a misapprehension of the law of intervening non-work-related injuries. In a situation such as the present one, the insurer is responsible for the employee's incapacity as it was just prior to the non-work-related rear end collision. The insurer here is not responsible for the additional incapacity caused by the rear end collision, but it is responsible for whatever incapacity the employee had just prior thereto. Thus, for example, if the employee was partially incapacitated just prior to the rear end collision, and the rear end collision caused the employee to be totally incapacitated, the workers' compensation insurer remains responsible for the employee's partial incapacity, but it is not responsible for the employee's total incapacity. The "supervening of a noncompensable injury . . . does not excuse the insurer from paying the compensation which would otherwise be payable for a compensable injury." Roderick's Case, 342 Mass. 330, 334 (1961), quoting Whitehead's Case, 312 Mass. 611, 613 (1942). Roderick's Case, like the present case, involved an employee whose work related back injury was worsened in a non-work-related motor vehicle accident. Contrast the present case from cases in which the triggering event involves no outside agency, but involves employee's conduct. See, e.g., Twomey v. Greater Lawrence Visiting Nurses Assoc., 5 Mass. Workers' Comp. Rep. 156 (1991); Gulczynski v. Granada Hospital Group, 7 Mass. Workers' Comp. Rep. (1993); 1 A. Larson, the Law of Workers' Compensation § 13.11(a) 1996 ("The real operative factor is the progression of the compensable injury, associated with an exertion that in itself would not be unreasonable in the circumstances"). Given the undisputed medical evidence in this case, the judge's severing of the causal chain between the industrially-based medical condition prior to the 1976 automobile accident and any incapacity thereafter is contrary to law. We reverse the judge's conclusion to that effect. We recommit the case for an assessment of the extent of the employee's work-related incapacity for the claimed period of July 2, 1989 and continuing.
Finally, we note inconsistency in the conclusions regarding the nature of the 1974 and 1975 industrial incidents. The judge adopted the opinions of both medical experts, that "the Employee's present disability was caused by the cumulative effect of his injuries from November 17, 1972, October 28, 1974, and September 11, 1975, as well as the automobile accident of January 26, 1976. . . . [T]hese subsequent incidents aggravated the Employee's condition." (Dec. 17.) But the judge then concluded:
[T]he injuries of October 28, 1974 and September 11, 1975, when Fireman's Fund was the insurer, were only temporary exacerbations of an original 1972 compensable injury that do not rise to the level of a new injury, that they eventually resolved themselves and are not components of the Employee's present disability.
(Dec. 17.) There is inconsistency in these conclusions. Did the 1974 and 1975 work incidents contribute to the present incapacity or not? On recommittal, the judge must reconcile these disparate findings, as the proper operation of the successive insurer rule hangs in the balance.
While aggravation of a pre-existing condition to the point of incapacity is a compensable injury, a recurrence of symptoms is not a new industrial accident. [Citations omitted.] Thus, [for example] a disabling work-related increase in symptoms to the point of emergency treatment constitutes an aggravation and a new personal injury under the Act, Long's Case, 337 Mass. 517 (1958), while a temporary exacerbation of an underlying condition does not, Curtin_v. Eastern Billiard Supply, 5 Mass. Workers' Comp. Rep. 223 (1991). . . .
Smick v. South Central Mass. Rehabilitative Resources, Inc., 7 Mass. Workers' Comp. Rep. 84, 87 (1993). "[A] second [industrial] incident is compensable if it is a contributing cause, even to the slightest extent, of the employee's incapacity." Id. at 86, citingRock's Case, 323 Mass. 428 (1948).
The decision is reversed insofar as it denies the employee's claim based on the occurrence of the 1976 non-work-related motor vehicle accident. The case is recommitted for further findings on the application of the successive insurer rule and the extent of incapacity.
So ordered.
_____________________ Carolynn N. Fischel Administrative Law Judge
_____________________ Frederick E. Levine Administrative Law Judge
_____________________ Sara Holmes Wilson Administrative Law Judge
FILED: May 27, 1998