Opinion
BOARD No. 06094793
Filed: February 26, 1998
REVIEWING BOARD DECISION
(Judges Maze-Rothstein, McCarthy and Smith).
APPEARANCES
G. Gregory Howard, Esq., for the employee.
Mark Teehan, Esq., for the insurer.
The employee appeals from a decision which dismissed both his claim for § 30 medical benefits for three surgeries to his hands and wrists, and for § 34 weekly incapacity benefits for closed periods of recovery from those surgeries. The employee argues that the judge erroneously applied the § 1(7A) standard of causation — that a work injury, when combined with a non-work-related pre-existing medical condition, must "remain a major but not necessarily predominant cause of disability or need for treatment." We agree that any application of that standard is erroneous as to the band release surgery. We reverse the decision in part and recommit the case for further findings.
In his capacity as a bus driver and collector for the Massachusetts Bay Transportation Authority, the employee sustained a series of industrial injuries to his hands between 1987-1991. He was temporarily incapacitated and received § 34 benefits from June 11, 1987 until July 29, 1987 due to an injury to the left index finger. (Dec. 3.) The employee next suffered a work-related injury to the right index finger on March 15, 1988, for which he received medical treatment and lost three days of work. Id. He again fractured his right index finger while working, and this resulted in temporary total incapacity from December 29, 1989 until March 5, 1990 for which the self-insurer paid § 34 benefits. (Dec. 4.) These incidents all occurred while the employee, worked as a bus driver.
Tayag returned on March 5, 1990 as a token booth collector. Id. He fractured his right index finger while working as a collector on May 25, 1991, and was incapacitated until June 10, 1991. Again the self-insurer paid § 34 benefits. Id.
The employee worked as a token booth collector until he left work January 30, 1993. (Dec. 4.) He did not return to work until March 5, 1993, having undergone surgery for a carpal tunnel condition in his left wrist on February 4, 1993. The employee received "sick pay" for that period of incapacity. Id. In October 1993, he once again left work, to undergo a band release surgery on the fingers of his left hand on October 7, 1993. He remained out until November 19, 1993, when he returned to the collecting job. Id. He did not leave work again until approximately August 25, 1994 when he was scheduled for band release surgery on the fingers of his right hand. (Dec. 4-5.) He returned to work on October 31, 1994. (Dec. 5.) These last three surgeries and the resulting periods of incapacity are the subject of the employee's claim and appeal.
The employee's claim was denied at the § 10A conference held on December 17, 1994. (Dec. 2.) He appealed to a hearing de novo, at which he was the single lay witness and the only medical evidence was provided by the report and deposition of the G.L.c. 152, § 11A physician. (Dec. 1-2.) Although the judge found the doctor's report to be inadequate, and authorized the parties to submit additional medical evidence under § 11A(2), neither party offered any. (Dec. 8-9.) Therefore, the judge decided the medical component of the case on the § 11A physician's report, a supplement to that report, and his deposition testimony.
General Laws c. 152, § 11A gives an impartial medical examiner's report the effect of "prima facie evidence with of the matters contained therein," and expressly prohibits the introduction of other medical evidence to meet it unless the judge finds the additional medical testimony is required due to the complexity of the medical issues involved or the inadequacy of the report.
The doctor's clinical impression in his report was:
Inflammatory Polyarthritis — Suspect Polyarticular Tophaceous Gout. ? History of Rheumatoid Arthritis.
History of Fracture — Left Second Finger. ? Fracture of Left Fifth Finger and Right Second Finger.
History Carpal Tunnel Syndrome.
(Statutory Ex. #1 p. 4; Dec. 5-6.)
The doctor requested further testing in order to clarify his opinion on the interrelationship between the clinical factors involved in the above impression. (Dec. 6.) Upon receipt of various diagnostic test results, he submitted a supplemental report. Id. The doctor opined that the employee's carpal tunnel surgery, although possibly related to the employment in some way, seemed "more likely related to his underlying inflammatory joint disease." (Statutory Ex. #1, Supplement, (dated August 10, 1995), p. 2; (Dec. 7.)
The employee testified that he had treated for arthritis or gout in his right knee and lower extremities as early as 1979. (Tr. 32-33.) However, he testified that he experienced no arthritis in his hands prior to his first work injury in June 1987. (Tr. 6.) He also testified that he always strained his hands working as a collector and described the repetitive motions involved in that work, from the time he started that position in March 1990 and continuing through 1993-1994 period of the surgeries. (Dec. 4; Tr. 11, 23-24.) The employee sought treatment for left wrist complaints about three months prior to his carpal tunnel surgery. (Dec. 9.) However, he did not sustain any specific injuries to his hands during the time period following his return from the March 1993 carpal tunnel surgery until his August 1994 band release surgery. Id.
The judge denied and dismissed the employee's claim based on the medical evidence provided by the § 11A examiner, concluding that the employee had failed to establish a causal relationship between his work and the three claimed surgeries and resultant lost time. (Dec. 10.) The employee appeals to the reviewing board, contending that the decision is contrary to law in that the judge used the wrong legal standard.
The employee's appeal questions whether G.L.c. 152, § 1(7A) was properly applied in this case. That section includes the following pertinent language:
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 predominant cause of disability or need for treatment.
G.L.c. 152, § 1(7A) (added by St, 1991, c. 398, § 14, and made effective, with prospective application only, on December 23, 1991. St. 1991, c. 398, §§ 106, 111.) (Emphasis added). See generally Robles v. Riverside Mgmt., Inc., 10 Mass. Workers' Comp. Rep. 191, 195-197 (1996).
While it is not clear what standard the judge applied, if it was the § 1(7A) heightened standard of causation that is error. The employee's band release surgeries in October 1993 and August 1994 were compensable rather than "not compensable under this chapter." G.L.c. 152, § 1(7A). Therefore the standard to be applied to the band release aspect of the claim was the "as is" simple contribution causation standard.
The judge noted that the § 11A physician was unable to conclusively identify his work activities as "a major but not necessarily predominant cause of either the Employee's carpal tunnel surgery or his band release surgery." (Dec. 8.) But the 1991 § 1(7A) standard language was absent in his general findings where the judge found the employee had failed to "establish a causal relationship between his work and the surgeries. . . ." (Dec. 10.)
While struggling to answer questions framed around the wrong standard, the § 11A physician's testimony is quite clear that events at work at least, to the slightest degree, contributed to the claimed period of incapacity, to wit:
Q: It's possible, but again, more probably [sic] than not, Doctor, within a reasonable degree of medical certainty, you cannot state that those incidents were a major but not necessarily predominant cause of the surgical intervention and his disability?
A: I cannot say major or not, correct.
Q: Okay. And that's an express [sic] that you can express [sic] with a reasonable degree of medical certainty; is that correct?
A: Yes, that they were contributing, I think there was no question. But the major is hard for me —
(Dep. 20-21.) (Emphasis added).
He reiterated this opinion later in his deposition. (Dep. 47.) The he went a step further, providing the 1991 heightened standard to the band surgeries:
A: . . . It seems with the fingers that were closely affected by trauma, that is they were fractured or severely sprained enough to warrant medical attention, that those would be more likely to be a major or even predominant at those sites.. . .
And so I have to stand by what I said before, qualifying it the way that I needed to, that there is a work component, it seems, related to his fingers, possibly more clearly than for his carpal tunnel; but that is there, and so I refer to my report for its attempted clarification of the difficulty in sorting out these issues.
(Dep. 52-53.) (Emphasis added).
The last question in the deposition, posed by the insurer, contained a legal error because it asked the doctor to "quantify what contributing factor" was a major cause of the band release or carpal tunnel surgery. (Dep. 59.) Neither the simple contribution "as is" causation standard nor the 1991 "major" causation standard call for a 'quantification'. The question and the doctor's response that he could not quantify the factors, are thus of no account. Compare Perangelo's Case, 277 Mass. 59 (1931) (doctor's opinion at the last moment of testifying is to be taken as final). Nevertheless, the question is interesting because it seems to concede that there was some contribution.
The § 11A doctor's uncontradicted prima facie opinion was that the band release surgeries were causally related to the employee's work-related finger injuries occurring between June 11, 1987 and May 25, 1991. (Dec. 7.) As to the band surgeries the "as is" simple contribution causation standard should have been applied. The surgical procedures are merely the sequelae of the multiple work induced 1987-1991 fractures and sprains. See Crowley's Case, 223 Mass. 288, 289 (1916). The effect of any non-work-related factors, therefore, would have no legal significance. See Kelly's Case, 394 Mass. 684, 687 (1985) (employer takes the employee "as is" with whatever peculiar vulnerabilities to injury the employee may have). Thus, the employer's liability for the surgeries attached with the § 11A opinion that the pre December 23, 1991 work-related specific injuries contributed to that need for treatment. (Dec. 7; Statutory Ex. #1, Supplement; Lloyd Dept. 20-21, 47.) See Newton v. Merrimac Paper Co., 10 Mass. Workers' Comp. Rep. 499, 501 (1996).
We therefore reverse the denial of workers' compensation benefits for the band release surgeries in October 1993 and August 1994. We recommit for further finding on what c. 152 benefits are due as a result of these work related surgeries.
A more complicated question arises in relation to the judge's denial of benefits for the employee's carpal tunnel surgery and related period of incapacity. We consider that recommittal is appropriate, because further findings are necessary to determine the correct standard of causation in analyzing this aspect of the claim. Moreover, the medical evidence in the record could support a number of outcomes depending on which standard is ultimately applied.
The employee's carpal tunnel condition arose quickly, with his left wrist complaints first noted just three months before the February 1993 release surgery. (Statutory Ex. #1, p. 5; Dec. 9.) The carpal tunnel condition, therefore, would appear at first blush to be susceptible to the inquiry under the amended § 1(7A): whether it was a compensable injury that combined with a pre-existing non-compensable injury or disease (gout), and remained "a major" cause of the need for surgery. The opinion of the § 11A doctor on causation of the carpal tunnel condition, however, raises questions as to the appropriateness of applying § 1(7A) to this part of the claim.
We note that, although the employee claimed the date of injury erroneously as February 4, 1993, the day on which surgery was performed, the claim can easily be amended on recommittal to reflect the appropriate last day of employment, January 30, 1993. (Dec. 2, 4.) See 452 Code Mass. Regs. 1.23.
The doctor opined that the employee's carpal tunnel release seemed "more likely related to his underlying inflammatory joint disease." (Statutory Ex. # 1, Supplement, p. 2.) But the doctor then explained that the pre-existing gout, which was originally localized in the employee's lower extremities, could have moved up to his hands as a result of the work traumas:
It is reported that uric crystals might migrate or be deposited to regions of underlying sites of cartilage and bony damage. Therefore, it is possible that given the affected sites in his hand, as prior sites of involved trauma, that it may be why gout has evolved in these regions.
Id. at 1.
The doctor elaborated at his deposition, that "if there is trauma to a joint, then gout can be superimposed on top of that joint." (Lloyd Dep. 11.) Thus, the doctor connected the gout to the carpal tunnel condition, and opined that the gout may have been superimposed on the sites of the 1987-1991 work trauma to the employee's hands.
The medical evidence therefore raises the crucial question of whether the carpal tunnel condition, just as the band release surgery, was a direct result of the 1987-1991 work trauma, rather than a new injury subject to the § 1(7A) standard of causation. Since his industrial injuries in 1987-1991 were under the "as is" simple contribution rule of causation, see supra. So too would the migration of gout to the employee's hands be viewed as part of that industrially-based medical condition. If the gout moved to the employee's hands due to work traumas, and the carpal tunnel condition arose secondary to that gout, then the carpal condition would be a sequelae of those 1987-1991 work injuries. SeeCirignano v. Globe Nickel Plating, 11 Mass. Workers' Comp. Rep. 17, 23-24 (1997) (in identifying links in causal chain, a "but for" analysis is used). It is therefore quite possible the carpal tunnel surgery should not have been subjected to the § 1(7A) "a major" cause analysis. The judge on recommittal must reassess the medical evidence, make specific findings on this aspect of the employee's claim, and reach conclusions based on that evidence.
Further, if the judge on recommittal finds that the constant use of his hands at work was an aspect of work-relatedness in the employee's carpal tunnel claim, the claim would still not be governed by the § 1(7A) "major" cause analysis. If he credits the medical evidence of causal connection between the gout and the work traumas, the gout becomes part of the employee's industrially-based medical condition. That condition is therefore, a compensable pre-existing condition, out side of the reach of § 1(7A). SeeDefeo v. Mobile Oil Corp., 11 Mass. Workers' Comp. Rep. 199, 201 (1997) (§ 1(7A) amendment has no impact on continued viability of "as is" doctrine where post-1991 injury combines with pre-existing condition caused by a compensable injury).
Accordingly, while we can affirm the finding that no work injury occurred on February 3, 1993 as that was a surgical date, we cannot be certain that the decision denying benefits for the 1993 carpal tunnel release surgery and resulting incapacity was untainted be error of law as to the standard of causation to be applied. Because the record evidence on the carpal condition neither mandates nor prohibits any number of outcomes depending on which standard is applied, we recommit this aspect of the case for further findings consistent with this opinion. See G.L.c. 152, § 11C; Praetz v. Factory Mut. Eng'g Research, 7 Mass. Workers' Comp. Rep. 45, 47 (1993).
So ordered.
_____________________ Susan Maze-Rothstein Administrative Law Judge
_____________________ William A. McCarthy Administrative Law Judge
FILED: February 26, 1998
APPENDIX
The impartial physician diagnosed an old work related fracture of the left second finger with an old questionable fracture of the left fifth finger and the right second finger. He opined that:
some of the episodic swelling reported in the digits may, in fact, be related to trauma or to an acute synovitis of his fingers, the differentiation of which is not completely clear based on review of the records available. . . . the acute episodes of swelling can be questioned as to possibly being a manifestation of an underlying arthritis.
(Statutory Ex. 1, pp. 4-5.) After further testing confirming a diagnosis of polyarticular or topaceous gout he opined:
It is reported that uric acid crystals might migrate or be deposited to regions of underlying sites of cartilage and bony damage. Therefore, it is possible that given the affected sites in his hand, as prior sites of involved trauma, that it may be why gout has evolved in these regions. . . [t]he band release procedures in October of 1993 and August of 1994, seem to be related to prior deformities, though again the orthopedic issues necessitating their timing are not immediately appreciated. However, it does appear to me based on the information available, it is possible that given that these fingers are sites of prior trauma attributed to work related injuries and further complicated but either scarring or inflammatory disease, that it is not possible to fully separate out these cofactors at this time. Therefore, his injuries may be considered a contributing factor to the ultimate need to undergo this procedure. . . inflammatory arthritis could lead to digital deformities on their own, requiring reconstructive hand surgery.
(Statutory Ex. 1, Supplement, pp. 1-2.) (emphasis supplied) At deposition, the doctor opined that McGhee suffers from polyarticular gouty arthritis which was not caused by work. (Dep. 10-11.) He testified as set forth above that he could not separate out the factors of gout and trauma. (Dep. 13.) The doctor found it " hard to answer" the causation questions. (Dep. 14-15.) (emphasis supplied) He opined that "[I]t's possible that [the fractures were] the underlying reason for deformity there. And thereafter, gouty crystals might have deposited in those joints." (Dep. 20.) (emphasis supplied) "[T]hat they were contributing, I think there was no question." (Dep. 21.) When counsel pointed out that the employee had uric acid deposits in other body locations, the doctor conceded that would make it even more difficult to determine what, if any, causal connection to the fractures existed: "it would make it difficult, but accepted as a possible factor."(Dep. 24.-25.) The doctor believed that trauma could be considered in a certain light to be a contributing factor to his joint complaints." (Dep. 26.) The doctor "could not separate out to what percentage of his complaints is related to the trauma versus his underlying arthritis." (Dep. 27.) The medical records of the band surgeries were not as clear to the doctor as the carpal tunnel records:
[w]hat those joints looked like after trauma, after a period of time, a year or two or three, would have allowed one to make a more comfortable assessment of his need for those band releases. I've had some difficult (sic) in consolidating all the records to the best of my ability to appreciate what his fingers really looked like after the trauma prior to the need for these releases. . . I can't separate out the inflammatory component to the work component, other than maybe in this situation weighing the work component a little bit more in the joints with obvious trauma.
(Dep. 46-47, emphasis supplied.)
The doctor did opine that, to a reasonable degree of medical certainty, work trauma was a major cause of the band surgeries. (Dep. 48.) However, when asked to assume that other fingers than those fractured also required the band surgery, he opined that the fractures "could have resulted in the need for a band release. That, by itself, would be considered an orthopedic issue." (Dep. 52.) (emphasis supplied) He nevertheless stood by his earlier testimony "that there is a work component, it seems, related to his fingers. . . it is there. . ." Id. (emphasis supplied) "It would be uncommon for gouty arthritis to require band release by itself. In fact, it's uncommon in an otherwise well-managed patient, to have this degree of gouty arthritis in his hands; though, certainly, one can see patients like that." (Dep. 53.) He agreed "it's possible that work contributed to his need for surgery, yes."(Dep. 54.) (emphasis supplied) When pressed on whether it was probable, he referred back to his report and said that was the best opinion he could give. (Dep. 54.) He " suggested" that "there [was] a work-related component to this gentleman's difficulty." (Dep. 56.) (emphasis supplied) In his opinion, "the procedures directed towards his fingers had a more likely work component to them." (Dep. 58.) (emphasis supplied) It was a " more likely possibility." (Dep. 58.) (emphasis supplied.)
The judge did not apply § 1(7A) in denying this claim, but instead applied the correct legal standard. In his specific findings he accurately quoted the medical testimony. In his general findings, he concluded: "the Employee has failed to meet his burden to establish a causal relationship between his work and the surgeries and resultant lost time from work that are the subject of this claim." (Dec. 10, emphasis supplied.) The record contains a rational basis for the judge to be unpersuaded of a causal link between the employee's prior work injuries or his current work activity, and the physical problems causing the current periods of incapacity. See DeCicco v. Hapwood Globe Retinning Corp., 11 Mass. Workers' Comp. Rep. 376, 378 (1997) (describing the proper standard for our review). Therefore the denial is not arbitrary or capricious, properly follows the law, and should be affirmed, G.L.c. 152, § 11C,
That the questions and answers focused on the inappropriate legal standard of "major cause" may indicate that counsel misunderstood the law but does not show that the judge did.
The burden was on the claimant to prove that there was a probable causal connection. The only evidence on which a finding of causal relationship could rest is the testimony of the impartial medical examiner, Dr. William Lloyd. The judge weighed his testimony and concluded that it did not establish causation.
"[I]f the relationship was no more than a possibility the claimant's case must fail. Ruschetti's Case, 299 Mass. 426, 431.Josi's Case, 324 Mass. 415. Mass v. Duxbury, 327 Mass. 396, 401.Sevigny's Case, 337 Mass. 747, 751. 'A mere guess or conjecture by an expert witness in the form of a conclusion from basic facts that do not tend toward that conclusion any more than towards a contrary one, has . . . no evidential value.' Ruschetti's Case, supra, at 431." Oberlander's Case, 348 Mass. 1, 5-6 (1964). With these principles in mind, I proceed to an analysis of Dr. Lloyd's testimony.
The impartial opinion in this case is filled with ambiguity and self-contradiction. The judge found as a fact that the impartial physician was, despite "almost heroic attempts[,]" unable to clarify his opinion on causal relationship. (Dec. 8.) The judge found the report inadequate on causation. Id.
It was incumbent on the employee, who bore the burden of proof, see Tartas' Case, 328 Mass. 585, 586-7 (1952), to cure the deficiency in the impartial medical opinion. Although given the opportunity, he failed to present any additional medical evidence on causation. His failure left the judge with an impartial opinion that did not make causation appear more likely or probable in the sense that actual belief in its truth, derived from the evidence, did not exist in the judge's mind. See King's Case, 352 Mass. 488, 49-4922 (1967), quoting Sargent v. Massachusetts Acc. Co., 307 Mass. 246, 250 (1940). His judgement is well grounded in the record evidence.
Tayag claimed three periods of benefits, involving two types of medical treatments. The first claimed period was for left carpal tunnel surgery. The impartial physician originally opined:
[t]he intraoperative review, was noted to have evidence of uric acid deposition in the tenosynovium and evidence of active toph of the left second finger, raising the question of an inflammatory basis to his symptoms and not just related to mechanical factors.
(Statutory Ex. 1, p. 5.) after further testing, the doctor reported:
Based on the information available it is not possible for me to state that this in some way is not related to his employment and seems more likely related to is underlying inflammatory joint disease.
(Statutory Ex. 1, Supplement, p. 2.)
The doctor's inability to say the carpal tunnel syndrome was not work related did not constitute positive evidence of causation. The doctor agreed that he could not say within a reasonable degree of medical certainty that the carpal tunnel syndrome was related to employment. (Dep. 18, 21.) As a matter of law, his medical testimony is too conjectural and speculative to support a rational conclusion that work was a direct cause of the employee's carpal tunnel syndrome. McEwen's Case, 2 Mass. App. Ct. 63, 66-67 (1974), and cases cited therein; Buck's Case, 342 Mass. 766, 771 (1961). The record will only support the result the judge reached, so there is no rational reason to remand for further findings on carpal tunnel. Medeiros v. San Toro Mfg., 7 Mass. Workers' Comp. Rep. 66, 68 (1993) and cases cited therein.
Indeed, the following highlighted testimony makes that clear:
"Now, whether or not this was because of gout alone or whether or not there was an aggravated or underlying work component, I cannot separate at this particular point in time. (Dep. 16, see also 47) . . . . could be . . . . I don't feel that it's a yes or no (Dep. 17) . . . . one can suggest the possibility of a work component upon and is accepted as a possibility, as a co-factor (Dep. 40) . . . . his work activities may have contributed (Dep. 42.) [i]n this particular case, since there is a significant inflammatory component, it disturbed any possibility of identifying the mechanical component, other than the history that it could have been. And so I'm willing to accept the history that it could have been but need to recognize that gout was a major focus at the time of the operation (Dep. 43) . . . . it's hard to know exactly all of what was going on at that particular point in time (Dep. 45) . . . . It's my opinion that they were co-factors. I cannot weigh them any better than I have. (Dep. 54.) (emphasis supplied)
The next two periods of incapacity were for band releases on work-injured hands. The impartial medical examiner gave inconsistent opinions about these surgeries, depending on which party asked the causation question and how it was phrased. SeeBuck's Case, 342 at 771 and cases cited (where inconsistent testimony, judge could believe those portions he found credible);Perangelo's Case, 277 Mass. 59, 64 (1931) (the fact that an opinion has changed may diminish the credit given to the final opinion). When the evidence from the impartial medical examiner on the band releases, see Appendix, is viewed in full context, it is apparent that the doctor would go no further than to say it was possible, or perhaps probable, that the band release surgeries were related to the work trauma. The question was left in an atmosphere of uncertainty and doubt. See Falco's Case, 260 Mass. 74, 77 (1927); Sevigny's Case, 337 Mass. 747, 749-50 (1958). The judge pointed out this deficiency to the employee, but the employee did not remedy it.
Causation is a question of fact for the administrative judge to decide. On this record a judge might have found causation, but the impartial physician's testimony was to ambiguous and conflicting to compel that conclusion. See Mullen v. Contributory Retirement Appeal Bd., 343 Mass. 641, 644 (1962) (vague and somewhat conclusional testimony does not compel a causation finding). The judge's factual determination that a causal connection had not established was rationally grounded in the evidence. We are therefore required to accept it. Reis v. Anchor Motor Freight, 9 Mass. Workers' Comp. Rep. 82, 85 (1995).
For these reasons, I would affirm the decision.
__________________ Suzanne E.K. Smith Administrative Law Judge