Opinion
BOARD Nos. 03372779, 01128396
Filed: November 23, 1998
REVIEWING BOARD DECISION
(Judges McCarthy, Wilson and Smith)
APPEARANCES
Wayne M. Leblanc, Esq., for the employee.
Leonard Y. Nason, Esq., for Peerless Insurance Co..
Karen A. Loughlin, Esq., for American Policyholders Insurance Co..
In 1977 Robert Thibeault was hired to do maintenance and repairs to about 200 apartment units for his employer, Sure Oil and Chemical Corp (Sure Oil). Thibeault, who has a construction supervisor's license according to his unchallenged testimony, did carpentry, plumbing, electrical work, painting, wallpapering, roofing, laying carpet and flooring. He also cleaned apartments, cut grass and shoveled snow. (Tr. 23, 37.)
On May 10, 1979, Mr. Thibeault tripped while carrying a paint sprayer machine down a flight of stairs. He fell on his left knee. Sure Oil was insured for workers' compensation at that time by Peerless Insurance Company (Peerless). Mr. Thibeault had surgery on the left knee and was out of work until August 1979. Back at work, he had another industrial injury in October 1979. Mr. Thibeault's left knee gave out while carrying a radiator up a flight of stairs and the radiator fell on his left knee. A second surgery was performed. He returned to work in November 1979. Peerless paid weekly incapacity benefits during the periods when Mr. Thibeault was out of work. It also paid all reasonable and related medical expenses for treatment of these two left knee injuries.
Since his return to work in November 1979, Mr. Thibeault has experienced pain, buckling and swelling in his left knee. (Dec. 7.) He has not been able to run nor has he been able to engage in sports. "Mr. Thibeault has not even been able to cross his legs." (Dec. 7.) He has treated his left knee symptoms with over-the-counter medications and with the application of ice. Despite the pain and other symptoms, Mr. Thibeault has continued to work but with some restrictions and with accommodations made by his employer. (Dec. 4, 7.)
Upon referral by his primary care physician in 1994, the employee came under the care of a different orthopedic surgeon; further surgery was performed on Mr. Thibeault's left knee on January 12, 1995. Convalescence from this third surgery kept the employee out of work until February 13, 1995. When the employee left work for this surgery, Peerless was no longer the workers' compensations carrier for Sure Oil. American Policyholders (American) was the carrier in January 1995.
Mr. Thibeault brought a claim against Peerless for weekly incapacity benefits for the period January 12, 1995 to February 13, 1995, together with payment of his medical expenses. Peerless, which states its coverage ended on January 20, 1980, (Insurer brief 1), filed a motion to join American as a party. This motion was allowed. The administrative judge then issued a conference order directing Peerless to pay the claimed benefits. Peerless appealed the conference order and the case was returned to the same administrative judge for a full evidentiary de novo hearing.
The preeminent issue at hearing was whether Peerless should pay the claimed benefits because the 1995 medical problem was a sequelae of the 1979 injuries or whether American should pay because there was a new injury in January 1995. After a full hearing including a § 11A medical examination, the judge directed Peerless to pay the claimed benefits. Pertinent to his conclusion is the following finding:
I find no specific incidents of re-injury or further injury at work in 1994 and 1995; I find the employee's knee continued to deteriorate as a result of the 1979 industrial injuries and that the employee's incapacity is directly attributable to those 1979 industrial injuries; . . . .
(Dec. 8.)
The case comes to the reviewing board on appeal by Peerless. For the reasons that follow, we think the appeal has merit and recommit the case to the hearing judge for further findings consonant with this opinion.
It was the uncontroverted opinion of Dr. Lawrence Geuss, the § 11A medical examiner, that the work activities performed by Mr. Thibeault, including bending, stooping and climbing, would be sufficient to hasten the rate of wear in the left knee. Aggravation or acceleration of a pre-existing infirmity to the point of disablement is as much a personal injury as if the work had been the sole cause. Brightman's Case, 220 Mass. 17, 20 (1914); Donlan's Case, 317 Mass. 291, 294 (1944); Blevin's Case, 15 Mass. App. Ct. 926 (1983). The law in this jurisdiction is that the insurer providing workers' compensation coverage at the time of the most recent injury bearing a casual relationship to the incapacity is liable for payment of the entire claim. Casey's Case, 348 Mass. 572 (1965). All that is required for liability to attach is that the most recent injury be "even to the slightest extent a contributing cause of the subsequent disability." Rock's Case, 323 Mass. 428, 429 (1948).
The unchallenged medical opinion of the § 11A examiner is that the employee's work activities after the 1979 injuries and surgeries hastened the onset of his 1995 knee problem. The judge seems to underpin his determination that Peerless should pay the claim on his finding that there were no specific work related injuries in 1994 and 1995. But this finding does not end the inquiry. We turn to Zerofski's Case, 385 Mass. 590 (1982), for the controlling legal principle. The Zerofski court said at 594, 595:
The line between compensable injury and mere "wear and tear" is a delicate one, as a comparison of the results reached in past decisions reveals. Nevertheless, the distinction is necessary to preserve the basic character of the act. . . . To be compensable, injury must arise "out of" as well as "in the course of" employment, and "[a] disease of the mind or body which arises in the course of employment, with nothing more, is not within the act." . . . . The distinction between compensable and noncompensable injuries, however, involves more than the factual problem of causation. In some cases work may be a contributing cause of injury, but only to the extent that great many activities pursued in its place would have contributed. When this is so, causation in fact is an inadequate test.
Drawing from the nature of the purposes of the act as we have described them, and from the pattern of our decisions over the years, we arrive at the following restatement of the range of harm covered by the act. To be compensable, the harm must arise either from a specific incident or series of incidents at work, or from an identifiable condition that is not common and necessary to all or a great many occupations. The injury need not be unique to the trade, and need not, of course, result from the fault of the employer. But it must, in the sense we have described, be identified with the employment.
(emphasis added.)
Turning back to the hearing judge's decision, it covers the first half of the Zerofski's Case restatement. The judge expressly found that there was no specific incident or series of incidents at work in 1994 or 1995. However, he has yet to confront the second part of the test. On recommittal, the judge must decide whether the employee's activities at work are identifiable conditions not common and necessary to all or great many occupations. In its brief, Peerless argues that the work activities included carpentry, plumbing, painting, wallpapering, carpet laying, apartment cleaning, grass cutting, snow shoveling, moving appliances and climbing ladders. (Tr. 23, 24, 26, 37, 38, 41.) On recommittal, if the judge finds that the employee did indeed engage in these activities, he must then determine whether they are activities common and necessary to all or great many occupations. If they are not, and if they hastened the onset of his most recent knee problem, then American is responsible for the claimed benefits.
We return this case to the senior judge for reassignment to the hearing judge for further findings consistent with this opinion.
So ordered.
_____________________ William A. McCarthy Administrative Law Judge
_____________________ Sara Holmes Wilson Administrative Law Judge
_____________________ Suzanne E.K. Smith Administrative Law Judge
FILED: November 23, 1998