Opinion
BOARD No. 092352-86
Filed: June 6, 1995
REVIEWING BOARD:
Judges Fischel, McCarthy, and Wilson.
APPEARANCES:
Joel F. Soforenko, Esq., for the employee.
Donald E. Phillips, Esq., for the insurer Aetna Casualty Surety.
James F. Martin, Esq., for the insurer National Union Ins. Co., with Kimberly Davis Crear, Esq., on brief.
The employee in this successive insurer liability case appeals from the decision of the administrative judge which denied her claim for compensation in 1986 after finding she suffered a work-related low back injury on February 21, 1984 and that in May 1986, "while the employee was at work and moving around quite a bit . . . she had a relapse of her chronic back and leg discomforts." (Dec. 5.) The judge found that her claim for benefits from May 1986 was not related to an alleged work injury on May 20, 1986, and denied her claim for further compensation. (Dec. 8.)
Aetna paid § 34 benefits to the employee following the February 21, 1984 injury. Aetna insured Tambrands, Inc. from January 1984 to January 1986, when National Union came on the risk.
As grounds for appeal, the employee argues that the administrative judge erred in failing to address the issue whether the claimed incapacity on May 20, 1986 was an aggravation of the compensable February 21, 1984 injury, subjecting the successor insurer to liability. In the alternative, the employee argues that the administrative judge failed to consider whether the employee suffered a recurrence of incapacity, subjecting the first insurer to liability. A first insurer may be liable for a recurrence; for later incapacity stemming from wear and tear of the previously work-related condition; or for incapacity resulting from a non-work-related exacerbation of her original industrial injury. Zerofski's Case, 385 Mass. 590 (1982); Twomey v. Greater Lawrence Visiting Nurses Assoc., 5 Mass. Workers' Comp. Rep. 156 (1991).
We find the administrative judge's subsidiary findings wholly inadequate to permit this board to determine whether he applied correct principles of law to determine the nature of the employee's May 20, 1986 incapacity and thereby determine insurer liability. See Crowell v. New Penn Motor Express, 7 Mass. Workers' Comp. Rep. 3 (1993). It was incumbent upon the judge to determine whether any May 1986 incapacity was:
1. an identifiable aggravation or second injury subjecting the successor insurer on the risk to liability; Trombetta's Case, 1 Mass. App. Ct. 102 (1973); Long's Case, 337 Mass. 517; Zerofski's Case, supra;
2. in the absence of a specific incident, incapacity resulting from an identifiable condition of employment not common or necessary to all or a great many occupations; Sharmeta v. New England Telephone Co., 6 Mass. Workers' Comp. Rep. 192 (1992); Zerofski's Case, supra; or
In Sharameta v. New England Telephone Co., 6 Mass. Workers' Comp. Rep. 192 (1992), this board analyzed the principles and tests of compensability set forth in Zerofski's Case, 385 Mass. 590 (1982). The board in Sharameta noted:
The (Zerofski's Case) decision has been subject to some confusion precisely because the court's discussion transcends the concept of "wear and tear," which was the issue before it, in an attempt to place the "wear and tear" doctrine in its proper context under the act. That context includes the principle that 1) injury arises out of employment if it is attributable to the nature, conditions, obligations or incidents of employment, i.e., employment looked at in any of its aspects, Zerofski's Case, 385 Mass. 590, 592, and 2) an employee may recover even when his injury is due in part to his own weakness or vulnerability, i.e., the employer must take the employee "as is." Id. at 593.
The concept of wear and tear places a limitation on what constitutes compensable injury and the Zerofski's court describes the line between the two as a "delicate one." id. at 594, while recognizing that the . . . board must determine as part of its fact-finding responsibilities whether a causal connection exists between employment and injury. Id. at 594. The Zerofski's restatement as clarified by the court in Kelly's Case, 394 Mass. 684 (1985), which emphasizes the alternative nature of the test, provides:
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.
Zerofski's Case, 385 Mass. at 594-95; Kelly's Case, 394 Mass. at 688.
What Zerofski's Case adds to the pre-existing state of the law is the principle that where work contributes to injury only to the extent that "a great many activities pursued in its place would have contributed," causation in fact is an inadequate test of compensability.
Sharameta, supra, at 194-195. Although non-compensable as to the self-insurer, the first insurer was liable to pay incapacity compensation to Zerofski in 1986 because the aggravation of the prior compensable injury was attributable to wear and tear.
3. incapacity relating to the first injury in that the incapacity in May 1986 involved non-work-related wear and tear to the previously work injured bodily part; Id.; or
This is the pattern the court relied upon in Zerofski's Case, 385 Mass. 590 (1982), where, after a 1964 compensable toe injury, the employee returned to work for the employer for a decade, going out of work at the point the employer was self-insured. The court found that although Zerofski's leg frequently "broke down" during the decade in which he returned to work, the aggravation of the employee's prior injury due to years of standing and walking at work was not a personal injury within the meaning of the Act because the activities of standing and walking were too common among necessary human activities to constitute identifiable conditions of employment. The court held the first insurer liable to pay compensation in 1976, since the incapacity was the result of the impact of wear and tear on the previously compensable injury.
4. incapacity relating to the 1984 injury because the second period of incapacity was preceded by a non-work-related event, placing the first insurer on the risk. Twomey v. Greater Lawrence Visiting Nurses Assoc., supra; Marmorale v. Osco Drug, Inc., 5 Mass. Workers' Comp. Rep. 31 (1991); or
5. merely the result of wear and tear to non-previously work-injured parts, and therefore, incapacity for which no insurer is liable. Fletcher v. Itek, 6 Mass. Workers' Comp. Rep. 94 (1992).
A "recurrence" and an "aggravation" are not synonymous terms. See Rush v. M.B.T.A., 8 Mass. Workers' Comp. Rep. 225 (1994); Smick v. South Central Mass. Rehabilitative Resources, Inc., 7 Mass. Workers' Comp. Rep. 84 (1993). Nor do the terms automatically delineate which of two insurers may be liable for incapacity. The term "recurrence" attributes later incapacity to the original injury, subjecting the insurer on the risk at the time of the original injury to liability for the second period of incapacity. "Aggravation" is attributable to a supervening incident, subjecting the successive insurer to liability, unless the second period of incapacity is the result of wear and tear at work or a non-work-related incident causally related to the original injury. Zerofski's Case, supra. Either of the latter circumstances may subject the first insurer to liability.
As noted, the first insurer was liable for an "aggravation" of a prior injury in Zerofski's Case, 385 Mass. 590, 591, 596-597 (1981).
Turning to the decision, we find no such analysis. The judge found that in May 1986, "while the employee was at work[,] . . . she had a relapse of her chronic back and leg discomforts" (Dec. 5; emphasis added), and concluded "I do not find an injury on May 20, 1986" (Dec. 7). The judge denied the employee's claim for incapacity compensation beginning May 20, 1986. He made no findings as to whether there was either a recurrence of the 1984 incapacity, or an aggravation of the prior work-related condition due to wear and tear.
Absent subsidiary findings on the issues raised above, this decision is inadequate for our review. See Praetz v. Factory Mutual Engineering Research, 7 Mass. Workers' Comp. Rep. 45 (1993). We vacate the finding as to lack of work-related incapacity in 1986, and remand for further findings. As the judge who wrote the decision no longer serves the department, this case is returned to the senior judge for reassignment.
The newly assigned judge is directed to make the analysis outlined in this decision to determine whether the condition the employee suffered from in May 1986 was (1) a recurrence of her original injury due to wear and tear; or (2) a non-work-related incident causally related to the original back injury; see Twomey v. Greater Lawrence Visiting Nurses Assoc., 5 Mass. Workers' Comp. Rep. 156 (1991). If the judge determines that wear and tear caused the incapacity, he must determine whether the wear and tear was to previously work-injured bodily parts, subjecting the first insurer to liability. See Zerofski's Case, supra.
If the judge does not find (1) or (2) above, he should then determine whether the condition the employee suffered from in May 1986 was (3) a new injury in the form of an aggravation; or (4) merely the result of wear and tear, in the context of no prior compensable injury. Once that determination is made, the judge can assign liability to the appropriate insurer, or, if the incapacity is not connected to any employment, to neither. Further evidence may be taken as deemed necessary, particularly in view of the passage of time.
Judges McCarthy and Wilson concur.