Opinion
Board Number: 02548989
Filed: January 31, 1995
REVIEWING BOARD:
Judges Maze-Rothstein, Kirby and Smith.
APPEARANCES:
Stephen S. Ziedman, Esq., for the employee.
Lawrence P. Donnelly, Esq., for the insurer.
The employee appeals the administrative judge's decision dismissing her claims for G.L.c. 152, §§ 34 and 35 weekly compensation benefits. The employee asserts the judge erred in adopting the self-insurer medical expert's opinion which he rendered, without the benefit of two MRI tests performed several months after his final examination and report. We find no error in the judge's adoption of one expert's opinion over another where the evidence supports the findings made. Therefore, we affirm the administrative judge's decision.
The employee, an eleventh grade educated 31 year old, performed direct care work for mentally retarded patients at the Paul Dever State School. After approximately 10 years of service, on May 24, 1989, the employee, then four months pregnant, was assaulted by a 230 pound patient. She thereby sustained back injuries. (Dec. 3; Tr. 4-5).
The self-insurer accepted the case and paid § 34 temporary, total incapacity benefits from May 24, 1989 and continuing. Subsequently, the self-insurer filed a complaint for modification or discontinuance of compensation. After a conference on the matter, the judge ordered a December 3, 1990 termination of the § 34 benefits.
The employee appealed the order. At the de novo hearing she requested § 34 benefit restoration or, alternatively, a § 35 partial incapacity benefit award from the termination date forward. Following the evidentiary hearing, the judge dismissed her claims. He found her present disability testimony not credible and adopted the self-insurer expert medical opinion of Dr. Robert A. Browne, who reported that the employee could return to unrestricted work eight weeks after his final March 1, 1990 examination.
In making his decision, the judge considered the two MRI reports dated July 6, 1990 and October 28, 1990, the employee's reports of expert Dr. Robert Hillier, as well as the aforementioned March 1990 report of self-insurer's expert Dr. Browne. (Dec. 2-3).
The first MRI, performed on July 6, 1990, several months after Dr. Browne's examination, showed a low back left lateral and focal disc herniation with mild neural foramen narrowing and minimal thecal sac impingement. (Employee Exhibit No. 3). The second MRI, performed on October 28, 1990, revealed mild degenerations with a central disc protrusion or minimal left sided herniation at the same level. (Employee Exhibit No. 2).
Dr. Hillier, the employee's treating physician, considered these reports and gave a final opinion on February 6, 1991, almost a year after Dr. Browne's last examination. Dr. Hillier believed the employee could not return to direct care work or any kind of work requiring either repetitive or occasional heavy lifting. (Employee's Exhibit No. 4). He further related the employee's back condition causally to the May 24, 1989 injury and suggested that she should consider retraining. (Employee Exhibit No. 4).
The self-insurer rested on the 1990 report and opinion of Dr. Browne, who found neither objective abnormalities nor anything to suggest a causal nexus between the employee's injury and her then current symptoms. He opined that with eight weeks of gradually increased physical activity beyond his March 1, 1990 examination, the employee would be able to return to unrestricted activity. (Dec. 5; Insurer's Exhibit No. 3).
We are unpersuaded by the employee's argument that the judge erred when, in deciding the case, he considered the two MRIs and current employee medical opinions and then chose to adopt the antecedent opinion of self-insurer's expert Dr. Browne. The employee asserts this constitutes a contradiction and thus an error of the law. We do not agree.
Where issues of causation and extent of disability are beyond the common knowledge and experience of lay persons, the judge must rely on expert medical testimony with evidentiary support. See Galloway's Case, 354 Mass. 427, 431 (1968). It is well settled that a judge determines the probative value of medical evidence and may select and adopt one expert over another's conflicting opinion. Amon's Case, 315 Mass. 210, 215 (1943); Robinson v. Contributory Retirement Appeal Bd., 20 Mass. App. Ct. 634, 639 (1985). A judge may freely adopt any, all, part or none of an expert's opinion despite submission of conflicting opinions, as long as the findings adequately support the decision and allow for proper appellate review. See Martins v. Longview Fibre Co., 7 Mass. Workers' Comp. Rep. 72, 73 (1993); Walzak v. Massachusetts Rehabilitation Comm'n, 4 Mass. Workers' Comp. Rep. 303, 304 (1990); see also, Praetz v. Factory Mutual Eng'g Research, 7 Mass. Workers' Comp. Rep. 45, 47 (1993). We find that the judge did not err in adopting the erstwhile opinion of Dr. Browne over the contemporaneous opinion of Dr. Hillier because his subsidiary findings are adequate to support that conclusion. See Amon's Case, supra at 215; Martins Case, supra at 73.
The employee had the burden of proving every element of her claim. Sponatski's Case, 220 Mass. 526, 527-528 (1915). For some unspoken strategic reason, she did not choose to cross-examine Dr. Browne by deposition on the issue of the MRI reports, or otherwise develop the record in that regard. When certain medical evidence is adduced prior to other medical evidence, the probative value of the earlier evidence may be affected, but there is no absolute requirement that the judge assign more weight to the evidence bearing a later date. Compare Gherardi v. Rexnord, Inc., 7 Mass. Workers' Comp. Rep. 229, 231 (1993) (where judge fails to make findings with regard to surgery which occurred after an expert cleared employee for work, remand necessary). Certainly, the insurer also took a calculated risk in offering medical evidence that did not include and thus could not contest the subsequent medical revelations.
In this case, whether or not the strategy of leaving the fresher medicals without further exploration changed the weight and probative worth the judge assigned to the two conflicting opinions is left to conjecture. Evidentiary weight and assessments of witness credibility are exclusively in the judge's province and his conclusions must stand unless the decision is beyond the scope of authority, arbitrary or capricious, or contrary to law. G.L.c. 152, § 11C. See Lettich's Case, 403 Mass. 389, 394 (1988) (judge's credibility findings with evidential support are final); Amon's Case, supra at 215 (within judge's authority to weigh probative value of medical evidence). The reviewing board may not reweigh the evidence. G.L.c. 152, § 11C.
Accordingly, as we find no error, the decision of the administrative judge is affirmed. This in no way bars the employee from filing a new claim for future benefits pursuant to the provisions of G.L.c. 152, § 16.
Chapter 152, § 16 provides in relevant part:
When in any case before the department it appears that compensation has been paid or when in any such case there appears of record a finding that the employee is entitled to compensation, no subsequent finding by a member or the reviewing board discontinuing compensation on the ground that the employee's incapacity has ceased shall be considered final as a matter of fact or res adjudicata as a matter of law, and such employee or his dependents, in the event of his death, may have further hearings as to whether his incapacity or death is or was the result of the injury for which he received compensation.
So ordered.
Judges Kirby and Smith concur.