Opinion
BOARD No. 01328592
Filed: July 11, 1997
REVIEWING BOARD DECISION
(Judges Fischel, Wilson and Levine)
APPEARANCES
James A. McDonald, Jr. Esq. for the employee.
George T. Strzetelski, Esq., for the insurer.
The employee appeals from a decision in which the administrative judge allowed the insurer's request to discontinue benefits, upon finding that the employee's present disability was no longer causally related to her accepted industrial injury to her left wrist. Because the opinion of the § 11A examiner was that the employee's present disability was primarily due to her five causally related surgeries, in addition to her pre-existing arthritis, we reverse the decision. We remand the case for an assessment of the extent of incapacity.
The employee has worked in factories doing assembly and fish processing work since 1976. In August 1991 the employee started working with the employer, where she was an assembler/packer. (Dec. 4.) The employee worked at a conveyor belt assembling scotch tape dispensers and packing them into boxes. (Dec. 4-5; Tr. 11-13.) In late March 1992, the employee was assigned to a different task, pulling tape from large rolls for salvage. (Dec. 5.) After performing this task for about two weeks the employee began to experience pain in and bruising of her left thumb and wrist. The parties stipulated to the occurrence of a compensable industrial accident on April 2, 1992, the employee's last day of work. (Dec. 5.)
Upon being examined by her treating physician, Dr. Nicholas Cappello, the employee was diagnosed with carpometacarpal joint ("CMC") arthritis that was probably work related, with some degenerative changes. (Dec. 5-6). The doctor performed a capsulotomy with capsulodesis with partial removal of the trapezium on June 2, 1992. The employee continued to report constant pain, however, so the doctor performed a second procedure on November 17, 1992: a capsulodesis of the CMC joint. The doctor removed the pins in the employee's left wrist on December 3, 1992. (Dec. 6.) Six months later, Dr. Cappello referred the employee to Dr. Andrew Terrono for another surgical procedure, an excision of the distal pole of the scaphoid and fusion of the CMC joint with radial bone graft on May 19, 1993. (Dec. 6.) On May 31, 1994, Dr. Cappello removed the hardware installed in the employee's wrist. (Dec. 6-7.) No dispute was raised as to the acceptance of these procedures by the insurer.
The insurer filed a complaint to discontinue benefits on November 12, 1993, which was denied at the § 10A conference on September 12, 1994. (Dec. 2.) The insurer appealed to a hearing de novo, and an impartial medical examination was conducted on November 9, 1994. (Dec. 2, 7.) The impartial examiner diagnosed the employee's condition as "pre-existing arthritis of her first carpal, metacarpal joint, possibly bringing out some of the synovitis symptoms by a short period of use of her wrist . . . at her new job." (Dec. 7.) The § 11A examiner did not find causal relationship between the employee's present arthritic condition and her industrial injury. (Dec. 7; Dep. 20.) In her deposition, however, the § 11A examiner gave her final opinion regarding causation of the employee's present medical disability:
Q: Is it fair to say that the disability as you described it today is primarily caused by this ongoing, pre-existing arthritis?
A: And all the subsequent surgeries, et cetera, on that, yes.
(Dep. 29.)
In rendering his decision the judge adopted the expert's opinion "regarding lack of causal relationship of the employee's current medical condition to the claimed industrial injury of April 2, 1992." (Dec. 7.) He concluded "that the employee is now at her pre-industrial injury status." (Dec. 8.) At the same time, however, the judge found the employee's medical treatment to be reasonable and necessary as related to her industrial injury. (Dec. 8.) The judge allowed the insurer to discontinue payments of incapacity benefits as of the date of the impartial examination, and ordered recoupment pursuant to § 11D. (Dec. 9.)
The employee first appealed to the reviewing board on the ground that the judge had rendered his decision without giving the employee the opportunity to present her argument that the impartial medical opinion was inadequate, and that additional medical evidence was therefore warranted. G.L.c. 152, § 11A(2). Before filing briefs, the parties stipulated to a remand for the limited purpose of determining that issue. The judge denied the employee's request for additional medical evidence in his decision on remand, filed November 21, 1995. The employee appeals anew to the reviewing board.
The employee argues, inter alia, that the judge mischaracterized the medical evidence on causal relation. We agree with the employee that the judge did not take into account the entire causation opinion of the § 11A examiner. Specifically, the judge ignored the doctor's final statement on causal relation, coming at the end of her deposition, that "all the subsequent surgeries" were a primary cause of the employee's present disability. (Dep. 29.) (emphasis added) See Perangelo's Case, 277 Mass. 59, 64 (1931) (doctor's last rendered opinion is controlling).
We note that the doctor's earlier opinions, in her report and at the deposition, were not at all contradictory to her final opinion. They merely stopped before the subject was addressed. (Dep. 20; Statutory Ex. #1 [work would not give the employee arthritis of the CMC joint]). The doctor rendered no opinion on whether the work could have aggravated the employee's symptomatology. (Dep. 21-22.) As a matter of initial liability, however, that issue was undisputed, since this was an accepted case.
We reverse the decision discontinuing incapacity payments because the opinion of the § 11A examiner, including all rational inferences which could be drawn therefrom, supports only one conclusion: The employee's present medical condition continues to be causally related to the accepted industrial injury to the employee's left wrist. See Newton v. Merrimac Paper Co., 10 Mass. Workers' Comp. Rep. 499, 501-502 (1996), aff'd, No. 96-J-470, April 17, 1997; Medeiros v. San Toro Mfg.. 7 Mass. Workers' Comp. Rep. 66, 68 (1993). The § 11A physician stated at her deposition that the surgeries were a primary cause of the employee's present disability. (Dep. 29.) See supra. The surgeries all involved the injured CMC joint for which the insurer accepted liability back in 1992. (Dec. 6-7.) No dispute was presented as to liability for payment of the procedures. See Dec. 6-7, and see Tr. 17, 29, 30. The issue of the relationship of the accepted surgeries was not before the § 11A examiner. Moreover, the judge concluded that the employee's medical treatment, which certainly included those five surgeries, was reasonable and necessary as related to the accepted industrial injury. (Dec. 8.) The sequelae of causally related medical treatment is compensable under the Act. See Burns's Case, 218 Mass. 8, 10-11 (1914) (death from blood poisoning resulting from bedsore was compensable where protracted hospital stay was due to industrial injury). The present case is consistent with that rule.
The only matter that requires further discussion is the application of G.L.c. 152, § 1 (7A), as amended by St. 1991, c. 398, § 14, which sets out the following restriction on the compensability of industrial injuries that combine with pre-existing noncompensable medical conditions:
If a compensable injury or disease combines with a preexisting 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 necessarily predominant cause of disability or need for treatment.
Id. (Emphasis added). See Robles v. Riverside Management, Inc., 10 Mass. Workers' Comp. Rep. 191, 194-198 (1996) (extensive discussion of "a major but not necessarily predominant" standard). Assuming no prior industrial injury, the question of how this employee's industrial injury to her wrist combined with her preexisting non-compensable arthritic condition affecting the same area requires an analysis under the § 1 (7A) standard.
In Robles v. Riverside Management, Inc., supra, the reviewing board noted that even though a doctor does not use the term, "major," anywhere in his opinion, that it is the medical opinion in total not the presence or absence of any specific legal term that should govern whether his testimony supports a favorable finding under the § 1 (7A) standard. Id. at 198. We think that the § 11A examiner's uncontradicted opinion that the employee's disability is "primarily" caused by the five work related surgeries (and preexisting arthritis) meets that standard. We note that The American Heritage Dictionary has more than a dozen definitions of "primary," among which is "being a fundamental or basic part of an organized whole." The American Heritage Dictionary 983 (2d College ed. 1991). The various definitions give preeminence to whatever is in the category of primary. The medical expert here considered the sequelae of the five work related surgeries a primary cause of her present incapacity. We conclude that the employee has met her burden of proving causally related incapacity under § 1 (7A) as a matter of law.
We note that an argument could have been posed by the employee that she did not need to meet the heightened standard of § 1 (7A) causation, as there was evidence adduced at hearing that she had suffered a compensable injury to her left wrist — carpal tunnel syndrome for which she underwent surgery — some seven years earlier while working as a fish packer. (Tr. 15-16.) See Newton v. Merrimac Paper Co., 10 Mass. Workers' Comp. Rep. 499, 501-502 (1996), aff'd, No. 96-J-470, April 17, 1997, for discussion of continued viability of "as is" doctrine where work injuries combine to cause disability. However, the point is moot in view of our disposition of the case under § 1 (7A).
We reverse the discontinuance of weekly incapacity benefits, because the evidence, including all rational inferences which may be drawn therefrom, can only support one result. Newton v. Merrimac Paper Co., supra, at 502. We remand the case for further proceedings on the extent of incapacity. We reinstate the employee's § 34 benefits at the stipulated rate. So ordered.
_____________________________ Carolynn N. Fischel Administrative Law Judge
_____________________________ Fredrick E. Levine Administrative Law Judge
Filed: July 11, 1997
I concur with the majority that the impartial physician's final causation opinion — that the primary cause of the employee's present disability was her ongoing, pre-existing arthritis and her subsequent surgeries — should have been addressed by the judge.
Because I am reluctant to intrude on the fact finder's authority to weigh and draw reasonable inferences from this opinion and the medical evidence as a whole, I would remand the case rather than reverse on the causal relationship issue.
I do not read the deposition to say that the expert stated unequivocally that the surgeries were the primary cause of the employee's disability under § 1 (7A). To the contrary, the testimony, which neither party attempted to clarify, was that the primary cause was the ongoing, pre-existing arthritisand the subsequent surgeries, implying that the conditions in the aggregate were the primary cause. Indeed, when one applies the ordinary meaning of "primary," only one of these factors, standing alone, can be a primary cause. To be sure, each might be found a major cause on all the evidence and thus meet the § 1 (7A) standard of causation. On the other hand, one might be found a major cause and one minor. The fact that the pre-existing arthritis and the surgeries together comprise "the primary cause" of the present medical impairment leaves unanswered the question as to the degree that each contributed to that "primary cause." Had the expert opined that the surgeries were the primary cause of the physical disability, or that the surgeries and the pre-existing arthritis were each a major cause, I would not hesitate to conclude that the § 1 (7A) standard of "a major cause" was met. But when a medical opinion is capable of different interpretations, each having a distinct legal outcome, the case must go back to the fact finder to assess the medical evidence as a whole and determine whether the surgeries remain "a major cause" of the resulting disability.
The expert witness was not asked to explain whether the operations were a major cause of the ongoing disability or merely a contributing cause.
The relevant definition of primary is: "Being first or best in degree, quality, or importance." The American Heritage Dictionary 983 (2d College ed. 1991).
Accordingly, I would recommit the case to the administrative judge for further findings of fact on the issue of whether the compensable injury remains a major cause of medical disability, with leave to exercise his discretion to admit further medical evidence if he deems the impartial opinion inadequate or the issues complex. See Martinez v. Goddard House Nursing Home, 10 Mass. Workers' Comp. Rep. 566, 569 (1996); Robles v. Riverside Management Co., 10 Mass. Workers' Comp. Rep. 191, 196-198 (1996).
_____________________________ Sara Holmes Wilson Administrative Law Judge