Opinion
BOARD No. 04968191
Filed: August 29, 1997
REVIEWING BOARD DECISION
(Judges McCarthy, Maze-Rothstein and Smith)
APPEARANCES
Michael M. Kaplan, Esq., for the employee.
Lewis G. Evangelides, Esq., for the insurer.
Madeline Wheet, now seventy-seven years old and a high school graduate, worked for Bose Corporation from 1972 until September 9, 1989 when she injured her left shinbone and broke her left knee in a fall at work. She received workers' compensation benefits for this injury. On December 4, 1989 she returned to her job inspecting speaker parts. (Dec. 2, 3.)
In June 1990 her right shoulder began bothering her and in October 1990 she began treating with a chiropractor for right shoulder pain sometimes radiating to her right arm and neck. (Dec. 2, 3.)
She first told her supervisor about her right shoulder and arm difficulty in November 1990 when she was assigned heavier work inspecting amplifiers. This job entailed repeated lifting of amplifiers weighing ten and one-half pounds each. Her supervisor assigned part-time helpers to assist in lifting the amplifiers. Those assistants left work around March of 1991. (Dec. 3.)
Sometime thereafter Ms. Wheet entered the hospital for an unrelated surgical procedure. When the surgery had to be postponed because of her diabetic condition "she returned to work on or about May 28, 1991 whereupon she was laid off". (Dec. 3.)
Ms. Wheet filed a claim for benefits which the insurer resisted. A § 10A conference produced an order denying the employee's claim. Her appeal gave rise to a full evidentiary hearing. (Dec. 2.)
The issues at hearing were liability and extent of incapacity. The judge found that Ms. Wheet's shoulder condition was not related to her September 9, 1989 work injury. He further found that she had a pre-existing degenerative condition of her shoulder that was aggravated by the requirements of her job leaving her totally incapacitated from her last day of work until June 17, 1993 and partially incapacitated thereafter. (Dec. 7.) The insurer does not dispute this finding. The sole basis for the insurer's appeal is the judge's designation of April 30, 1991 as Ms. Wheet's last day of work. The insurer argues that this date is contrary to the evidence.
In his decision the judge found that Ms. Wheet stopped working on April 30, 1991. (Dec. 5.) He reiterated the April 30, 1991 date in his general findings. To wit, ". . . she was required to cease work on April 30, 1991" and "Mrs. Wheet was totally disabled from the time she stopped working on April 30, 1991 . . ." (Dec. 7.) However, the insurer points out that Ms. Wheet testified that her job became heavier from the time the assistants left her until her last day of work, which she stated was May 10, 1991. (Tr. 23.)
Central to the insurer's argument is the stipulation that Wausau's coverage of the employer ended on April 30, 1991. After that date the employer was self-insured. (Dec. 2.)
The parties stipulated to the ending of Wausau's coverage on April 30, 1992, apparently in error. (Tr. 3.) The judge corrected the date to April 30, 1991 at the hearing (Tr. 7) and in his decision. (Dec. 2.) Neither party appealed the 1991 date.
Where there are successive insurers the judge must determine which insurer was on the risk at the time of the most recent injury bearing causal relation to the employee's incapacity.Evan's Case, 299 Mass. 435 (1938). This successive insurer rule is applicable to repetitive motion injuries. Batson v. Beth Israel Hospital, 9 Mass. Workers' Comp. Rep. 267, 271 (1995).
Critical in the present case is the precise date on which the employee actually performed work. Ms. Wheet testified on direct examination that she stopped working for Bose Corporation around May 10, 1991. (Tr. 23.) If the employee indeed worked until May 10, 1991, the finding of incapacity beginning on April 30, 1991 is error. The judge adopted Dr. Kenrick's July 27, 1992 report in which he states that Ms. Wheet stopped working on April 30, 1991. (Dec. 5; Exhibit 3 of Dr. Ritter's dep.) However, in deposition Dr. Kenrick moved away from that date in the following series of insurer questions.
Q: Now, this [July 27, 1992 report] reads, Doctor: She continued to work with pain until April 30, 1991 . . . correct?
A: Uh-hum. (Nods head up and down.)
Q: Now, Doctor, why did you choose the April 30, 1991 date?
A: Good question. . . .
Q: Doctor, the reason I'm asking that question is because it was stipulated to at the trial, . . ., that Ms. Wheet worked until May 28, 1991.
This is a misstatement. There was no stipulation as to Ms. Wheet's last day of work. The parties stipulated that Ms. Wheet was laid off sometime in late May. (Dec. 2, Tr. 8.) The employee's attorney did not object.
A: All right. May 28th.
(Kenrick dep, 20-21.) Finally, Ms. Wheet testified that Dr. Kenrick gave her a disability note containing restrictions in April 1991, that she gave the note to the company nurse and to her supervisor and that she thereafter performed work which exceeded the restrictions. (Tr. 26-27.) The note, admitted as exhibit 3 in Dr. Ritter's deposition, is dated April 30, 1991. This evidence, if adopted, would support an inference that Ms. Wheet worked after April 30, 1991.
The case is hereby remanded. The judge must look at the credible evidence and determine Ms. Wheet's last day of work. The judge in his discretion may take additional evidence to resolve this issue.
So ordered.
__________________________ William A. McCarthy Administrative Law Judge
__________________________ Susan Maze-Rothstein Administrative Law Judge
Filed: August 29, 1997
I would affirm the decision for two reasons: 1) Evidence in the record rationally supports the judge's decision that the employee last worked on April 30, 1991. 2) Even if the judge erred on this date, the error is harmless in light of his specific finding that the employee's condition did not change after March 30, 1991. See (Dec. 4).
In reviewing a judge's factual findings, the test is not what we would find from the cold appellate record, "but is instead limited to whether there is sufficient evidence, including all rational inferences therefrom, to support the judge's decision."Marconi v. Crusader Paper Co., 10 Mass. Workers' Comp. Rep. 609, 611 (1996). In other words, "the question is not what conclusion we would reach if the case had been presented to us in the first instance but whether there is any evidence, including all rational inferences of which the evidence is susceptible, upon which the findings of the [judge] could have been made, and if there is such evidence we do not disturb the findings unless they are vitiated by some error of law." Buck's Dependents' Case, 342 Mass. 766, 769-770 (1961).
I have examined with care all of the evidence, including the medical testimony, records, and reports. The hearing record contains conflicting evidence about Wheet's last day of work. The judge noted that her testimony on this point was confusing. (Tr. 53.) The judge adopted the report of the treating physician, Dr. Kenrick, and found that "Mrs. Wheet stopped working on April 30, 1991" and that she "improved after she stopped working." (Dec. 5.) Dr. Kenrick never recanted his report of the last day of work. He merely agreed with a different date when falsely told that the last day of work had been established as May 28, 1991. (Kenrick Dep. 21.) The Kenrick report and progress notes constitute competent evidence which rationally support the judge's factual finding.
Dr. Kenrick's progress notes show that in April 1991, Wheet's shoulder was bothering after working. (Ritter Dep. Ex. 3, Kenrick progress note of 4/22/91.) By May 9, 1991, the shoulder was much improved. (Id., Kenrick progress note of 5/9/91.)
Wheet claimed an injury on April 30, 1991 with incapacity commencing May 1, 1991. (Employee's Claim, dated 10/4/91.) If the insurer had evidence that Wheet was injured from work performed after April 30, 1991, when its coverage ended, it could have filed a claim for a subsequent injury and moved for joinder. See G.L.c. 152, § 15A; 452 CMR 1.07 ("A claim for compensation may be filed by any person . . . who believes that benefits are due under M.G.L.c. 152."). It did not do so.
To clarify the date of injury, the judge ordered the insurer to submit a wage statement showing the dates of actual work. The insurer did not comply with that discovery order.
A subsequent insurer cannot be held liable unless the work it insured caused some degree of incapacity. Alicea v. Russell Harrington Cutlery, 9 Mass. Workers' Comp. Rep. 581, 585 (1995). Yet here, the judge found explicitly that Wheet's "condition remained unchanged from March 30, 1991." (Dec. 4.) Both Wheet's testimony and the medical evidence from her treating physician support that finding. The judge's determination that no new injury occurred after April 30, 1991 is thus grounded rationally in the evidence.
Wheet testified that on April 30, 1991 she could only lift a couple of pounds, the same amount that she could lift as of May 29, 1991. (Tr. 29-30.) When asked if her condition changed at all between April 30 and May 30 1991, she responded: "I would say no, not in that short time." (Tr. 30). When asked about her pain medication in April 1991 and thereafter, Wheet testified that she has been taking the same amount, two aspirins every night and Advil during the day. (Tr. 31-32.)
The level of her daily life activities did not change after April 30, 1991. (Tr. 33-35). She testified:
Question by the judge: Has anything changed since April of 1991 as far as those chores are concerned?
Answer by Wheet: Not really. (Tr. 35.)
The decision clearly addresses the disputed issues, rendering it adequate for appellate review. G.L.c. 152, §§ 11B and 11C. It is "factually warranted and not `[a]rbitrary or capricious,' in the sense of having adequate evidentiary and factual support and disclosing reasoned decision making within the particular requirements governing a workers' compensation dispute."Scheffler's Case, 419 Mass. 251, 258 (1994). I would affirm it.
__________________________ Suzanne E. K. Smith Administrative Law Judge