Opinion
BOARD No. 04224288
Filed: May 1, 1997
REVIEWING BOARD DECISION
(Judges McCarthy, Smith and Maze-Rothstein)
APPEARANCES
Anne Gugino Carrigan, Esq., for the employee.
Daniel B. Kulak, Esq., for the self-insurer.
The self-insurer appeals from an award of § 34A permanent and total incapacity benefits. It contends that the decision is arbitrary and capricious because the record lacks any competent evidence of a causal connection between the employee's psychiatric impairment and the stipulated industrial accident. We agree and reverse the benefit award and recommit for additional medical evidence on the psychiatric issue.
Wilkinson suffered an injury at work on June 27, 1988, when she fell out of a chair onto her head, neck, shoulder and back. (Dec. 876.) After attempting to return to work a number of times, she left work in the summer of 1989, and has not returned. (Dec. 877.) Wilkinson had fractured her back at work in 1985. After the 1985 injury, she had never been able to work full time. (Dec. 876.)
Wilkinson exhausted her § 34 temporary total incapacity benefits on November 14, 1993, and filed for § 34A permanent and total incapacity benefits. The claim was denied at the § 10A conference on June 2, 1994. Due to Wilkinson's unavailability, the impartial medical examination was not held until August 29, 1995. (Dec. 875.) The hearing de novo on Wilkinson's appeal of the conference order was held on October 5, 1995. (Dec. 874.)
The impartial physician, an orthopedic surgeon, diagnosed three conditions: "I. Chronic cervical spine and low back syndrome. II. Marked deconditioning secondary to diminished physical activity (exercise). III. Significant psychological component." (Dec. 878.) The doctor found no objective findings attributable to the 1988 industrial injury. He found "minimum objective findings" attributable to age and deconditioning. The doctor further opined, regarding the employee's psychological condition, that she "has a very significant functional component that is overwhelming in this particular case." (Dec. 878.) However, being an orthopedic surgeon, and not a psychiatrist, the doctor stated that he was not qualified to offer an opinion on the cause of the employee's psychiatric difficulty, which he considered to be disabling. (Dec. 879.)
The judge concluded, in relevant part, that the impartial physician's finding that the employee suffers from a psychiatric condition, combined with the employee's credible testimony as to the history of her complaints, formed a basis for finding that the employee's psychiatric condition was causally related to the 1988 work injury. (Dec. 881.) The judge viewed the impartial physician's three diagnoses as working together to totally disable the employee. (Dec. 880.) The judge therefore awarded the employee § 34A permanent and total incapacity benefits. (Dec. 881-882.)
The self-insurer contends that the judge arbitrarily awarded benefits for an incapacity that has no support in the medical evidence. We agree.
Where the medical issue is beyond the realm of a lay person's general knowledge, expert medical testimony is needed to establish a causal connection between a claimed incapacity and an industrial injury. Josi's Case, 324 Mass. 415, 418 (1949). We have previously held that such expert opinion is required in cases of psychiatric disability because the etiology of mental disability is rarely a matter of general human knowledge and experience.Lavoie v. Westfield Pub. School Sys., 7 Mass. Workers' Comp. Rep. 77, 81 (1993). We see no reason to vary that requirement in this case.
The impartial medical examiner provided the sole medical evidence in the case. He did not render an opinion that the disabling psychiatric condition was causally related to the work injury. The judge was not competent to fill that evidentiary gap on his own. He needed expert medical evidence.
"Certainly a decision by the administrative judge to foreclose further medical testimony where such testimony is necessary to present fairly the medical issues would represent grounds either for reversal or recommittal." O'Brien's Case, 424 Mass. 16, 22-23 (1996). Neither party filed a motion to present additional medical evidence. However, faced with a claim he believed to be meritorious and with an inadequate impartial report, the judge should have exercised his authority to sua sponte require additional medical evidence. See § 11A(2). Such approach, in the circumstances of this case, would have provided each party with a fair opportunity "to make out its position on the disputed issue." O'Brien, supra. Because the judge instead attempted to plug the evidentiary hole with his own causation opinion, the decision cannot stand.
We therefore reverse the benefit award and recommit the case to the administrative judge for the allowance of additional medical evidence on the psychiatric issue. In light of the passage of time during the pendency of the appeal, the judge may take such additional evidence as he finds justice requires.
So ordered.
_________________________ Suzanne E.K. Smith Administrative Law Judge
_________________________ William A. McCarthy Administrative Law Judge
_________________________ Susan Maze-Rothstein Administrative Law Judge
Filed: May 1, 1997