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2 Mass. Workers' Comp. Rep. 304

Department of Industrial Accidents
Commonwealth of Massachusetts

 DIANNE TAYLOR, EMPLOYEE
BROCKTON HOSPITAL, EMPLOYER
LIBERTY MUTUAL INSURANCE COMPANY, INSURER
Board No. 14175-87
December 8, 1988

Appearances:

J. Channing Migner, Esq., for the employee.

D. Michael Arter, Esq., for the insurer.

OPINION

McCARTHY, J. This case is before the Reviewing Board on appeal by the employee from an Administrative Judge's decision filed December 23, 1987, denying the employee's claim for weekly incapacity benefits and payment of medical bills.

The Administrative Judge found that the employee, a registered nurse for 23 years, became employed as a nurse anesthetist at Brockton Hospital in 1979. She worked 50 to 60 hours per week. In October 1986, the employee began weekly psychotherapy treatments with a clinical social worker because of anxiety and depression. On February 19, 1987, she and her supervising anesthesiologist "exchanged heated words" with respect to the method to be used in anesthetizing a six-year old child preparatory to surgery. (D. 2,3.) The following day, February 20, 1987, the employee was spattered with blood as she administered anesthesia to a dying victim of a shotgun wound in the course of emergency surgery.

The balance of that part of the decision found under the caption, Subsidiary Findings of Fact, is devoted to summaries of the testimony of the anesthesiologist with whom the employee exchanged words on February 19, 1987, a licensed clinical social worker and two board certified psychiatrists.
Using his subsidiary findings and his observation of the employee as the basis therefor, the Administrative Judge then made four general findings. (D. 5.) He first found that the employee has treated for depression, anxiety and alcohol abuse since October 1986. Next, he found that the incidents occurring at work on February 19 and 20, 1987, were "normal incidents of her employment as a nurse." Third, he adopted the opinion of the psychiatrist who testified on behalf of the insurer and found that there was no causal relationship between the employee's medical condition and the incidents which occurred at work on February 19 and 20, 1987. Finally, the Administrative Judge found that the employee had failed to prove by a fair preponderance of the evidence that her "present medical symptoms arose out of and in the course of her employment." (D. 5.)

There is no longer any dispute about compensability in emotional disability cases. Albanese's Case, 378 Mass. 14 (1979). The legislature affirmed the expansion of workers' compensation to emotional disability situations when it defined personal injury to include mental or emotional disabilities only where a significant contributory cause of such disability is an event or series of events occurring within the employment." M.G.L. c. 152, § 1(7A). [FN1]

In urging us to reverse the Administrative Judge's decision, the employee mounts four arguments in brief and in oral argument. We consider them in the order raised.

I. IS THE EMPLOYEE ENTITLED TO WORKERS' COMPENSATION BENEFITS DUE TO EMOTIONAL

STRESS CAUSED BY THE EMPLOYMENT?

*2 The employee argues that entitlement to workers' compensation benefits due to emotional stress was erroneously denied because the Administrative Judge gave undue weight to the testimony of the insurer's psychiatric expert.

We reject this argument. The Judge had before him the testimony of two psychiatric experts who proffered predictably contradictory opinions with respect to causal relationship. He found the insurer's expert more persuasive. Pared down to its very essentials, this issue stands or falls on which medical expert's opinion was adopted. The Administrative Judge adopted the opinion of the insurer's expert on this critical issue and we are not disposed to reverse that finding.

Before proceeding to the next issue raised by the employee, two other points deserve mention. First, it is not clear from the record how the May 29, 1987, report of the insurer's psychiatric expert came to be marked as Insurer's Exhibit # 1. The transcript of the proceedings indicates that the testimony of this physician and the employee's medical expert were to be accomplished by deposition. Since the doctor in question was not deposed, we surmise that the report came in under a board rule then in effect. [FN2] We do not find a statement of the physician's qualifications attached to his report, or anywhere else in the record as required by the rule. Neither do we find any objection to the admissibility of the report, although in her brief, the employee alludes to that question. (Employee Brief, p. 10.) Since there is no objection to the report on the record, we treat it as admissible. [FN3] In so doing, we also note passage of a law which makes sweeping changes with respect to the admissibility of such reports at the Department of Industrial Accidents and the courts of the commonwealth. [FN4] Clearly, the trend is toward easy admissibility of medical information.

Our second comment before proceeding to the employee's next issue has to do with the Administrative Judge's general finding to the effect that the events of February 19 and 20, 1987, were "normal incidents of her employment as a nurse" (D. 5.) Prior to the passage of § 1(7A) the distinction between compensable and noncompensable job stress was not easy to see. In Begin's Case, 354 Mass. 599 (1968), the court held that an emotional breakdown from job stress suffered by a mental hospital orderly was not compensable as it was simply wear and tear. Compare the Begin result with Albanese's Case, supra, where the court concluded that Albanese's injury was not the result of everyday stress but rather a series of identifiable stressful work-related incidents. Since life is a mosaic of events, great and small, the difference in a mental disability case between wear and tear and a series of identifiable work-related incidents is at best evanescent. This confusion has been partially allayed with the passage of § 1(7A), which does not require that the event or series of events be stressful or unusual or in some way dramatic or extraordinary. The events need only be a significant contributing cause of the disability. In light of § 1(7A), the Administrative Judge's finding that the events in question were normal for this nurse anesthesiologist is irrelevant. It is his finding of no causal connection between the events and the mental disability which is critical.

II. SHOULD THE ADMINISTRATIVE JUDGE HAVE QUALIFIED THE EMPLOYEE'S TREATING PSYCHOTHERAPIST AS AN EXPERT WITNESS ON THE ISSUE OF THE EMPLOYEE'S MENTAL HEALTH?

*3 The testimony of a Licensed Independent Clinical Social Worker (LICSW), taken on behalf of the employee, was received at the Department of Industrial Accidents on October 15, 1987. The Administrative Judge made subsidiary findings with respect to consultation by the employee with the LICSW in 1986 and 1987 and noted that it was the LICSW who arranged for the employee's admission to the hospital on February 20, 1987 (D. 3.) In the course of the deposition of the LICSW on October 13, 1987, twenty-four objections were made by counsel for the insurer. The Administrative Judge sustained each objection taken, thereby excluding all opinions of the LICSW with respect to causal relationship and disability. There is nothing in the decision explaining why the LICSW's opinion testimony was excluded.

The qualifications of an expert must be passed on by the Administrative Judge as a preliminary question of fact. Louise Caroline Nursing Home Inc. v. Dix Construction Corp., 362 Mass. 306 (1972). His decision, being one of fact, will not be reversed unless there is no evidence to warrant his conclusion. Campbell v. Thornton, 368 Mass. 528 (1975). Testimony on the issue of mental illness need not be confined to physicians with a specialty in psychiatry. The proper criterion is whether the witness possesses sufficient skill, knowledge and experience in the field of his testimony. Commonwealth v. Boyd, 367 Mass. 169, 182 (1975). The curriculum vitae appended to the deposition indicates that the LICSW had considerable training and experience in psychotherapy. It was open to the Administrative Judge to reject the testimony if he felt that the witness failed to qualify as an expert, but he could not base his rejection solely on the grounds that the witness was not a medical doctor. [FN5] Since we are left to speculate as to why the Administrative Judge rejected the proffered testimony, we have no choice but to recommit the case to the Administrative Judge for clarification on this issue.

III. DID THE ADMINISTRATION JUDGE ERR IN ALLOWING THE DEFENSE OF "NO PERSONAL INJURY," "NO DISABILITY," and "NO CAUSAL RELATIONSHIP?"

Restricted as we are to the Judge's decision and the transcript of the record before us in this case, we are at a loss to deal with this issue because the record is absolutely silent on it. In the Administrative Judge's decision (D.1) and the transcript (T.2), it is stated that liability, disability and the extent thereof, and causal relationship are among the issues in dispute. Nowhere in the record do we find any mention of noncompliance by the insurer with the provisions of § 7(1) in this case. Because of the broad sweep and regular recurrence of this issue, we offer the following commentary.

G.L. c. 152, § 7, is one of the cornerstones of the recent Workers' Compensation Reform Act. As § 6 requires an employer to report an injury to its insurer within a fixed time or face a monetary penalty, so does § 7 impose a fourteen-day constraint after notice from the employer within which the insurer must either pay or deny a disability claim. If the insurer fails to comply within the time limit by either payment or denial with specification of grounds and factual basis, then the insurer must pay the penalty established by § 7(2). [FN6] A simple declination of payment is insufficient. The insurer must specify the grounds and factual basis for its refusal to commence payment. Factual basis has been defined by department rule as, "a short and plain statement of the specific facts supporting such grounds." [FN7] Only the grounds and factual basis specified by the insurer may serve as the insurer's defense in the litigation of the claim.

*4 The burden imposed on insurers by § 7 is onerous. In trying to understand § 7, it is helpful to read it in conjunction with § 8 of the Act. [FN8] Section 8 grants broad unilateral rights to discontinue weekly payments only to insurers who make disability payments within fourteen days of notice of injury from the employer. It seems to us a statutory invitation to insurers to pay without prejudice thereby providing financial relief to the claimant during the pendency of the investigation. It is a purchase of time to develop the grounds and factual basis for not accepting the claim. And if the insurer declines the invitation to pay without prejudice, it will be held to the strict, even draconian terms of § 7.

In the case before us, since the record is silent, we do not know where or even whether the employee raised the issue of § 7 prior to coming before the Reviewing Board. We believe that an employee seeking to rely on § 7 as an avenue to prove his case, must raise the issue of noncompliance with § 7 at the conference held under § 10A and again at the hearing under § 11. Failure to place § 7 in issue causes a claimant to forfeit a powerful ally as he seeks to carry his burden of proving each and every element of his case. [FN9] Once the issue is raised, the Administrative Judge must deal with it as he deals with every factual issue. [FN10]

Accepting as true for purposes of this commentary the assertions in employee's brief, we assume that the insurer timely filed its notice of refusal to commence payment of benefits and its intention to contest should a claim be filed. Employee states that the insurer listed five grounds for refusal to pay. They were: (1) no personal injury, (2) disability, (3) causal relationship, (4) late notice, (5) late claim. According to the employee no facts were presented in support of grounds (1), (2) & (3). Instead the insurer merely recited that the employee had not supplied "documents or witnesses" to support personal injury, disability and causal relationship. This response in effect merely called upon the employee to go forward with his burden of proof on these issues. Each case is factually different and whether this response meets the requirements of § 7 is a question to be spread on the record and then decided. The Administrative Judge has the difficult burden of balancing the rights and obligations of the parties under § 7 as he comes to his decision. If the Administrative Judge finds that the employer's report and/or the employee's claims are formulated in the vaguest of terms, an equally vague statement of specific facts by way of defense may well be adequate. In our case for example, if the insurer is simply told that the employee is mentally disabled from work and is not told of the allegation of causal relationship between the disability and the events at work on February 19 and February 20, 1987, it is utterly impossible for the insurer to assert the factual basis for its refusal to pay. In certain cases where the adequacy of the notice to contest is placed in issue, it may be necessary to hear testimony or examine documents placed in evidence with respect to the information available to the insurer when it filed its notice to contest.

*5 We ask the Administrative Judge to conduct his recommittal proceeding with these observations in mind.

IV. DID THE ADMINISTRATIVE JUDGE ERR IN FAILING TO RESPOND TO THE EMPLOYEE'S MOTION TO COMPEL PRODUCTION OF DOCUMENTS?

The employee argues that prior to the close of the evidence, she filed a motion pursuant to 452 C.M.R. 1.12(3) to compel production of certain Brockton Hospital records. We find nothing in the transcript or the Administrative Judge's decision regarding this motion. An appeal on an issue which is not spread on the record is a lost cause and the burden of establishing that record lies on the appealing party.

Since this case is being returned to the Administrative Judge on other issues, we leave it to him to either act on the motion or set out his reasons for not so acting.

This case is recommitted to the hearing judge for a decision anew. The Administrative Judge may reopen the hearing and take further testimony if in his discretion he deems it necessary to do so in order to resolve the issues raised in this decision.

Andrew P. Gotsis
Administrative Law Judge

William A. McCarthy
Administrative Law Judge

Barbara Savitt Pearson
Administrative Law Judge

FN1. Added by Ch. 572 Section 11 of the Acts of 1985, effective January 1, 1986, by Bill Section 68, and amended by Ch. 662 of the Acts of 1986.

FN2. 452 C.M.R. 1.11(5) provides that: At a hearing, a party may offer as evidence medical reports prepared by no more than two (2) physicians engaged by said party together with a statement of said physicians' qualifications on forms prescribed by the department. The Administrative Judge shall admit such medical report as if the physician had so testified, provided that where specific facts are in controversy, the Administrative Judge shall, on a motion by a party, strike any part of such report that is not based on:
(a) the expert's direct personal knowledge;
(b) evidence already in the record; or
(c) evidence which the parties represent will be presented during the course of the hearing. Notwithstanding 452 C.M.R. 1.12(5), any party may by right, at his own expense, depose the physician who prepared an admitted medical report for the purpose of cross-examination. After such cross-examination, the parties may conduct further examination pursuant to the rules of evidence applied in the courts of the Commonwealth.

FN3. The Reviewing Board by the terms of § 11C is confined to the transcript of the hearing and the written decision of the Administrative Judge as it conducts its review. It is therefore extremely important that the parties are careful to note any and all objections on the record.

FN4. G.L. c. 233, § 79G.

FN5. G.L. c. 112, § 130 defines "Licensed independent clinical social worker," as an individual who is licensed by the board to practice independent clinical social work and who meets the qualifications set forth in section one hundred and thirty-one for an independent clinical social work. G.L. c. 112, § 130, also defines the terms, "The independent practice of clinical social work" and "Psychotherapy of a nonmedical nature."

FN6. Section 7 in its entirety reads as follows:
(1) Within fourteen days of receipt of the employer's notice of injury, the insurer shall either commence payment of weekly incapacity benefits under section thirty-four or thirty-five to the employee or shall notify the division of administration, the employer, and the employee by certified mail of its refusal to commence the payments and of its intent to contest a claim should the employee file a claim with the department. The notice shall specify the grounds and factual basis for the refusal to commence payment of such benefits and intention to contest, and shall state that in order to secure benefits the employee shall file a claim with the department within any time limits provided under this chapter. Any grounds and basis for non-compensability specified by the insurer shall be the sole basis of the insurer's defense on the issue of compensability in any subsequent proceeding, unless based upon newly discovered evidence.

(2) If an insurer fails to commence such payment or make such notification within fourteen days, it shall pay to the employee, a penalty in an amount equal to two times the average weekly wage in effect in the commonwealth at that time. Such penalty may be waived if the division of administration finds that the failure to comply with said fourteen day requirement was due to events not within the control of the insurer or its agents. No amount paid as a penalty under this section shall be included, in any formula utilized to establish premium rates for workers' compensation insurance. St. 1985 c. 572, § 18; St. 1986 c. 662, § 9.

FN7. 452 C.M.R. 1.02.

FN8. G.L. c. § 8(1) read as follows:
(1) An insurer who begins payments of benefits in a timely fashion may make such payments for a period of sixty calendar days from the commencement of disability without affecting its right to contest any issue arising under this chapter. An insurer may terminate or modify payments at any time within such sixty days period without penalty if such change is based on the actual income of the employee or if it gives the employee and the division of administration at least seven days' written notice of its intent to stop payments and contest any claim filed. The notice shall specify the grounds and factual basis for stopping payment of benefits and intention to contest and shall state that in order to secure benefits the employee shall file a claim with the department within any time limits provided by this chapter. Any grounds and basis for non- compensability specified by the insurer shall be the sole basis of the insurer's defense on the issue of compensability, unless based on newly discovered evidence. The insurer remains at all times obligated to pay all benefits due the employee under this chapter within fourteen days of knowledge from any source that such benefits are due.

FN9. We would expect that in the very occasional case where the employee appeared pro se the presiding Administrative Judge would take a more active part in surfacing the issues in the interest of fairness and equity.

FN10. § 11B is instructive with respect to decision writing. It provides in pertinent part that, ... "Decisions of members of the board (administrative judges) shall set forth the issues in controversy, the decision on each and a brief (emphasis ours) statement of the grounds for each such decision ..."

1988 WL 583189 (Mass.Dept.Ind.Acc.), 2 Mass. Workers' Comp. Rep. 304
END OF DOCUMENT




1988 WL 583189

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