COMMONWEALTH OF MASSACHUSETTS
DEPARTMETN OF INDUSTRIAL ACCIDENTS

Employee: Ella Shand
Employer: Lenox Hotel
Insurer: Eastern Casualty Insurance Co.
Board No.: 04788893

REVIEWING BOARD DECISION
(Judges Levine, Carroll & Maze-Rothstein)

APPEARANCES
William E. Howell, Esq., for the employee
Frank McNamara, Esq., for the insurer at hearing and first appeal
James R. O'Leary, Esq., for the insurer on appeal after recommital

LEVINE, J. This matter is before us for a second time. In Shand v. Lenox Hotel, 12 Mass. Workers' Comp. Rep. 365 (1998), we reversed the decision of the administrative judge and recommitted the case directing the judge to rule on the employee's motion to find the medical issues complex. Id. at 369. In his decision following recommital, the administrative judge found the medical issues not complex (Dec. II. 929) 1 and awarded ongoing § 34A permanent and total incapacity benefits. (Dec. II. 934-935.) The insurer appeals the administrative judge's latest decision. For the reasons that follow, we reverse the decision.

We set out only those facts necessary to this appeal. On October 29, 1993 the employee injured both knees when she fell at work. She subsequently underwent surgery on her left knee. She never returned to work. The insurer commenced weekly § 34 total temporary incapacity payments but subsequently filed a complaint to modify or discontinue those payments. The employee coincidentally filed a claim for § 34A benefits. Both the insurer's complaint and the employee's claim were denied at conference. The employee appealed to a de novo hearing. (Dec. I, 448-449.) 2

Pursuant to § 11A the employee was examined by Dr. Philip Salib. In his April 26, 1996 report, Dr. Salib diagnosed longstanding, pre-existing degenerative left knee changes, status post arthroscopic surgery for a medial menisectomy, debridement and excision of a loose body. Dr. Salib opined that the employee had been temporarily totally disabled from the day of her injury until after her surgery and partially disabled thereafter. He further opined that the meniscus tear was causally related to the work injury but that her current disability was causally related to her pre-existing degenerative changes rather than her work injury. The employee filed a motion to introduce additional medical evidence due to the complexity of the medical issues. She later added the ground that Dr. Salib's report and deposition were inadequate. In his first decision, the judge rejected the latter argument and never ruled on the complexity motion. Shand, supra at 366. Thus, Dr. Salib's report and deposition were the sole medical evidence in the case. In his first decision, the administrative judge rejected that portion of Dr. Salib's opinion causally relating between the employee's current disability solely to her pre-existing degenerative disease; instead, the judge, without any supporting expert medical evidence, found causal relationship between the industrial injury and the employee's disability and awarded total and permanent incapacity benefits. Id. at 367-368. The insurer appealed that decision and, because there was no expert medical opinion supporting the judge's action, the reviewing board reversed the decision and recommitted the case for the judge to rule on the employee's motion. Id. at 367-368.

As stated above, in his decision after recommital, the administrative judge specifically found the medical issues not complex. (Dec. II. 929.) He then went on to find the impartial examiners opinion inadequate on the issue of causal relationship of the employee's current disability because he found Dr. Salib's opinion not credible. (Dec. II. 931, 933.) As a result, the judge allowed the parties to submit additional medical evidence on the issue of causal relation, (Dec. II. 931). He then adopted the opinion of the employee's treating physician (Dec. II. 934) and awarded § 34A benefits. The insurer appeals this latest decision arguing that the judge's reason for rejecting Dr. Salib's causal relation opinion was arbitrary and contrary to law.

General Laws c. 152, § 11A(2) of the Act sets out the required contents of the impartial examiner's report, to wit, a determination of (i) whether or not a disbility exists, (ii) whether or not any such disability is total or partial and permanent or temporary in nature, and (iii) whether or not within a reasonable degree of medial certainty any such disability has as its major or predominent contributing cause a personal injury arising out of and in the course of the employee's employment. Section 11A(2) allows an administrative judge to "authorize the submission of additional medical testimony when such judge finds that said testimony is required due to the complexity of the medical issues involved or the inadequacy of the report submitted by the impartial medical examiner." While this language grants discretion to the administrative judge to reject the opinion of the impartial examiner, such discretion is not without bounds.

In Daly v. City of Boston School Dep't., 10 Mass. Workers' Comp. Rep. 256 (1996) we said that while the probative value of the expert testimony is for the judge to assess, uncontroverted medical evidence which is beyond the judge's common knowledge and experience cannot be rejected unless sound reasons for such rejection are stated in the decision. Id. at 257. In the present case, the administrative judge gave the following explanation for rejecting Dr. Salib's causal relation opinion:

". . . when I expressly rejected the impartial doctor's causation opinion in my original decision at pages 453-455, I found that opinion to be not credible. A not credible opinion is an inadequate opinion. Therefore, while expressly stating that the impartial doctor's report was adequate, I implicitly found the report to be inadequate by rejecting his causation opinion."

(Dec. 931.)

This reason for rejecting Dr. Salib's uncontradicted opinion, although expressed differently, is fundamentally the same unsound reason the judge gave for rejecting Dr. Salib's opinion, in the first decision. In Dec. I, the judge, without expert medical opinion in support, disagreed with the doctor's causal relationship opinion. In the present decision, the judge found Dr. Salib's opinion not credible on the basis that he disagreed with the doctor's causation opinion. (Dec. II 931.) Once again, simply to disagree with the only medical opinion which is otherwise without fault, is error. 3 The judge cannot reject the uncontradicted prima facie opinion of Dr. Salib on the basis that the judge disagrees with that opinion. "[W]ithout a rational basis for doing so," Paolini v. Interstate Uniform, 11 Mass. Workers' Comp. Rep. 322, 324 (1997), "the judge was not free to disregard the impartial's expert opinion. . . ." Id. Simas v. Modern Continental Obayashi, 12 Mass. Workers' Comp. Rep. 104, 109 (1999)(must be a rational basis to reject impartial's opinion on causation). Compare Monet v. Massachusetts Respiratory Hosp., 11 Mass. Workers' Comp. Rep. 555, 559 (1997)(a judge "could rationally determine that the impartial medical examiner's report was inadequate by the examiners' [sic] misunderstanding of the employee's history, or by a too cursory physical examination").

Because the judge's reason for disregarding the impartial examiner's opinion was arbitrary and capricious, the decision must be reversed and the employee's claim denied. General Laws c. 152. § 11C.

So ordered.

_____________________
Frederick E. Levine
Administrative Law Judge

_____________________
Martine Carroll
Administrative Law Judge

_____________________
Susan Maze-Rothstein
Administrative Law Judge

FEL/kai

FILED: June 2, 2000






1 The decision which was the subject of the first appeal is referred to as Dec. I. The decision issued after recommittal and is the subject of the present appeal is referred to as Dec. II.

2 At the hearing the only issues tried were the employee's claims for §§ 34 and 34A benefits. (Dec. I 447).

3 As we pointed out in our first decision, Dr. Salib maintained his opinion even with the knowledge of the facts that the judge thought ? a contrary opinion. Shand, supra at 368.