COMMONWEALTH OF MASSACHUSETTS
DEPARTMENT OF INDUSTRIAL ACCIDENTS

Employee: Lawrence M. Driscoll
Employer: Town of Brookline DPW
Self-insurer: Town of Brookline
Board No.: 054911-00

REVIEWING BOARD DECISION
(Judges Fabricant, McCarthy and Costigan)

APPEARANCES
Richard Heavey, Esq., for the employee
Peter P. Harney, Esq., for the self-insurer at hearing and on brief
Holly B. Anderson, Esq., for the self-insurer on brief

FABRICANT, J. The self-insurer appeals from a decision in which the administrative judge awarded the employee ongoing partial incapacity benefits for an accepted injury to his left upper extremity on August 15, 2000. [1] We agree that the decision fails to appropriately address the relevant medical issues raised. We therefore reverse the decision and recommit the case for a new decision consistent with this opinion.

The employee sustained an injury to his left hand [2] when he struck a rock while shoveling on August 15, 2000. He was subsequently diagnosed with left carpal tunnel syndrome, restricting him from heavy labor duties. (Dec. 4.) The employee underwent a left carpal tunnel release and left trigger thumb release in March 2001, and later had right carpal tunnel surgery as well as a right trigger thumb release in October 2001, [3]surgeries for which the self-insurer paid. The employee subsequently went back to work, but in compliance with his medical restrictions, he did not use vibrating tools. (Dec. 5.)

In February 2002, the employee experienced pain in his right elbow and underwent right ulnar nerve transplantation surgery with multiple right trigger fingers release in August 2002. He then returned to work in December 2002, but stopped working for the employer in April 2003. Surgical repair of the right lateral epicondyle was performed in January 2004, and by March 2005, the employee was released to return to modified duty, although the employer was unable to accommodate his restrictions. (Dec. 5-6.)

The employee filed a claim for § 34A benefits beginning on October 15, 2004. Following a § 10A conference, the § 34A claim was denied but § 35 partial incapacity benefits were ordered. The employee appealed and submitted to an impartial medical examination on December 22, 2005. (Dec. 2, 6.) The impartial physician opined that the employee's left upper extremity symptoms were probably not related to his work with the employer, due to the gap between the employee's termination of work and the onset of left extremity symptoms. The doctor asserted that following treatment for the left cubital tunnel syndrome and left lateral epicondylitis, the employee would be able to return to work, with a restriction against the use of vibration tools. (Dec. 7-8.) Upon viewing surveillance video presented by the self insurer, however, the impartial physician opined that the employee did not have a disabling orthopedic problem. (Dec. 9.)

The judge concluded that the employee had residual symptoms "from the accepted conditions, and these limit the employment opportunities for a person with limited education and training." (Dec. 10.) But while the judge found that the employee was partially incapacitated and that his need for medical treatment for his left cubital tunnel syndrome was causally related to his work injury, he also concluded that the self-insurer was not liable for that treatment. [4] (Dec. 11.)

These contradictory conclusions provide no definitive indication as to the judge's intentions in this decision. The impartial physician says different things at different times about causal relationship, with a measure of skepticism emerging as he was informed at his deposition of the time lag between the employee's final day working and the onset of his left upper extremity symptoms. (Dec. 7; Dep. 59-60.) Moreover, it would appear that the doctor's opinion on the only current conditions alleged to be disabling, the left cubital tunnel syndrome and lateral epicondylitis, was put into question with his viewing of the surveillance tape. (Dec. 9; Dep. 14.) It is the judge's duty to craft a decision supported by a rational interpretation of the evidence. This decision does not accomplish that.

The overall problem is the contradictory and confused handling of the admittedly muddled impartial medical evidence. We cannot reconcile the judge's finding that the impartial physician "does not relate the present [left extremity] symptoms to any work activity performed by the employee for [the employer]," (Dec. 10), with his award of partial incapacity benefits for the employee's "residual symptoms from the accepted conditions." (Dec. 10-11.) Without a medical opinion supporting some measure of causally related disability, the judge would have nothing upon which to base any order of benefits. See Mahoney v. Boston Police Dept., 18 Mass. Workers' Comp. Rep. 127, 128-129 (2004), and cases cited. However, given the confused matrix of diagnoses, the evanescent medical opinions on both causal relationship and disability, and inconsistent subsidiary findings, we simply do not know what the judge is even addressing. [5]

The decision cannot stand. We reverse the decision, vacate the award of benefits, and recommit the case for a new decision addressing the medical issues with sufficient clarity to ensure proper appellate review. Montleon v. Massachusetts D.P.W., 16 Mass. Workers' Comp. Rep. 354, 361 (2002). Upon motion of either party, or on his own initiative, the judge may consider the admission of additional medical evidence due to the inadequacy of the impartial medical opinion or the complexity of the medical issues, pursuant to § 11A(2), if he considers that justice would be served thereby.

So ordered.

______________________________
Bernard W. Fabricant
Administrative Law Judge

_____________________________
William A. McCarthy
Administrative Law Judge

______________________________
Patricia A. Costigan
Administrative Law Judge

Filed: October 15, 2008






[1] The decision erroneously states that the incident occurred on October 15, 2000.

[2] The judge erroneously found that it was the employee's right hand that was injured in this incident. The parties are in agreement that it was the left.

[3] The judge found these surgeries were performed on August 2, 2001, (Dec. 5), but the parties agree they took place in October 2001. (Employee br. 3, Self-ins. br. 5.)

[4] The judge made the following contradictory statements regarding causal relationship:

[T]he employee is seeking medical treatment for left cubital tunnel syndrome[.] I find the need for treatment is causally related to his employment for the employer, based on the opinion of Dr. Skoff. (Dec. 11)

. .

Considering the opinion of the impartial physician [Dr. Skoff] that there is no causal relationship between the employee's work activities and the present need for cubital tunnel syndrome surgery, the insurer [sic] is not liable for that treatment. (Dec. 11)

[5] The decision would also be better served, if the theory of the employee's case were adequately addressed. The self-insurer's argument to the contrary notwithstanding, it seems clear that the employee is alleging a cumulative injury here, rather than the single traumatic event on August 15, 2000. However, the decision is silent on this issue.