COMMONWEALTH OF MASSACHUSETTS
DEPARTMENT OF INDUSTRIAL ACCIDENTS

Employee: Eduardo Abad
Employer: Stacy's Pita Chips Co.
Insurer: MA Retail Merchants SIG
Board NO.: 012762-06

REVIEWING BOARD DECISION

(Judges Levine, Fabricant and Koziol)
The case was heard by Administrative Judge Bean.

APPEARANCES
Rickie T. Weiner, Esq., for the employee at hearing
James N. Ellis, Esq., for the employee on appeal
Ivonne C. Estevez Sarkinen, Esq., for the insurer at hearing
Paul M. Moretti, Esq., for the insurer on appeal

LEVINE , J. The insurer appeals from a hearing decision in which the administrative judge awarded the employee benefits for a "combination" injury governed by the § 1(7A) heightened causation standard of "a major but not necessarily predominant" cause. [1] The employee, who suffered from long-standing psychiatric impairments, claimed benefits for psychiatric sequelae to his work-related physical injury. See Cornetta's Case, 68 Mass. App. Ct. 107, 117-118 (2007)(mental sequelae to physical injuries, which combine with pre-existing non-compensable mental impairments, governed by the "a major" cause standard of § 1[7A]). Because the opinion of the § 11A impartial psychiatrist, as a matter of law, cannot satisfy the employee's burden of proving "a major" causation, we reverse the decision.

On May 4, 2006, the employee injured his back while working. Except for a brief period of "temp" work in the fall of 2006, he has not worked. (Dec. 335.) With respect to the back injury, pursuant to a prior 2008 hearing decision, the insurer paid a closed period of § 34 temporary total incapacity benefits followed by ongoing § 35 partial incapacity benefits. (Dec. 333-334.) While receiving § 35 benefits, the employee filed the present claim for § 34 benefits, alleging that a psychiatric disability resulted from his back pain. (Dec. 335.)

For many years prior to the subject work injury, the employee suffered from anxiety and depression related to a divorce and other domestic problems. He received treatment including psychiatric medications. He attempted suicide at least three times and, for six months in 1997, he was confined to a psychiatric hospital. He also has a history of illegal drug use. (Dec. 335-336.)

The employee alleged that the work injury aggravated his depression and anxiety. The only medical evidence was provided by the impartial psychiatrist, Dr. Lawrence Hartmann, who examined the employee, submitted a report and testified at deposition. Dr. Hartmann opined that the employee suffered from moderate to severe chronic depression, possible dependent personality disorder, chronic low back and left leg pain, diabetes and high blood pressure. (Dec. 336.) Regarding causal relationship, Dr. Hartmann found that the employee placed undue emphasis on the work injury as the cause for his mental illness. Dr. Hartmann testified that the work injury aggravated the employee's depression, which was caused mostly by pre-existing causes unrelated to work. (Dec. 336; Dep. 16.) Dr. Hartmann opined that the contribution of the work injury was possibly in the range of "twenty percent," which he further described as "less than major." Dr. Hartmann also characterized the work contribution as "some" or "somewhat"; that it did not cause the employee's mental status to be "major worse." (Dec. 337; Dep. 17-18, 26.) Dr. Hartmann reiterated that he was not willing to say the work injury was a major cause of the employee's depression, testifying instead that there were probably several major factors going into the employee's mental status, and that the work injury was "a somewhat contributory factor but much less than [the employee] himself is now claiming." (Dep. 51.)

The judge characterized Dr. Hartmann's testimony as meeting the § 1(7A) standard of "a major" causation. In essence, the judge concluded that because Dr. Hartmann's testimony included that the work may have contributed twenty percent to the employee's present psychiatric impairment, the work injury was "a major" cause. (Dec. 338.) The judge found the insurer liable for the employee's psychiatric condition and ordered the insurer to provide § 30 benefits for it. But the judge continued the employee on the same § 35 weekly benefits based on the same earning capacity as ordered in the 2008 decision. (Dec. 338-339.)

The insurer contends that the judge erred in interpreting the medical evidence to find that the work injury was "a major" cause of the employee's mental disability. We agree and reverse that aspect of the decision.

The dispositive feature of Dr. Hartmann's opinion was his specific exclusion of "a major" causation from his causal relationship opinion. Dr. Hartmann testified that the twenty percent of causal contribution attributable to the work injury was "less than major." He opined that, due to the work injury, the employee's mental problems "got somewhat worse. I wouldn't say major worse. I would say somewhat worse." (Dep. 18.) Dr. Hartmann maintained this opinion throughout his deposition. [2]

Where the adopted medical opinion, viewed as a whole, effectively rules out the subject industrial injury as "a major cause" in this § 1(7A) combination injury case, the use of the phrase "twenty percent" cannot change the result. [3] See Healey v. Tewksbury Hosp., 21 Mass. Workers' Comp. Rep. 87, 89 (2007)(impartial doctor's testimony that the work contribution was "a significant factor, but not a major factor" held insufficient to support compensability under § 1[7A]). See also Cruz v. Smith & Wesson, 24 Mass. Workers' Comp. Rep. 117, 121-122 (2010)(doctor's opinion that work was "not a major" cause clearly insufficient to support compensability under § 1[7A]). See Stewart's Case, 74 Mass. App. Ct. 919, 920 (2009)(§ 1[7A] combination injury cases need some indication of "the relative degree to which compensable and non compensable causes have brought about the employee's disability"). Contrast Lesoine v. Corcoran Mgt. Co., 22 Mass. Workers' Comp. Rep. 153, 159 (2008)(doctor misunderstood the legal meaning of "a major"; but his opinion that industrial accidents were forty percent of the cause satisfied "a major cause" standard).

Accordingly, the conclusion that the employee had satisfied his burden to show that the work injury was "a major" cause of his psychiatric impairment was contrary to law. We reverse so much of the decision that (1) awards § 30 benefits for the psychiatric condition and (2) awards an attorney fee therefor. The 2008 award of § 35 benefits is not affected.

So ordered.

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Frederick E. Levine
Administrative Law Judge
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Bernard W. Fabricant
Administrative Law Judge

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Catherine Watson Koziol
Administrative Law Judge

Filed: May 24, 2011





[1] General Laws c. 152, § 1(7A), provides, in pertinent part:



If a compensable injury or disease combines with a pre-existing condition, which resulted from an injury or disease not compensable under this chapter, to cause or prolong disability or a need for treatment, the resultant condition shall be compensable only to the extent such compensable injury or disease remains a major but not necessarily predominant cause of disability or need for treatment.

[2] There was no motion to allow additional medical evidence.

[3] This is not to say that in appropriate circumstances an opinion that a work related injury contributed twenty percent to the resultant condition could not satisfy the "a major cause" standard in § 1(7A).