Workers’ compensation – Causation – Conflicting medical opinions

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Where an administrative judge ordered a self-insurer to pay an employee section34 benefits, the case must be recommitted because of conflicting medical evidence.

“The self-insurer appeals from a hearing decision ordering it to pay the employee section34 benefits from October 23, 2015, and continuing, along with section30 medical treatment of low back and right-sided radiculopathy, including any diagnostic studies and/or work-up needed to determine if surgery remains appropriate. …

“The self-insurer takes issue with the judge’s section1(7A) analysis, arguing she committed a variety of errors in making her findings of fact and rulings of law. … First, the self-insurer argues the judge erred by adopting medical opinions that found the work accident was a major cause merely because the accident ‘triggered’ or ‘woke up’ a period of disability or increased pain, thereby rendering meaningless section1(7A)’s requirement that the work-injury remain ‘a major cause’ of disability or need for treatment. In particular, the self-insurer attacks the opinion of the section11A impartial medical examiner, Dr. Scott Harris. The self-insurer asserts that Dr. Harris’s opinions are not sufficient to meet the employee’s burden of proving that her injury remains a major cause of her disability and need for treatment, because the doctor described the employee’s injury as ‘the straw that broke the camel’s back,’ which it claims is insufficient to satisfy section1(7A). Also, it argues that particular opinion is inconsistent with Dr. Harris’s other opinion that the work-related accident is 20% responsible for her current condition. It concludes that the judge’s adoption of Dr. Harris’s opinions on section1(7A) is arbitrary and capricious. We disagree.

“The self-insurer misapplies our decision in Larkin v. Feeney Fence, 19 Mass. Workers’ Comp. Rep. 78 (2005), to support its claim that Dr. Harris’s opinions are legally insufficient to carry the employee’s burden under section1(7A). … The self-insurer fails to acknowledge that, in Larkin, the doctor provided no opinion sufficient to satisfy the employee’s burden of proving that the work-related accident ‘remains a major cause’ of the employee’s disability and need for treatment. …

“Nothing in Dr. Harris’s report or his deposition testimony indicates he misunderstood the concept of ‘a major cause’ or that his opinions used a lesser burden than required by the statutory language of section1(7A). Moreover, contrary to the self-insurer’s bald assertion, there is nothing inconsistent between Dr. Harris’s opinions on the issue of section1(7A) and his further opinion that the work-related accident remains 20% responsible for the employee’s current symptoms. …

“However, the self-insurer’s last argument has merit. It argues that Dr. [Sergery] Wortman’s opinions on causal relationship conflict with those of Drs. Harris and [George P.] Whitelaw, and, as a result, the judge erred in adopting all three doctors’ opinions and mischaracterizing them as being consistent with each other, when the opinions cannot be reconciled. We agree that the judge erred by doing so, and, as a result, we must vacate the decision and recommit for further findings of fact. …

“Dr. Wortman’s causal relationship opinions are not consistent with the opinions of Drs. Harris and Whitelaw, particularly with regard to lumbar spine degenerative disc disease and recommendation for surgery. … Nonetheless, the judge found, ‘I adopt the expert medical opinions of Dr. Harris, Dr. Whitelaw and Dr. Wortman, that the employee’s medical conditions with regard to her lower back and right-sided lumbar radiculopathy are causally related to the injury of October 22, 2015.’ … By ignoring and/or rejecting Dr. Wortman’s contradictory opinion concerning causation as it pertains to the employee’s degenerative changes to her lumbar spine and her need for surgery, which he rendered after he reviewed the employee’s medical records, and ‘by couching her findings in a manner that implies that all three physicians agree on the issue of causation, the judge mischaracterized the medical evidence.’ … Because the judge’s mischaracterization of the medical evidence on the issue of causation clearly factored into her decision, we cannot say that the error was harmless. …

“Accordingly, we vacate the judge’s decision and recommit the case so that she may resolve the conflicts in the evidence by making further findings of fact and rulings of law. …”

In Re: Peterson, Nancy A. (Lawyers Weekly No. 25-010-19) (11 pages) (Koziol, A.L.J.) Paul S. Danahy for the employee; Joseph Clark for the self-insurer at hearing; Arthur Jackson for the self-insurer at hearing and on appeal (Board No. 028369-15) (May 21, 2019).

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