Hicks's Case, No. 03-P-1370.

• Court: Appeals Court of Massachusetts
• Writing for the Court: GRASSO, DREBEN, & SMITH, JJ
• Citation: 820 NE 2d 826,62 Mass. App. Ct. 755
• Parties: CAROLYN R. HICKS'S CASE.
• Docket Number: No. 03-P-1370.
• Decision Date: 18 January 2005

62 Mass. App. Ct. 755
820 NE 2d 826

CAROLYN R. HICKS'S CASE.

No. 03-P-1370.

Appeals Court of Massachusetts, Suffolk.

May 7, 2004.

January 18, 2005.

Present: GRASSO, DREBEN, & SMITH, JJ.

Paul M. Moretti (Richard P. Maloney with him) for the employer.

Dino M. Colucci, for the employee, was present but did not argue.

SMITH, J.

This is an appeal from a judgment entered by a single justice of this court affirming a decision of the Department of Industrial Accidents reviewing board (reviewing board),

62 Mass. App. Ct. 756

which in turn affirmed the decision of an administrative judge to admit in evidence certain medical opinion testimony, and reversed the decision of a second administrative judge who had concluded that the employee had failed to prove that her injury arose out of and in the course of her employment

Background. On October 15, 1996, the Boston Medical Center (BMC) offered free influenza vaccinations (flu shots) to its employees and the general public. On that date, fifty-four year old Carolyn R. Hicks (the employee), an electrocardiogram (EKG) technician employed by the BMC, went to the BMC lobby during her lunch hour and received a flu shot. The following day, the employee felt like she had sand in her eyes. She was seen at the Brigham and Women's Hospital on October 18, 1996, where she had a computed tomography (CT) scan and was told to return if she experienced more problems.

While dressing for work on October 22, 1996, the employee's vision began to fail and she returned to the Brigham and Women's Hospital where she was seen by an ophthalmologist. She was admitted to the hospital and remained there for the next three days while she received treatment consisting of large-dose Prednisone injections. While she was in the hospital, the employee was seen by a neurologist, Dr. Bluth, and a neuroophthalmologist, Dr. Iwamoto. During that admission, she was diagnosed as having optic neuritis.

Dr. Bluth and Dr. Iwamoto continued to treat the employee after she was discharged. Although the employee's vision initially improved, when her physicians later attempted to reduce the amount of Prednisone, her vision worsened and she was diagnosed as being legally blind. She never recovered her eyesight and has remained legally blind at all times relevant to this action.

Don Bienfang, a board certified ophthalmologist who specializes in neuroophthalmology (the body of medicine that deals with disorders of the brain that are reflected in either eye movement or abnormalities of vision) eventually began treating the employee for her vision problems. As of the date of the hearing, the employee continued to be treated by Dr. Bienfang. Dr. Bienfang eventually ruled out several possible illnesses, including

62 Mass. App. Ct. 757

multiple sclerosis, that could cause blindness. He concluded that the employee's blindness was precipitated by an autoimmune reaction to the flu shot she had received on October 15, 1996.¹

The employee filed a workers' compensation claim against the self-insurer, BMC, seeking temporary total incapacity and medical benefits, commencing October 16, 1996, and continuing, on the ground that the flu shot caused her optic neuritis, vision loss, and blindness. BMC denied the employee's claim, contesting liability, causal relationship, disability and the extent thereof, as well as denying entitlement to medical benefits. At conference, BMC was ordered to pay the employee's claim, and both parties appealed. The matter ultimately proceeded to a hearing before an administrative judge. See G. L. c. 152, § 11. In conjunction with that hearing, the employee was examined by an impartial medical examiner, James Lehrich, who is a neurologist. G. L. c. 152, § 11A(2).

Dr. Lehrich diagnosed the employee as having bilateral optic neuritis and myelopathy and opined that she was permanently disabled because of her blindness. However, Dr. Lehrich opined that the cause of the employee's neurological disease was uncertain but may have been caused by multiple sclerosis. He further opined that a causal relationship between optic neuritis and the flu shot had not been shown by scientific or epidemiological studies and that the onset of the employee's symptoms within two to three days after she received the flu shot was inconsistent with a "post-vaccination autoallergic central nervous system disease."

To refute the employee's claim that her disability was caused by the flu shot, BMC submitted the report of Carolyn Langer, a doctor board certified in occupational and environmental medicine. Dr. Langer agreed with the impartial physician's diagnosis and also concurred that the employee's loss of vision

62 Mass. App. Ct. 758

was not the direct result of, or causally connected to, the flu shot.²

BMC also submitted the report of Vincent Patalano, a board certified ophthalmologist, who examined the employee on November 3, 1997. Dr. Patalano's report stated that he did not have any of the employee's medical records available for review, and he suggested that a neurologic examination, specific laboratory work, and neuro imaging be done. The report also stated that if the employee reported that her vision loss became severe the day after the vaccination, then, based on the case report he reviewed, her optic nerve disease was not likely related to the vaccination.

In contrast, the employee's treating physician, Dr. Bienfang, opined that the employee has "an autoimmune induced central nervous system disease which is related to a vaccination exposure." Dr. Bienfang testified that he had considered all of the other known causes of optic neuritis and had excluded them, and that his opinion regarding causation had remained unchanged.

BMC moved to strike Dr. Bienfang's testimony, claiming that his medical opinion on the issue of causal relationship was not generally accepted in the relevant scientific community, and that the methodology used by Dr. Bienfang in arriving at his opinion in this case was unreliable. See Commonwealth v. Lanigan, 419 Mass. 15, 24-26 (1994). The administrative judge denied that motion and adopted Dr. Bienfang's testimony that the employee's optic neuritis was causally related to the flu shot.

The administrative judge also made a general finding that the employee's injury arose out of and in the course of her employment

62 Mass. App. Ct. 759

with BMC, and ordered BMC to pay the employee temporary total incapacity benefits through their exhaustion on October 15, 1999, followed immediately thereafter by payment of partial incapacity benefits at the maximum rate "to date and continuing." G. L. c. 152, §§ 34, 35. BMC appealed, arguing that the decision was contrary to law because (1) the administrative judge had abused her discretion in admitting the testimony of Dr. Bienfang, as his opinions lacked a reliable scientific foundation, and (2) the employee failed to prove that her injury arose out of her employment with BMC

On the first issue, the reviewing board concluded that the administrative judge had not abused her discretion in admitting Dr. Bienfang's testimony and affirmed that portion of her decision regarding the issue of causation. Hicks v. Boston Med. Center, 15 Mass. Workers' Comp. Rep. 1, 9 (2001). However, on the second issue, because the administrative judge had not made any subsidiary findings of fact regarding the relationship between the employee's work and the flu shot, the reviewing board recommitted the matter for further findings "on the question of whether, and if so, how the flu shot was for the mutual benefit of the employee and BMC." Id. at 5.

A second administrative judge³ denied the employee's claim, ruling that she had failed to prove that her injury arose out of and in the course of her employment because BMC did not derive any benefit from offering her the flu shot. The employee appealed, and the reviewing board reversed the decision and reinstated the original award, concluding that the employee's receipt of the flu shot was an incident of her employment and that it was also a benefit to BMC. Hicks v. Boston Med. Center, 16 Mass. Workers' Comp. Rep. 426, 428 (2002). BMC appealed to a single justice of this court, who affirmed the reviewing board's decision to reinstate the benefits awarded by the first administrative judge. See id. at 429.

BMC now seeks further review by a panel of this court, arguing that the first administrative judge abused her discretion in

62 Mass. App. Ct. 760

admitting the opinions of Dr. Bienfang and that in regard to the second administrative judge's decision, the reviewing board exceeded the scope of its authority and erred in concluding that BMC benefitted by offering the flu shot to its employees. We discuss each issue in turn

1. Admissibility of Dr. Bienfang's testimony. BMC argues that Dr. Bienfang's expert opinion on causation was inadmissible because (1) the theory that optic neuritis can be caused by a flu vaccination is not generally accepted in the scientific community and its reliability has not been shown by other means, and (2) the methodology used by Dr. Bienfang in determining that the employee's optic neuritis was caused by the flu shot was unreliable.

The judge serves as a gatekeeper on the admission of expert opinion testimony; a ruling on the admissibility of challenged testimony "entails a preliminary assessment of whether the reasoning or methodology underlying the testimony is scientifically valid and of whether that reasoning or methodology properly can be applied to the facts in issue." Commonwealth v. Lanigan, 419 Mass. at 26, quoting from Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 592-593 (1993).⁴ Recognizing the "inherently fact-intensive" nature of these determinations and the flexibility of the Lanigan analysis, we apply the abuse of discretion standard in reviewing the administrative judge's decision to admit Dr. Bienfang's opinion testimony. Canavan's Case, 432 Mass. 304, 312...