Patterson v. Liberty Mutual Ins, P-956

• Decision Date: 07 June 1999
• Docket Number: P-956
• Citation: 48 Mass.App.Ct. 586,723 N.E.2d 1005
• Parties: (Mass.App.Ct. 2000) MARY KAY PATTERSON vs. LIBERTY MUTUAL INSURANCE COMPANY & another. <A HREF="#fr1-1" name="fn1-1">1 No.: 98- . Argued:
• Court: Appeals Court of Massachusetts

Page 1005

723 N.E.2d 1005 (Mass.App.Ct. 2000)

MARY KAY PATTERSON vs. LIBERTY MUTUAL INSURANCE COMPANY & another.¹

No.: 98-P-956

MASSACHUSETTS COURT OF APPEALS, Suffolk County.

Argued: June 7, 1999. Decided: February 18, 2000.

Present: Jacobs, Laurence, & Beck, JJ.

Workers' Compensation Act, Proximate cause, Expert opinion, Impartial medical examiner. Evidence, Expert opinion. Witness, Expert. Multiple Chemical Sensitivity.

Appeal from a decision of the Industrial Accident Reviewing Board.

Allen Whitestone (Clyde B. Kelton, Jr., with him) for the insurer.

Scott A. Smith for the employer.

Stephen H. Oleskey (Daniel W. Halston with him) for the employee.

Argued June 7, 1999.

LAURENCE, J.

In January, 1994, Mary Kay Patterson, an anesthesiologist at the Brigham and Women's Hospital (hospital), filed a claim with the Department of Industrial Accidents (DIA) for workers' compensation benefits against each of her putative employers, the hospital and the Brigham and Women's Hospital Anesthesia Foundation (foundation).² She alleged that she had developed disabling respiratory problems (chiefly asthma) and "hyper-allergic sensitivity to . . . skin" because of exposure to airborne toxic substances in the course of her employment at the hospital. An independent medical examiner appointed by a DIA administrative judge subsequently found that she suffered from "diffuse [or multiple] chemical sensitivity" syndrome (MCS). Following the proceedings described below, the DIA administrative judge awarded Patterson benefits for her medical expenses (plus costs and attorney's fees) apportioned between the two organizations.

After unsuccessful appeals to the reviewing board of the DIA (which summarily affirmed the judge's decision),³ the hospital (which is a self-insurer for workers' compensation purposes) and Liberty Mutual Insurance Company (the workers' compensation insurer for the foundation) here seek to reverse the judge's determinations.⁴ They contend that the judge committed two major reversible errors:⁵ Liberty faults the judge for concluding that Patterson was an employee of the foundation as defined in the workers' compensation statute.⁶ Both Liberty and the hospital (which conceded Patterson's claimed status as its employee) challenge the judge's adoption of an impartial medical examiner's opinion as to a causal relationship between Patterson's claimed medical problems and workplace conditions at the hospital.⁷ We conclude that the judge did err as asserted with respect to the causation issue and reverse the DIA decision on that ground.⁸

Factual summary.⁹ Patterson applied for appointment to the professional staff of the hospital in May, 1981. In June, 1981, she was offered a staff appointment as anesthesiologist, at a fixed salary, in the hospital's department of anesthesia. The offer came on hospital letterhead from the then-chairman of the hospital's department of anesthesia, who was also the ex officio president of the foundation (by virtue of a pro forma appointment by the hospital's board of trustees), but made no reference to the foundation. Each anesthesiologist appointed to the hospital staff by its board of trustees and to the Harvard Medical School faculty (as Patterson had already been while at the Massachusetts General Hospital) automatically became associated with the foundation. Patterson's duties involved three days a week of clinical service in the operating room anesthetizing hospital patients undergoing operations and instructing interns and residents in training there; two nonclinical days per week for research and "academic medicine"; and teaching duties at the Harvard Medical School. She neither admitted patients of her own to the hospital nor maintained a private office. Throughout the entire relevant period, Patterson received paychecks and benefits from both the hospital (approximately 16-20 per cent of her total remuneration) and the foundation (the remaining 80-84 per cent). The foundation was the contractually exclusive provider of anesthesia services for the hospital's patients, whom it directly billed for such services.

Until late 1992 Patterson experienced no significant health problems. At that time, she began to develop sensitivity to the latex gloves she wore in the operating room. Switching to nonlatex gloves and using skin ointment eliminated the problem. In March, 1993, however, she developed a cough in the operating room and later other respiratory symptoms (shortness of breath, wheezing, and asthma attacks) that abated when she ceased working at the hospital but intensified when she returned to work. Treatment from various specialists and efforts to create allergy-free environments lessened but did not extinguish her symptoms. By August, 1993, she could no longer work and over the remainder of 1993 began to have respiratory distress symptoms when exposed to an increasing number of extra-hospital agents and situations (e.g., books, fragrances, vehicle exhausts, dry cleaning, cosmetics, newspapers). Ultimately, she had to remake much of her home and restrict many activities in order to minimize such exposures.

After the hospital and the foundation rejected Patterson's workers' compensation claims, a conference before a DIA administrative judge ensued, pursuant to G. L. c. 152, 10A. At that conference, Patterson submitted her treating physicians' medical records, plus several engineering reports concerning environmental conditions at the hospital. The judge initially denied Patterson's claims for temporary total disability (under G. L. c. 152, 34), partial disability ( 35), and medical expenses ( 13 & 30). Patterson appealed for a de novo hearing pursuant to 10A(3) and 11 only as to her claims for medical expenses.¹⁰

A 11A impartial medical examination was thereafter ordered by the judge and performed by Dr. Christiani (IME), an internist specializing in occupational environmental medicine (which is not recognized as a certifiable specialty by the American Board of Medical Specialists). The IME had no personal knowledge of or experience in the hospital's operating rooms during the relevant period, nor any demonstrated expertise in the areas of toxicology, environmental engineering, or heating, ventilation, or air conditioning. The environmental reports submitted at the conference were transmitted by the judge to the IME, along with the medical records from Patterson's treating physicians.

After examining Patterson, the IME filed his report in July, 1994. He opined that (1) Patterson suffered from latex hypersensitivity; asthma "triggered by exposure to agents, including latex and, in particular, by re-entry into the operating room areas at the Brigham and Women's Hospital where latex antigen has been shown to be elevated (as expected) . . . [although] other agents may also be responsible for triggering her asthma"; perennial sinusitis and rhinitis; and "Diffuse Chemical Sensitivity, some of which is consistent with irritant and allergen induced asthma attacks"; and (2) "[Patterson's] exposures at the Brigham and Women's Hospital did causally contribute to the development and progression of her condition . . . [and s]he is unable to return to that hospital's operating room and to any other operating room, utilizing similar materials."

The judge then conducted three days of evidentiary hearings between August and early November, 1994, during which the IME's report (but no other medical evidence) was admitted in evidence.¹¹ An additional day of medical testimony was subsequently introduced in the form of the deposition of the IME, conducted on November 15, 1994. Motions by the hospital and Liberty to strike the IME's report and deposition testimony and the environmental/engineering reports which the IME had consulted were later denied by the judge,¹² who, in February, 1995, adopted the medical opinions of the IME regarding diagnosis and causation and determined that Patterson was concurrently employed by both the hospital and the foundation. As to the foundation's denial of Patterson's employee status, the judge found to the contrary, based upon the foundation's payment of salary and fringe benefits to Patterson, the identification of Patterson as an employee on W-2 forms and other tax documents, and a 1993 workers' compensation audit that identified the foundation as the policyholder and its affiliated anesthesiologists, including Patterson, as the insureds.¹³

Discussion. It is axiomatic that an employee has the burden of establishing, by a preponderance of the evidence, all the elements of her claim for workers' compensation benefits, including the fact of the requisite causal connection between her injury and workplace events or conditions; and that she cannot prevail if any critical element is left to surmise, conjecture or speculation or otherwise lacks evidential support. Sponatski's Case, 220 Mass. 526, 527-528 (1915). Ruschetti's Case, 299 Mass. 426, 431-432 (1938). See Phillips's Case, 41 Mass. App. Ct. 612, 618 (1996).

In particular, the expert medical opinion as to that causal relation which the employee must obtain in order to prevail (when the matter is, as here, beyond the common knowledge of the ordinary layperson) has to be expressed in terms of probability, not mere possibility. Sevigny's Case, 337 Mass. 747, 749-750 (1958). That opinion must further be based solely on the expert's "direct personal knowledge" or admissible evidence in the record and not on assumptions that are not established by such evidence. Commonwealth v. Roman, 414 Mass. 235, 238 (1993). See Haley's Case, 356 Mass. 678, 681-682 (1970); 452 Code Mass. Regs. 1.11(5) & (6) (1993). Cf. Department of Youth Servs. v. A Juvenile, 398 Mass. 516, 531 (1986) ("an expert [may] base an opinion on facts or data not in evidence if the facts or data are independently admissible"). If the DIA factfinder rests his ultimate conclusion as to causality on an expert's opinion which does not...