BATSON v. BETH ISRAEL HOSPITAL

McCARTHY, J.

When the employee left her job at Children's Hospital for the last time on January 25, 1991, she did so because of complaints of extreme pain in her elbows and hands that prevented her from performing her work as an admitting officer. Earlier that day, she had worked at her full-time job as a word processor at Beth Israel Hospital. The following findings of fact by the administrative judge in the decision on appeal are pertinent:

The employee is a 1970 graduate of Simmons College. She has a Bachelor of Arts degree majoring in early childhood development. The employee was a kindergarten teacher in the Boston school system from July 1971 to January 1984. The employee testified that she left that employment in the middle of the school year because of "teacher burnout." The employee began working at Children's Hospital as an admitting officer in December 1978. She typed patient information into the computer, did some manual writing and answered the telephone. In December 1987 she began working at Beth Israel Hospital as a word processor. The employee also used an adding machine and answered the telephone for Beth Israel Hospital. In 1989 she became a full time employee at Beth Israel Hospital and a part time employee at Children's Hospital. Between the two jobs, the employee worked seven days a week for about seventy hours per week. Her predominate activity for both employers was operating a keyboard.

The employee has a history of treatment for multiple joint stiffness, pain and swelling of the upper and lower extremities, including hands, wrists, elbows, shoulders, hips, knees, calves and feet, going back to the 1960's. Because of these symptoms, she was diagnosed with rheumatoid arthritis and suspected of having other immunological disorders. In addition, the employee had "some thyroid problems" that could cause a syndrome of pain and stiffness and costal chondritis, an inflammation of where the ribs join the cartilage at the center of the chest.

In July 1988 the employee was diagnosed with "mild" carpal tunnel syndrome. Despite that diagnosis and recurrent flareups of pain in her elbows and hands, she continued to work both her jobs at Children's Hospital and Beth Israel Hospital. After completing her full time work at Beth Israel Hospital, she would go to her part time work at Children's Hospital. She carried on a seven day work week, working about seventy hours per week, until January 25, 1991. On that day she worked in the morning at Beth Israel Hospital, left work early to go to a doctor's appointment where she received cortisone injections in both elbows and then went to her job a [sic] Children's Hospital. According to her, she felt extreme pain in her elbows and hands. She left work and has not been employed since. The employee testified that she has such severe pain that she is unable to work.

(Dec. 4-5)

Some time after leaving work for the last time, the employee filed claim for temporary total incapacity benefits against both insurers, and an open-ended order of payment of § 34 benefits issued against Arrow Mutual Liability Insurance Co. (Arrow), insurer for Beth Israel. Both the employee and Arrow appealed the conference order and asserted their right to a hearing de novo.

After a full evidentiary hearing, the judge denied and dismissed the employee's claim, finding her condition unrelated to her employment at either Beth Israel or Children's, or both. The judge further found that the employee voluntarily assumed the risk of injury by subjecting herself to the "physical stress and strain" of working at two jobs concurrently seven days per week after having been diagnosed with mild carpal tunnel syndrome in 1988 while working for both employers. (Dec. 10.) The judge expressly rejected the successive insurer liability rule as inapplicable to the case.

The employee raises four issues on appeal, arguing that (1) sufficient evidence was presented to find one or the other insurance carrier liable; and that the judge erred in (2) failing to apply the successive insurer rule; (3) applying the assumption of risk theory; and (4) adopting the opinion of Dr. Dorin on the issue of causal relation. The employee also argues that the case presents a novel issue of law requiring a judicial remedy on the issue of liability. While this case involves an unusual situation of repetitive motion injury and concurrent employment, it is not so unusual that it cannot be resolved within the bounds of existing law.

In order to be compensable under the Act the claimed injury must arise out of and in the course of the claimant's employment. G.L.c. 152, § 26. Interpretation of § 26 is aided by Zerofski's Case, 385 Mass. 590 (1982). See also Adams v. Contributory Retirement Appeal Bd., 414 Mass. 360 (1993). "To be compensable, the harm must arise from a specific incident or series of incidents at work, or from an identifiable condition that is not common and necessary to all or a great many occupations. The injury need not be unique to the trade and need not, of course, result from the fault of the employer. But it must, in the sense we have described, be identified with the employment." Zerofski's Case, Id. at 594-595. Here the administrative judge found that

the employee suffers from an overwhelming rheumatologic condition that is unrelated to her employment at either Beth Israel Hospital or Children's Hospital or the combination of both. The overuse caused by her choice to work for both employers at the same time aggravated her underlying condition and caused mild carpal tunnel symptoms in 1988. Her grueling work regime aggravated her underlying condition and the carpal tunnel symptoms so that she was unable to work from January 25, 1991 to April 23, 1992, the date of Dr. Dorin's examination, after which any disability was not causally related to her employment.

(Dec. 8; emphasis added)

If the judge found that the employee's work aggravated her underlying condition, then the employee sustained an industrial injury. An aggravation of a preexisting condition to the point of incapacity is a compensable injury. See Smick v. South Central Mass. Rehabilitative Resources, Inc., 7 Mass. Workers' Comp. Rep. 84 (1993). The judge found that

The overuse caused by her choice to work for both employers at the same time aggravated her underlying condition and caused mild carpal tunnel symptoms in 1988. Her grueling work regime aggravated her underlying condition and the carpal tunnel symptoms so that she was unable to work from January 25, 1991, to April 23, 1992, the date of Dr. Dorin's examination, after which any disability was not causally related to her employment.

(Dec. 8.)

This finding is difficult to align with the opinions of Drs. Dorin and Leslie whom she specifically adopted. Dr. Dorin, after his April 23, 1992 examination, noted that he could not find any definite abnormality and opined that because of her subjective complaints of pain that she could work in a sedentary job that did not overuse her hands or upper extremities. (Dec. 8.) Dr. Leslie, who examined the employee on August 3, 1992, found diffuse pain symptomatology that suggested an "overwhelming rheumatologic condition" that is unrelated to her original job description. (Dec. 7.) If there was in fact a break in the chain of causation on the examination date, as the judge's former finding implies, the record provides no clue. Because these findings seem inconsistent, we set them aside.

We turn next to the administrative judge's finding that "the employee voluntarily incurred a risk not contemplated by her employment," (Dec. 10), an application of the assumption of risk principle. There is no place in the workers' compensation system for that theory. It is a tort concept which has been abolished by statute, M.G.L.c. 231, § 85. In applying the assumption of the risk theory the administrative judge mistakenly relied on Mailloux' Case, 328 Mass. 342 (1957), which found that an injury does not arise out of the employment when it results from the assumption of a risk not incidental to or connected with such employment. Id., at 594 (emphasis ours). Such reliance is unwarranted since Batson's injury arose from the core duty of each of her jobs. In addition, the Mailloux' injury was the result of a practical joke gone awry, a situation clearly distinguishable from Batson's. To deny benefits to an employee who works more than one job and/or seven days a week, of necessity or otherwise, is antithetical to the purpose of the Act and demeaning to the work ethic itself.

If the "grueling work regime" aggravated the employee's carpal tunnel syndrome, then the judge cannot place the onus on the employee by finding it was "her choice" to work as many hours as she did. The risk is on the employer or employers, who took the employee "as is," as contemplated by the Act.

We find repetitive motion injuries are amenable to the successive insurer liability rule even in the case of concurrent employment. Under that rule, where there are two successive insurers it is for the judge to determine the insurer on the risk at the time of the most recent injury bearing causal relation to the employee's incapacity. See Evans's Case, 299 Mass. 435 (1938). In the case of an employee holding concurrent jobs involving repetitive motion tasks, the insurers are successive in the sense that each time the employee leaves one job to proceed to the next, the next insurer succeeds the previous insurer on the risk in an unending cycle until the employee can no longer work and the insurer covering the risk at the time is assigned it. Further, in a concurrent employment situation involving repetitive motion work where an employee with an occupational disease such as carpal tunnel syndrome is, in effect, making her condition worse with each succeeding shift at work, the only proper method of assignment of risk is the application of the successive insurer liability rule.

Aside from § 26B which is inapplicable to these facts there has never been apportioning of risk between carriers under chapter 152. Donahue's Case, 290 Mass. 239 (1939). We find that the administrative judge should have applied the successive insurer rule in this case. If the last hours worked at Children's Hospital bear causal relationship, however slight, to the employee's incapacity, Children's must pay any c. 152 benefits to which the employee is found entitled.

We hereby recommit the case to the Administrative Judge to make findings consistent with this decision. In light of the passage of time while awaiting the outcome of this appeal, if either party alleges a change in medical condition or incapacity since the date the record closed or the judge finds that justice so requires, additional evidence may be taken prior to the entry of the new decision.

So ordered.

Judges Wilson and Fischel concur.