McCARTHY, J.
Following a conference under § 10A in this contested claim an administrative judge entered an order directing payment of weekly incapacity benefits under § 34 and thereafter under § 35 from October 6, 1989 and continuing. The case came back to the same judge for hearing on the appeal of the insurer from this order. No appeal was taken by the employee.
After a hearing the judge decided that on May 3, 1989, the employee sustained an industrial injury arising out of and in the course of his employment and awarded weekly temporary total incapacity benefits under § 34 of the Act from August 21, 1989 to October 5, 1989 followed by weekly partial incapacity benefits under § 35 from October 6, 1989 to December 31, 1989. We have the case on appeal by the insurer.
At the outset of the hearing the judge set out the employee's claims and the defenses interposed by the insurer. She then noted that the insurer was the sole appellant and directed counsel for the insurer to call her first witness (Tr. 3). Responding to this direction counsel for the insurer suggested that ". . . it's the burden of the employee to put on his case initially" (Tr. 3). When the judge pointed out that it was the insurer's appeal, counsel for the insurer called the employee to testify. The judge then instructed the employee that he was an adverse or hostile witness and would be cross-examined by counsel for the insurer.
Notwithstanding the fact that the insurer was the sole appellant at the hearing, the burden of proving his case by the preponderance of the evidence remained with the employee. See Ginley's Case, 244 Mass. 346 (1923). See also Russell v. Red Star Express Lines, 8 Mass. Workers' Comp. Rep. 404 (1994); Courage v. General Electric, 7 Mass. Workers' Comp. Rep. 212 (1993). Directing the insurer to go forward with the production of evidence raises doubt as to whether the judge understood where the burden of proof rested.
If confusion as to the burden of proof were the only difficulty with the decision, a recommittal to the hearing judge would be the appropriate remedy. But there are additional problems. The employee's claim was for weekly incapacity benefits from August 25, 1989, and continuing. At the hearing the parties stipulated that "[a]n incident occurred at work on May 3, 1989" (Dec. p. 2). The judge found additional work injuries occurred on February 14, 1989 (pain in elbows, shoulders and back) and "two weeks later" when he "twisted his back while loading a trailer" (Dec. 3). She found that on August 21, 1989 he experienced neck and back pain and numbness while sitting at his desk. (Dec. 3-4) The judge notes the employee testified as to neck, shoulders and back complaints but makes no findings regarding whether they contribute to any incapacity for work and whether they bear any relationship to the claim for benefits from August 25, 1989 and continuing.
The judge found that the employee sustained an industrial injury arising out of and in the course of his employment on May 3, 1989 (Dec. p. 5). Adopting in part the opinion of Frank E. Salafia, the employee's treating chiropractor, including his consult with Dr. Paul Meyers (Dec. 4), the judge found that the employee was temporarily totally incapacitated from August 21, 1989 to October 5, 1989 and thereafter partially incapacitated until December 31, 1989.
The insurer argues that the judge's decision cannot stand because there is no expert medical testimony causally relating the incapacity found to exist by the judge to the May 3, 1989 injury at work. The expert medical testimony the judge adopted comes from the four reports of Dr. Salafia and two other chiropractors associated with his clinic. The employee offered in evidence the curriculum vitae of Dr. Frank E. Salafia and medical reports from his office dated August 1, 1990, December 20, 1989, October 20, 1989 and September 14, 1989. The insurer by letter dated November 27, 1990, objected to the offer of evidence, asking the judge pursuant to 452 CMR 1.11(6)(a) to strike portions of the report not based on the "experts [ sic] direct personal knowledge." A handwritten notation by the judge allowed the insurer's motion to strike the portions of the records delineated, including some references to the exam and opinion of Dr. Paul E. Meyers. The judge "rule[d] the employee's reports admissible" (Dec. 3) and adopted "[t]he opinion of Dr. Salafia, in part, including his consult with Dr. Meyers" (Dec. 4). We have some difficulty in determining whether the judge was admitting the employee's medical records in their entirety, or only those portions not excluded by the judge when she allowed the insurer's motion. The medical reports offered pertain to injuries sustained on February 14, 1989 and May 3, 1989. In his initial report prepared on September 14, 1989, Dr. Salafia noted the employee was treated for a back injury sustained at work on February 14, 1989, that he underwent right foot x-rays on May 10, 1989 and lumbar spine x-rays on August 23, 1989, and included a diagnosis of cervical sprain/strain with myalgia and lumbosacral sprain/strain with myalgia, which the doctor related to "[t]he accident as described by the patient." The second report, dated October 20, 1989, relates that the employee was treated for back injuries sustained at work on February 14, 1989 and includes the opinion that the employee "is unable to return to work due to the work-related injuries he received on February 14, 1989." In this report, Doctor Salafia also mentions that the employee injured his right foot in May 1989 and goes on to say that, "[t]his injury exasperated [ sic] his original back injury of February 14, 1989." This statement standing alone is an insufficient nexus between the incapacity found and the May 3, 1989 injury. There is no discussion of whether the exacerbation was transient or permanent. Beyond that, no effort is made to explain how a foot injury aggravated a spinal injury which occurred three months earlier. The third report is dated December 20, 1989, and is silent on the question of causal relationship, and the medical condition or injury date involved. The final report, dated August 1, 1990, relates cervical spine complaints to the February 14, 1989 work injury.
In the absence of expert medical testimony tying the finding of incapacity to the injury of May 3, 1989, the decision is wrong as a matter of law and we reverse it. The employee's claim for benefits as a result of the May 3, 1989 injury to his foot is denied. The denial is without prejudice to the employee's right to make claim seeking to establish entitlement to weekly indemnity benefits and the payments of medical expenses as a result of an injury on February 14, 1989.
Judges Fischel and Wilson concur.