Tavares v. Aramark Corp.

841 A.2d 1124, 2004 WL 392934

• Court: Supreme Court of Rhode Island
• Decided: March 4, 2004
• Docket: 2002-160-M.P
• Status: Published

Opinions

OPINION

WILLIAMS, Chief Justice.

In this case we review a decree of the Appellate Division of the Workers’ Compensation Court (Appellate Division) affirming Dorene Tavares’s (plaintiff) petition to resume collecting weekly indemnity benefits based on incapacity related to her earlier injury. The defendant, Aramark Corporation (defendant), contends the Appellate Division’s decision was not supported by legally competent evidence. For the reasons indicated herein, we affirm the decree of the Appellate Division.

I

Facts and Travel

The plaintiff was employed as a food prep worker and cashier in a high school cafeteria. As cashier, one of plaintiffs responsibilities was to set up a table and position a cash register on top of the table. On October 29, 1996, plaintiff was positioning the table and register when the register, which weighed sixty to seventy pounds, started to fall off the table. As plaintiff leaned over to steady the register, she immediately felt a pull in her back. The plaintiffs injury was identified as a back sprain, and she began receiving treatment from Dr. Leslie Stern (Dr. Stern), a neurosurgeon, in mid-February 1997. On February 27, 1997, plaintiff left employment as a result of her injury. Pursuant to a Memorandum of Agreement dated September 4, 1997, plaintiff began receiving weekly benefits for partial incapacity. The plaintiffs benefits were terminated on May 14, 1998, when a pretrial order was entered in the Workers’ Compensation Court finding that plaintiffs period of incapacity had ended. Despite this finding, plaintiff did not return to work.

The plaintiffs pain worsened and she continued to receive treatment from Dr. Stern. Several Magnetic Resonance Imaging (MRI) tests indicated minor degenerative changes in plaintiffs back, and Dr. Stern prescribed physical therapy, medication, and a rigid back brace, all of which failed to end plaintiffs pain. After these unsuccessful attempts to cure plaintiff, Dr. Stern ordered several diagnostic tests. None of these tests, however, definitively diagnosed the cause of plaintiffs pain. Doctor Stern eventually became convinced that a discetomy would alleviate her pain; in his surgical report, Dr. Stern stated he found a herniated disc. In December 1999, plaintiff had an appointment, which was scheduled at defendant’s request, for an impartial examination with Dr. A. Louis Mariorenzi (Dr. Mariorenzi). The plaintiff failed to keep this appointment, and underwent surgery with Dr. Stern on February 7, 2000.

Several weeks after the surgery, plaintiffs pain returned. She then filed a petition to review her incapacity with the Workers’ Compensation Court. This time, however, plaintiff sought benefits for total rather than partial incapacity. During a bench trial with the Workers’ Compensation Court, Dr. Mariorenzi testified that the results of the diagnostic tests performed on plaintiff all were within normal limits, and did not indicate a need for surgery. Doctor Mariorenzi’s testimony conformed to Dr. Stern’s deposed testimony that the tests were within normal limits, and that he proceeded with the surgery in spite of these results.

The trial judge found that plaintiff suffered a recurrence of her incapacity resulting from her original workplace injury as a result of the surgery. The trial judge also found that the surgery was not necessary to cure, relieve or rehabilitate plaintiffs original injury, but that plaintiff agreed to undergo surgery in good faith reliance on the advice of Dr. Stern. Based on plaintiffs good faith reliance on Dr. Stern’s recommendation, the trial judge granted plaintiffs petition and awarded benefits for total incapacity from the date of surgery on February 7, 2000 and continuing, but denied plaintiff reimbursement for Dr. Stern’s services relating to the surgery. The defendant appealed to the Appellate Division, which affirmed the trial judge’s decision. This Court granted defendant’s petition for a writ of certiorari, and we now affirm the decree of the Appellate Division.

II

Standard of Review

It is well settled “that this Court’s review of a decree of the Appellate Division of the [Workers’ Compensation Court] is limited to a determination of whether that tribunal erred in deciding questions of law.” Poudrier v. Brown University, 763 A.2d 632, 635 (R.I.2000). “On certiorari, this Court does not weigh the evidence, but rather reviews the record to determine whether legally competent evidence supports the findings of the tribunal whose decision is under review, in this case, the Appellate Division.” Id. “If legally competent evidence exists in support of the factual findings of the Appellate Division, those findings are binding upon this [C]ourt, and the decree of the Appellate Division must be sustained.” Id. (quoting K-Mart v. Whitney, 710 A.2d 667, 668 (R.I.1998)).

III

Causal Relationship

To collect workers’ compensation benefits, an employee must demonstrate that an incapacitating injury is causally related to his or her job-related duties. See Lomba v. Providence Gravure, Inc., 465 A.2d 186, 188 (R.I.1983). In workers compensation cases, the standard to prove “causal relationship” is not the same as finding proximate cause in negligence actions. Mulcahey v. New England Newspapers, Inc., 488 A.2d 681, 684 (R.I.1985). The “causal relationship” standard is less exacting than what is required for proximate cause. Proximate • cause “is established by showing that but for the negligence of the tortfeasor, injury to the plaintiff would not have occurred.” Skaling v. Aetna Insurance Co., 742 A.2d 282, 288 (R.I.1999). Causal relationship, however, is established if the conditions and nature of the employment merely contribute to the injury. Mulcahey, 488 A.2d at 684.

To prove “a recurrence of incapacity claim based on a ‘return’ of a prior incapacity * * * [t]he employee must establish a relationship or a ‘nexus’ between his or her previous incapacity and the alleged recurrence.” LaFazia v. D. Moretti Sheet Metal Co., 692 A.2d 1206, 1210 (R.I.1997). To meet this burden, the employee must present “medical evidence testimony * * * that persuades the trial judge that the employee is once again incapacitated and that the incapacity is causally related to the earlier compensated injury * * Grant v. Leviton Manufacturing Co., 692 A.2d 685, 687-88 (R.I.1997). Alternatively, the “submission in good faith to a course of treatment prescribed by the doctor of [an injured employee’s] choice in the interest of curing or relieving a work-connected injury establishes any incapacity for work resulting from such course of treatment as causally related to the work-connected injury.” Perron v. ITT Wire and Cable Div., 103 R.I. 336, 343, 237 A.2d 555, 559 (1968).

The defendant asserts that the Appellate Division erred as a matter of law in concluding that the recurrence of plaintiffs incapacity after the surgery on February 7, 2000, was causally related to her compensable 1996 workplace injury. According to defendant, plaintiff is unable to establish the required causal relationship because her incapacity was found to have been the result of a surgery that was not necessary to correct her 1996 injury. The plaintiff counters that her submission in good faith to the surgery recommended by Dr. Stern establishes the necessary causation.

In Perron, this Court considered the significance of an employee’s reliance on his treating physician’s recommendation that he undergo surgery. Perron, 103 R.I. at 342-43, 237 A.2d at 559. The plaintiff in Perron became incapacitated after surgery for a work-related wrist injury. Id. at 341, 237 A.2d at 558. Although there was no serious dispute between the plaintiffs doctor and the defendant’s doctor over the “causal relationship between the [work-connected injury] and surgery,” each party’s doctor disputed “the course of treatment to be preferred in curing or relieving the work-connected” injury. Id. at 343, 237 A.2d at 559. The plaintiffs doctor recommended surgery, but the defendant’s doctor opined that a less drastic course of treatment would cure or relieve the plaintiffs injury. Id. at 342-43, 237 A.2d at 559. We held, however, that even if not absolutely necessary, the surgery did not sever the causal relationship between the plaintiffs post-surgery incapacity and his work-connected injury. Rather, the “submission in good faith to a course of treatment prescribed by the doctor of [an injured employee’s] choice in the interest of curing or relieving a work connected injury establishes any incapacity for work resulting from such course of treatment as causally related to the work-connected injury.” Id. at 343, 237 A.2d at 559.

We are of the opinion that Perron is controlling in this case. The Appellate Division affirmed the trial judge’s finding that plaintiff “suffered a recurrence of incapacity as of the time she went under the knife at the hand of Dr. Stem,” a and that the recurrence was causally related to plaintiff’s 1996 workplace injury. The Appellate Division also affirmed the trial judge’s finding that the surgery was not necessary to cure, relieve or rehabilitate plaintiff’s injury. As in Perron, however, plaintiff was found to have submitted in good faith to the advice of her treating doctor. Perron, 103 R.I. at 343, 237 A.2d at 559. Therefore, plaintiff is not required to establish the absolute necessity of the debilitating surgery. Instead, plaintiff can prove causal connection with evidence that she submitted “in good faith to a course of treatment prescribed by the doctor of [her] choice in the interest of curing or relieving a work-connected injury.” Id. Thus, as in Perron, plaintiff has demonstrated the requisite causal connection based on her good faith reliance on Dr. Stern. Upon a thorough review of the record, it is apparent that the Appellate Division’s finding about plaintiffs good faith reliance on Dr. Stern is fully supported by legally competent evidence. Consequently, that finding is binding on this Court. Poudrier, 763 A.2d at 635. We sustain the Appellate Division’s finding that a nexus exists between plaintiffs original injury and her post-surgery incapacity-

The defendant asserts that Perron does not allow the substitution of good faith reliance for affirmative medical evidence to establish a causal relationship. To support this argument, defendant asserts that the finding of a causal relationship in Perron depended in part on the existence of medical evidence, namely the testimony of the plaintiffs doctor, supporting such a relationship. In finding that a causal relationship existed, however, this Court did not rely on the medical evidence. Perron, 103 R.I. at 343, 237 A.2d at 559-60. Instead, this Court explicitly relied on the plaintiffs “submission in good faith to a course of treatment prescribed by the doctor of his choice.” Id. at 343, 237 A.2d at 559.

The defendant further contends that Dr. Stern did not hold a good faith belief that the surgery performed was necessary to treat plaintiff s work related injury. Thus, defendant argues that Dr. Stern’s supposed bad faith undermines the causal relationship between plaintiffs workplace injury and her incapacity after surgery. As in Perron, “[tjhere is not a scintilla of evidence that * * * [the] surgery * * * was not in good faith performed” by Dr. Stern to cure or relieve plaintiffs injury. Perron, 108 R.I. at 344, 237 A.2d at 560. Here, the Appellate Division noted that “the trial judge rejected the opinion of Dr. Stern that the surgery was necessary * * and found that Dr. Stern made an “error in judgment” in deciding to operate on plaintiff. This does not amount to a finding that Dr. Stern did not believe surgery would correct plaintiffs injury. However imprudent Dr. Stern’s decision to operate on plaintiff may have been, there is no evidence that Dr. Stern acted in bad faith.

The defendant also argues that, if this Court perceives a causal connection between plaintiffs workplace injury and her incapacity after surgery based only on plaintiffs good faith reliance on Dr.- Stern, then defendant essentially would become a “general insurer” of plaintiffs health. We disagree. Our holding merely promotes our recognition that the Workers’ Compensation Act “is designed to protect employees who have all types of beliefs and fears.” Guilmette v. Humble Oil & Refining Co., 114 R.I. 508, 513, 336 A.2d 553, 555 (1975). As the Appellate Division pointed out,

“[j]ust as an employee who reasonably refuses to undergo surgery due to fear of the risks involved * * * continues to receive compensation benefits, an employee who decides to undergo surgery recommended by her treating physician should be protected from the results of that surgery so long as it is intended to treat the effects of the original work-related injury.”

As a policy matter, a patient should not be held responsible for his or her treating physician’s errors in judgment. The plaintiff was entitled to rely on Dr. Stern’s judgment, and was not obliged to assess the quality of his medical decisions.

Furthermore, plaintiff may not rely on good-faith reliance with respect to anyone she chooses aside from her treating physician to establish a causal relationship. Instead, Perron clearly dictates that only plaintiffs good faith reliance on her treating physician, in this case, Dr. Stern, is sufficient to establish a causal relationship between a workplace injury and subsequent incapacity: Perron, 103 R.I. at 343, 237 A.2d at 559.

Additionally, defendant contends that, because the surgery was not medically necessary, plaintiffs incapacity after the surgery is not compensable. We disagree. The evidence clearly shows that plaintiffs workplace injury led to her surgery, which caused her total incapacity. We are satisfied that but for her workplace injury, plaintiff would not have undergone surgery. Consequently, plaintiffs incapacity after surgery is causally related to her original workplace injury regardless of whether the surgery was medically necessary. When a workplace injury is aggravated by surgical treatment, the aggravation is compensable as a consequence of the original workplace injury. Lisi v. Warren Oil Co., 601 A.2d 956, 959 (R.I.1992); Lomba, 465 A.2d at 188. By logical extension, so, too, is the recurrence of an earlier workplace injury.

IV

G.L.1956 § 28-33-84

General Laws 1956 § 28-33-34 provides: “The employee shall, after an injury, * * * if so requested by his or her employer, submit himself or herself to an examination by a physician * * * in cases where the employee has received compensation for a period of more than three (3) months.” Obviously, § 28-33-34 requires an employee to “submit to an examination by an employers physician if requested to do so.” DeMarco v. M.A. Gammino Construction Co., 492 A.2d 835, 837 (R.I.1985).

The defendant asserts that it was prejudiced because plaintiff failed to attend the impartial scheduled examination with Dr. Mariorenzi in December 1999. Thus, defendant asserts this Court should deny plaintiff benefits. In DeMarco, an employee failed to attend an examination scheduled at the request of his employer. DeMarco, 492 A.2d at 836. The point in the litigation at which the employer scheduled the examination, however, was such that the examination would not have produced “useful medical evidence in order for employer to be heard on a claim that it was prejudiced by employee’s failure to submit to an examination.” Id. at 837. Because the employer was not prejudiced by the employee’s failure to attend the examination, this Court refused to dismiss the employee’s petition for review. Id.

The plaintiff received benefits for more than three months, and, therefore, was required under § 28-33-34 to attend the examination with Dr. Mariorenzi. Just as the employer in DeMarco was not prejudiced by the employee’s missed examination, defendant here was not prejudiced by plaintiffs failure to keep her appointment with Dr. Mariorenzi. Based on a review of plaintiffs medical records, Dr. Mariorenzi offered his opinion at trial about the necessity of plaintiffs surgery. Even if Dr. Mariorenzi had examined plaintiff, he could not have stopped her from following Dr. Stern’s advice to undergo surgery. From defendant’s perspective, the most that could have been gained by such an examination was evidence to demonstrate that the surgery was not medically necessary. In the end, the trial judge accepted Dr. Mariorenzi’s opinion that the surgery was not medically necessary, and rejected Dr. Stern’s opinion to the contrary that it was. Thus, it is unlikely that defendant would have obtained additional useful medical evidence had plaintiff attended the examination.

V

G.L.1956 § 28-33-38

The defendant also argues that because plaintiff violated § 28-33-38 she should forfeit the benefits awarded to her by the trial judge. Section 28-33-38 provides: “If any employee refuses to submit himself or herself for any examination provided for in chapters 29 — 38 of this title * * * his or her rights to compensation shall be suspended and his or her compensation during that period of suspension may be forfeited.” (Emphasis added.) By using the term “may,” the General Assembly endowed the trial judge with discretion to decide whether an employee will forfeit benefits. The trial judge, therefore, acted within his discretion when he chose not to order plaintiff to forfeit her benefits, and, instead, assessed a “no show” fee against plaintiff and denied her reimbursement from defendant for the cost of her surgery. The plaintiff has failed to convince us that the Workers’ Compensation Court abused its discretion in failing to order forfeiture of plaintiffs benefits.

The trial judge, moreover, did not have the ability to suspend plaintiffs benefits. A suspension of benefits under § 28-33-38 would apply only “during the period” in which plaintiff refused to submit to the examination. See Saccoccio v. Kaiser Aluminum & Chemical Corp., 107 R.I. 53, 57, 264 A.2d 905, 907 (1970) (applying § 28-33-38 to suspend the plaintiffs benefits during the period of the plaintiffs refusal to attend an appointment with the employer’s physician). Because plaintiffs benefits were terminated after the pretrial order dated May 4, 1998, plaintiff was not receiving workers’ compensation during the December 1999 period of refusal. As a result, there were no benefits available for suspension under the statute.

VI

Total Incapacity

The defendant asserts that there is no competent medical evidence in the record to support the trial judge’s findings that plaintiff was totally incapacitated as a result of the surgery and that the Appellate Division, therefore, committed reversible error in affirming the award. It is well settled that the employee bears the burden of producing competent evidence to support her petition for benefits. Meketsy v. Roger Williams Foods, 526 A.2d 1276, 1277 (R.I.1987). When the employee seeks benefits for total incapacity, she bears the burden of demonstrating that “as a result of the injury, [she] is physically unable to earn any wages in any employment * * *.” Section 28 — 33—17(b)(2). The trial judge evaluates the testimony of any witnesses, and “may reject some or all of the witness’s testimony as being unworthy of belief. Such an evaluation is a finding of fact that, if supported by competent evidence, is binding.” Buonauito v. Ocean State Dairy Distributors, Inc., 509 A.2d 988, 991 (R.I.1986).

To support its argument, defendant notes that the only evidence of plaintiffs post-surgery capacity for work is Dr. Stern’s testimony. According to defendant, because the trial judge rejected Dr. Stern’s testimony on the medical need for plaintiffs surgery, the doctor’s testimony on plaintiffs incapacity after the surgery lacks credence and is otherwise unworthy of belief... See McAree v. Gerber Products Co., 115 R.I. 243, 256, 342 A.2d 608, 615 (1975) (stating that uncontroverted testimony is binding on the Workers’ Compensation Commission unless it contains inherent contradictions or lacks credence or is unworthy of belief).²

The trial judge was responsible for evaluating Dr. Stern’s testimony, and was entitled to either accept or reject the testimony in whole or in part. Buonauito, 509 A.2d at 991. Thus, the trial judge was permitted to reject Dr. Stern’s testimony about the medical need for the plaintiffs surgery, and to accept Dr. Stern’s testimony about the plaintiffs incapacity after the surgery. This “evaluation is a finding of fact, that, if supported by competent evidence, is binding.” Id. Upon a thorough review of the record, this Court finds that Dr. Stern’s testimony, as well as the plaintiffs testimony about her own incapacity, constitutes legally competent evidence sufficient to support the Appellate Division’s findings.

Conclusion

The decree of the Appellate Division awarding the plaintiff benefits for total incapacity commencing February 7, 2000, is affirmed. The papers in this ease shall be remanded to the Workers Compensation Court.

2 . Before 1990, disputes over workers’ compensation Benefits were heard and decided before the Workers’ Compensation Commission. In 1990, the Legislature created the Workers’ Compensation Court, replacing the Workers' Compensation Commission.