No. 00643595 (1999). EMPLOYEE: Paul W. Gomes.

• Case Date: May 06, 1999
• Court: Massachusetts

Massachusetts Workers Compensation 1999. No. 00643595 (1999). EMPLOYEE: Paul W. Gomes COMMONWEALTH OF MASSACHUSETTS DEPARTMENT OF INDUSTRIAL ACCIDENTS EMPLOYEE: Paul W. Gomes EMPLOYER: Bristol County House of Correction SELF-INSURER: County of Bristol BOARD NO. 00643595REVIEWING BOARD DECISION (Judges Maze-Rothstein, Levine and Carroll)APPEARANCES Deborah G. Kohl, Esq., for the employee Robert M. Novack, Esq., for the self-insurer MAZE-ROTHSTEIN, J. The self-insurer appeals from a decision finding it liable for a second period of incapacity following the employee's injury as he stepped out of his vehicle while not at work. The self-insurer argues that there was no medical opinion establishing causal relationship between the employee's initial industrial injury and his second period of medical disability. We agree, and therefore reverse the decision. Paul Gomes had been a correctional officer for 25 years at the Bristol County House of Correction when, on February 3, 1995, he injured his right knee in an attempt to cut down and carry away an inmate who was trying to hang himself. (Dec. 3.) In April of 1995, he had right knee surgery, involving loss of some of the meniscus. 1 Id. He returned to full duty on June 12, 1995. 2 (Dec. 2.) The self-insurer accepted liability for this injury. Id. Following his surgery and return to work, the employee felt a lot better and he therefore stopped treating. (Dec. 4.) However, he continued to feel "twitching and buckling" in his knee, though it did not cause him to fall down. Id. He also experienced intermittent "aching," for which he used over-the-counter medication. Id. Although he never went to the doctor after his return to work, he could not perform all of his normal activities. Id. On June 15, 1997, approximately two years after his return to work, the employee pulled up to his house, got out of his truck and experienced right knee pain. He limped into his house. (Dec. 3, 5; Tr. 14.) He sought treatment a few days later, and underwent a second right knee surgery in August 1997. (Dec. 3, 4, 6.) Mr. Gomes filed a claim for § 34 temporary total incapacity benefits from June 15, 1997 to November 7, 1997, (Employee Ex. 1), which was denied at conference. (Dec. 2.) A hearing de novo was held on April 8, 1998. The only medical evidence consisted of the report and deposition testimony of the G. L. c. 152, § 11A 3 medical examiner, Dr. VonErtfelda. (Dec. 1, 5.) The doctor opined that the 1995 injury resulted in a medial meniscus tear, which was partially removed in surgery. (Joint Ex. 1; Dep. 6, 9-10.) The 1997 incident resulted in another tear of the medial meniscus, but in a different location, (Joint Ex. 1; Dep. 27); it also caused an anterior cruciate ligament tear, which had been intact at the time of the work injury. (Joint Ex. 1, 2; Dep. 22.) The § 11A physician stated that he could not say with any degree of medical certainty that there was a relationship between the employee's work injury of 1995 and his post-June 1997 medical disability. (Joint Ex. 1, 2; Dep. 14-16, 17-18, 31-32.) Instead, he attributed the employee's present symptoms to degenerative changes in the knee, which had been present at the time of the first injury. (Joint Ex. 1, 2; Dep. 7, 17, 18.) The judge credited the employee's...