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In re Cheril Young's Case8/31/2005
stick was a medical question requiring the expertise of a physician familiar with the transmission of Hepatitis C in such a setting. It was not for the administrative judge to substitute his own view on the issue. See Lorden's Case, 48 Mass. App. Ct. 274, 280 (1999) (administrative judge may not rely "upon his own knowledge of medical matters in order to form his judgment"). See generally O'Brien's Case, 424 Mass. 16, 23 (1996) (IME's position is analogous to that of a master or arbitrator with respect to prescribed medical issues). Compare Scheffler's Case, 419 Mass. at 259 (no error where the administrative judge treated as prima facie evidence the IME's opinion that "a fall at work had aggravated a degenerative condition of [the employee's] lower back," but not the IME's unsupported opinion on the employee's ability to be "gainfully employed in his usual occupation").
Here, the IME's opinion was squarely within his expertise and was based upon an adequate factual foundation. It was informed by his personal experience working in emergency rooms, his knowledge of protocols used in emergency rooms with respect to the disposal of needles and sharps, his experience that it is common for protocols to be disregarded in the moment of an acute emergency, his familiarity with a study involving surgeons who suffered injuries from sharps without being aware of it, and his understanding that the employee's job put her in contact with potentially contaminated instruments. Thus, this case is significantly different from Patterson, where the IME opined on a technical, non-medical issue (air quality) that was specific to the employee's workplace. When engineering reports upon which he relied were struck as inadmissible, there was no foundation for his opinion that the employee was exposed to asthma-inducing agents at work. 48 Mass. App. Ct. at 595-597.
This case also is distinguishable from Smith v. Bell Atlantic, 63 Mass. App. Ct. 702, 718-720 (2005), where we held that a trial judge did not abuse her discretion in finding that the opinion of the plaintiff's medical expert was unreliable. In Smith, the judge reasonably could conclude that the expert knew too little about the plaintiff's life to be able reliably to opine that the defendant's failure to accommodate, as opposed to other factors, was the major contributing cause of the plaintiff's worsening post polio syndrome. For example, the expert was unaware of the plaintiff's activities during lengthy periods when she was out of work. Thus, the expert was not in a position to rule out other potential causes of the plaintiff's decline. Here, on the other hand, the IME was personally familiar with a risk common to hospitals, knew that the employee's job put her in contact with sharps, and, based on the employee's history, was able to rule out other risks of infection. The IME's opinion was not incompetent for lack of more detailed, particularized knowledge of the employee's workplace and duties.
Like the single justice, we see no merit in the employer's contention that the IME's differential diagnosis was unsound. Fairly read, the IME's testimony about unknown causes of transmission did not establish that there are common methods of transmission of Hepatitis C of which the medical community is unaware. Moreover, in performing a differential diagnosis " he requirement that experts rule out other plausible causes does not require them to exhaustively exclude every other possible cause." 2 Faigman, Kaye, Saks, & Sanders, Modern Scientific Evidence § 20-1.4.1, at 39 (2d ed. Supp. 2003). See G. L. c. 152, § 11A(2) (IME to determine, inter alia, "whether or not within a reasonable degree of medical certainty [the employee's disability] has as its maj
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