Opinion
BOARD No. 080289-90
Filed: November 21, 1995
REVIEWING BOARD DECISION
(Judges Smith, Kirby Maze-Rothstein)
Steven I. Dean, Esquire, for the employee.
Kevin J. Flannery, Esquire, for the insurer.
The employee appeals from the denial of his claim for § 35 partial incapacity benefits. Because the decision contains inconsistent findings on incapacity, we are unable to properly perform our appellate function. We therefore remand for further findings of fact pursuant to G.L.c. 152, § 11C.
The employee, James Lin Dawson, a tight-end for the New England Patriots Football Team ("Patriots"), injured his left ankle and left lower leg during a football game on September 23, 1990. His average weekly wage at the time of the injury was stipulated to be $5,400.00, a yearly salary of $281,556. (Dec. 5.) He underwent medical treatment and extensive rehabilitation until December 3, 1990 when the Patriots terminated his employment. (Dec. 8.) Dawson tried out with the Detroit Lions Football Team in June 1991, but was eventually cut from that team in August 1991 before the start of the regular season. The employee has not worked as a professional football player since that time. However, on October 1, 1991 he obtained new employment at the Northeastern Center for the Study of Sports and Society paying $875 per week, $42,000 per year.(Dec. 6; Tr. 6.)
According to the NFL Player Contract admitted as Employee Ex. 1, Dawson was entitled to an annual salary of $390,000 for the year February 1, 1990 to February 1, 1991.
Travelers, insurer for the Patriots, accepted liability for the September 23, 1990 injury. The parties stipulated that if Dawson were awarded compensation, he would be eligible for payments only from January 1, 1991 onward. Dawson's claim was denied at conference and again after hearing. It is this denial that is the subject of the employee's appeal.
We render no interpretation of G.L. § 1(4)(b) as the parties stipulated that the only issue was the timing and extent of compensation. The coverage issue was not presented for appellate review.
Dawson had originally sought § 35 partial incapacity compensation from December 10, 1990 and continuing.
In her decision denying weekly wage replacement benefits, the judge adopted the medical opinion of Dr. Collon that the employee was ". . . fully capable of playing professional football upon his signing of the NFL Player contract . . . in June, 1991; and on (sic) upon his release from the Detroit Lions in August, 1991." (Dec. 17.) However, the judge also adopted Dr. Shalvoy's opinion that the amount of the employee's disability make it "impossible" for the claimant to continue as an active member of a professional football team, finding Dr. Shalvoy's testimony "credible" and "convincing." (Dec. 14.)
The judge found "that the employee has a partial disability as a tight end in the NFL . . ." and that "the employee's pain and limited motion in his ankle will influence his ability to run as well as push off using his left ankle and are likely to affect his ability to play at his previous level." (Dec. 18.) Nevertheless, the judge concluded that the partial impairment "does not prevent him from continuing as a tight end in the NFL" or from earning "his average weekly wage for work in the NFL and/or the general labor market combined". (Dec. 18.)
We agree with the employee's contention that the judge's findings of fact are internally inconsistent. We are unable to determine from this decision on what basis the judge denied the employee's claim. We therefore cannot accomplish our task under c. 152, § 11C to determine with reasonable certainty whether correct rules of law have been applied to facts that could properly be found. See Praetz v. Factory Mut. Eng'g Research, 7 Mass. Workers Comp. Rep. 45 (1993). Absent clear and consistent findings on pivotal issues, recommittal is warranted. Gendreau v. D.F. Pray, 9 Mass. Workers' Comp. Rep. ___ (June 12, 1995).
The sole issue before the judge was the nature and extent of incapacity on and after January 1, 1991. On remand, the judge should define which work limitations caused by the injury continued to exist on January 1, 1991. Then the judge must determine the economic impact of those physical limitations.
As the court said in Scheffler's Case, 419 Mass. 251, 256 medical evaluation of the employee's physical impairment. Physical handicaps have a different impact on earning capacity in different individuals. Education, training, age, and experience affect the ability to cope with the physical effects of injury. The nature of the job, seniority status, attitudes of personnel managers and insurance companies, the business prospects of the employer, and the strength or weakness of the economy also influence an injured employee's ability to hold a job or obtain a new position. The judge should again make factual findings on these vocational factors to the extent that there is record evidence of them.
This incapacity analysis should enable the judge to make a realistic decision about how much the employee, in his injured condition, is able to earn. Lagasse v. Dennison National, 8 Mass. Workers' Comp. Rep. 246, 247-248 (1994), citing Medley's Case, 7 Mass. Workers' Comp. Rep. 97, 99-100 (1993); Scheffler's Case, 7 Mass. Workers' Comp. Rep. 219, 223 (1993); and Frennier's Case, 318 Mass. 35, 63 N.E.2d 461 (1945). If the physical limitations or vocational condition subsequently changed, then at each change, the judge should reassess the extent of incapacity. Saracino v. Commonwealth of Massachusetts, 8 Mass. Workers' Comp. Rep. ___ , slip op. at 7-8 (Dec. 29, 1994).
The Workers' Compensation Act establishes a formula to determine the amount of benefits which a partially incapacitated employee may receive. Section 35 in effect at the time of Dawson's injury provided:
While the incapacity for work resulting from the injury is partial, during each week of incapacity the insurer shall pay the injured employee a weekly compensation equal to two-thirds of the difference between his average weekly wage before the injury and the weekly wage he is capable of earning after the injury, but not more than the maximum weekly compensation rate.
The total number of weeks of compensation due the employee under this section shall not exceed six hundred.
Section 35 was amended by St. 1991, c. 398, § 63. The 1991 amendment was specifically deemed substantive and therefore under § 2A applicable only to injuries after its effective date. It does not apply to this case because the injury here occurred prior to its adoption.
Section 35D defines how to determine the amount to be used in § 35 for "the weekly wage the employee is capable of earning after the injury". Where the employee has returned to work, the judge must determine whether his actual earnings reflect the greatest amount that he is capable of earning. G.L.c. 152, § 35D(1) and (3). The judge must adjust the level of benefits accordingly.
In summary, because we find the decision flawed, we vacate it and remand the case to the administrative judge who rendered the decision for a new decision consistent with this opinion. In light of the passage of time during the pendency of the appeal, if either party alleges a change in medical condition or vocational skills 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 remand decision.
So ordered.
______________________________ Administrative Law Judge Suzanne E.K. Smith
______________________________ Administrative Law Judge Edward P. Kirby
_____________________________ Administrative Law Judge Susan Maze-Rothstein
Filed: November 21, 1995