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Mendes v. Percor, Inc., No

Commonwealth of Massachusetts Department of Industrial Accidents
Nov 25, 1998
BOARD No. 03339492 (Mass. DIA Nov. 25, 1998)

Opinion

BOARD No. 03339492

Filed: November 25, 1998

REVIEWING BOARD DECISION

(Judges Smith, Wilson and McCarthy)

APPEARANCES

Karen Catuogno, Esq., for the employee.

Michael F. Ashe, Esq., for the insurer.


The employee appeals from a decision denying his claim for permanent and total incapacity benefits, and instead awarding partial incapacity benefits based upon a $170.00 per week earning capacity. We affirm the decision in all respects but one. The employee contends that the judge erred in excluding expert vocational testimony. We find it appropriate to recommit the case for further findings on this issue. See G.L.c. 152, § 11C.

Manuel Mendes, a fifty-two year old Portuguese immigrant with no formal education, injured his left knee in a fall at work on July 16, 1992. (Dec. 4-5.) He underwent two surgeries in the ensuing two and a half years. (Dec. 5.) The insurer accepted liability for Mendes's injury, and paid temporary total incapacity benefits until their exhaustion, with a hiatus in payments while Mendes attempted to return to work from July through December 1993. (Dec. 3, 5.)

After exhausting his § 34 temporary total incapacity benefits, Mendes filed a claim for § 34A permanent and total incapacity benefits and, in the alternative, § 35 partial incapacity benefits. A § 10A conference was held on February 29, 1996. The judge issued a conference order denying the claim and Mendes appealed to a full evidentiary hearing. (Dec. 2.) Pursuant to G.L. c. 152, § 11A, Mendes underwent an impartial medical examination. The impartial physician opined that Mendes's industrial accident caused a fracture of the tibial table and a lateral meniscus tear. The doctor indicated that Mendes was partially medically disabled, with restrictions on standing, sitting or walking more than thirty minutes. (Dec. 6.)

The employee moved to strike the impartial medical examiner's report and deposition testimony on the grounds of bias. The judge found that the doctor performs independent medical examinations (IMEs) for insurance companies, that up to forty percent of his practice is conducting such examinations, and that he has probably or possibly in the past two years performed an examination on behalf of the insurer. However, she credited the physician's denial of any bias and concluded that the doctor was not biased against the employee. (Dec. 3.) The judge then adopted the opinions of the impartial doctor. (Dec. 6.)

At the hearing on July 10, 1996, Mendes attempted to introduce testimony of an expert in vocational rehabilitation, Dr. Emmanuel Green. At the onset of his testimony, the insurer objected on the grounds of surprise. (Tr. 58.) The judge overruled that objection. (Tr. 59.) Dr. Green proceeded to testify about his qualifications: a Ph.D. in counseling psychology, certification in rehabilitation economics by the American Rehabilitation Economics Association, a diplomate in the American Board of Vocational Experts, his certification as a vocational expert by the U.S. Railroad Retirement Board and the Social Security Administration, his work for those agencies for ten and twenty eight years, and his publications in rehabilitation journals. (Tr. 61-64.) The employee then offered Dr. Green as a vocational expert with regard to assessing his work capacity. The insurer objected on three grounds: 1) the witness had not established expertise in workers' compensation issues; 2) the witness was reading from his curriculum vitae which had not been provided to the insurer; and 3) the insurer was prejudiced by his surprise appearance. (Tr. 64-65.) Employee's counsel represented that the testimony would establish that the employee was unable to return to his pre-injury job and there were no other jobs in the competitive labor market that he could perform and obtain. (Tr. 65.)

The judge ruled:

I am going to allow Dr. Green to testify, but I am not going to certify him as a professional expert. And to the extent that there is any information which he has knowledge of that is relevant, fine. But I am not going to allow his testimony in as an expert.

(Tr. 66.)

The employee's counsel then asked additional questions. He elicited Green's testimony that he had testified in the trial courts of Massachusetts as a vocational expert 20 to 30 times, (Tr. 66), and before the Department of Industrial Accidents the preceding year 10 times. (Tr. 67.) Counsel moved again for Green's qualification as an expert. The judge responded: "My ruling stands." Id.

Dr. Green proceeded to testify about the vocational assessment that he performed for the employee, including the employee's age, background, training and experience, medical limitations, the results of his vocational testing, and the vocational requirements of certain jobs, e.g. bench work. The employee's counsel then asked: "Now, doctor, taking the results of your vocational interview and testing of Mr. Mendes, and the report of Dr. Carver [the impartial medical examiner], do you have an opinion to a reasonable degree of vocational certainty as to Mr. Mendes's ability to return to his prior work level?" (Tr. 88.) Insurer's counsel objected on the basis that the witness was not an expert and the judge sustained the objection, denying the employee's request to re-qualify him. Id. Next, the employee's counsel asked Dr. Green if he had an opinion about Mr. Mendes's ability to do other types of work. The insurer's counsel renewed his objection. The judge, stating that the question was broad, "other types of work," sustained the objection. (Tr. 89.)

On cross-examination, insurer's counsel elicited testimony that Dr. Green interviewed the employee, at the request of employee's counsel, in early June, two months after the § 10A conference, and submitted a report to the employee's attorney on June 26, 1996. (Tr. 89-90.) Insurer's counsel renewed his objection to the witness on the grounds of prejudice and surprise. The judge again overruled the objection. (Tr. 91.) Then after further cross-examination, (Tr. 91-96), counsel repeated the same objection and the judge again overruled it, noting that she was "unaware of any rule, regulation or otherwise, which requires disclosure as to specific witnesses on (sic) the basis of their testimony prior to testifying." (Tr. 97.)

But see 452 CMR 1.10(2), which requires the disclosure of the names of witnesses to be presented, with a summary of their anticipated testimony, and provides that such "memorandum may be amended by the parties, with the leave of the administrative judge, at or before the hearing." The rule implies that the parties have a continuing obligation to disclose witnesses, so as to avoid surprise or calculated ambush at hearing.

In her decision, the judge made the following findings of fact: Mendes's former heavy-duty employment was incompatible with his current physical limitations. (Dec. 7.) Mendes had some capacity to perform bench work, although his ability with fine dexterity was limited, and vocational testing indicated that he might have difficulty meeting standardized level of production. (Dec. 7-8.) Mendes could pursue work opportunities in the Portuguese-speaking community of his hometown, Ludlow, Massachusetts. He could drive and could perform a job that would allow him to change position every twenty-five minutes. Mendes had work possibilities in the nature of light deliveries, parking lot attendant, cashier, gas station attendant or counter help. (Dec. 8.)

Because the judge concluded that Mendes could perform remunerative work beyond that of a trifling nature, she denied his claim for permanent and total incapacity benefits, and awarded partial incapacity benefits with an earning capacity of $170.00 per week. (Dec. 9-10.) Mendes appeals to the reviewing board.

On appeal, Mendes raises three issues: 1) the judge erred in finding that he had any earning capacity; 2) additional medical evidence was required because the impartial medical examiner was biased; and 3) the judge erred in declining to allow the vocational expert testimony. We find no reversible error on the first two issues and recommit the case for further findings of fact on the third.

Earning Capacity

The extent of earning capacity is a question of fact solely within the province of the administrative judge to decide. Trant's Case, 21 Mass. App. Ct. 983, 984 (1986). If the amount is not arbitrary or capricious, or contrary to law, we cannot disturb it even though we might have chosen a different amount or found no work capacity. Neither the employee nor his vocational expert presented evidence about the conditions of the labor market where the employee resided. Under those circumstances, the judge was free to use her own judgment and knowledge in determining that question.Mulcahey's Case, 26 Mass. App. Ct. 1, 3 (1988), citing O'Reilly's Case, 265 Mass. 456, 458 (1929); Percival's Case, 268 Mass. 50, 54 (1929); Royal's Case, 286 Mass. 374, 377 (1934); and Nowack's Case, 2 Mass. App. Ct. 498, 500 (1974). We recognize that a judge sitting in a particular community gains expertise in the vocational opportunities that there exist through testimony in numerous cases. Thus the judge's earning capacity conclusion could be properly based upon her own judgement and knowledge that in his Portuguese speaking community, his minimal English skills were not a significant impediment to the types of jobs that he had the capacity to perform. (Dec. 8.) Her language finding was rationally supported by the employee's own testimony that "[i]n Ludlow, everything is Portuguese, so" he had no difficulty communicating. (Tr. 22-23.)

The employee had the burden of proving that he had no work capacity. Ginley's Case, 244 Mass. 346, 347 (1923). "Without a showing of attempts (unless they would be futile) to secure employment, a claimant cannot support a claim of total disability on the basis that employment is unobtainable." Ballard's Case, 13 Mass. App. Ct. 1068, 1069 (1982). Mendes did not search for suitable work and the judge excluded the vocational witness's expert opinion that such a search would have been unavailing. The judge's finding that the employee had an earning capacity of $170 per week is tantamount to a statement that the evidence left the judge unpersuaded that the employee was precluded by his condition from doing any types of work at the lower end of the wage scale. See Mulcahey's Case, 26 Mass. App. Ct. 1, 3 (1988). We cannot say that, based upon this meager record, this conclusion was irrational or capricious. However, as we discuss below, the conclusion may have been tainted by legal error in excluding expert opinion.

See G.L.c. 151, § (the minimum wage statute); Maggiano v.Boston Five Cents Savings Bank, 10 Mass. Workers' Comp. Rep. 271 (1996) ("a $175.00 minimum wage earning capacity").

Bias

Every contention of bias or partiality does not have to be honored. The judge properly fulfilled her duty to resist challenges to the impartial physician's report that were tenuous, baseless, or frivolous. See Tallent v. M.B.T.A., 9 Mass. Workers' Comp. Rep. 794, 799 (1995). She made detailed findings about the alleged bias of the impartial medical examiner. She concluded as a fact that there was no actual bias. The fact that the impartial medical examiner performed examinations for insurance companies does not compel a finding of bias or inadequacy as a matter of law. See Mattison's Case, 305 Mass. 91 (1940) (under a prior impartial physician statutory scheme, an impartial physician was not disqualified because he testified numerous times for insurers; impartiality cannot be determined by a numerical count of the number of times a physician testified for insurers as compared to employees). The judge's denial of the motion for additional medical evidence was not beyond the scope of her authority, arbitrary or capricious, or contrary to law, and so we affirm it. G.L.c. 152, § 11C.

Qualification of an Expert

The general opinion rule is that, unless qualified as an expert, a witness may testify about facts known to him or observed by him, but may not give an opinion based on those facts. Liacos, Handbook of Massachusetts Evidence § 7.1, at 358 (6th ed., 1994). The judge appeared to follow this rule in limiting the evidence she considered from Dr. Green. If Dr. Green did not meet the qualification requirements for vocational expertise, then the judge's rulings excluding his conclusions about the employee's re-employment potential, (Tr. 66, 67, 88, 89), were correct.

The role of an expert witness is to help a judge understand issues of fact beyond her common experience. Although a judge may, in the absence of vocational evidence, draw on her own expertise,Mulcahey's Case, supra, that is not a valid reason for excluding an expert vocational opinion. Under modern standards, expert testimony on matters within the witness's field of expertise is admissible whenever it will aid the judge in reaching a decision, even if the expert's opinion touches on the ultimate issues that the judge must decide. See Timmons v. Massachusetts Bay Transp. Authority, 412 Mass. 646, 648 (1992). Thus, although the judge ultimately has to decide whether the employee has a work capacity, and if so, the extent thereof, testimony from qualified vocational experts has been routinely permitted. See id.

The question here is whether the judge committed reversible error in refusing to qualify Dr. Green as a vocational expert. To be qualified as an expert, a witness must show to the administrative judge's satisfaction that he possesses sufficient special knowledge and experience to be able to give competent aid to the judge in construing the particular facts of the case in dispute. Liacos, Handbook of Massachusetts Evidence § 7.10.1. Here the dispute centered on whether, considering his work-related physical limitations, and his background, training, age and experience, Mendes had the ability to perform remunerative work in the competitive labor market. Dr. Green testified to a long list of qualifications. This evidence would permit the judge to conclude that Dr. Green was well qualified to offer expert testimony on Mendes's capacity to perform non-trifling employment. See Timmons, 412 Mass., supra, at 648.

The administrative judge did not explain her oral ruling disqualifying the employee's vocational witness as an expert. The reason for her ruling is not apparent from the record. CompareCoggin v. Massachusetts Parole Bd., 42 Mass. App. Ct. 584, 588 (1997) (recommittal unnecessary where the reason is apparent). Because we cannot understand the basis for the exclusionary ruling, we cannot determine with reasonable certainty that the judge applied the correct law to facts that could properly be found. See DiClavio's Case, 293 Mass. 259, 261-262 (1936) (discussing when further findings are required). We therefore recommit the case to the administrative judge for further findings.

On recommittal, the judge shall explain why she found Dr. Green unqualified, or may reverse her ruling. Even if the judge does qualify Dr. Green as an expert, she is not required to adopt his opinions. The judge may assign to the opinions the probative value she deems proper. Liacos, Handbook of Massachusetts Evidence, § 7.6 at 374. If the judge qualifies Dr. Green as an expert, she shall revisit the question of the extent of the employee's earning capacity. The judge may take such further evidence, as she deems necessary to do justice.

So ordered.

________________________ Suzanne E. K. Smith Administrative Law Judge

________________________ William A. McCarthy Administrative Law Judge

________________________ Sara Holmes Wilson Administrative Law Judge

FILED: November 25, 1998


Summaries of

Mendes v. Percor, Inc., No

Commonwealth of Massachusetts Department of Industrial Accidents
Nov 25, 1998
BOARD No. 03339492 (Mass. DIA Nov. 25, 1998)
Case details for

Mendes v. Percor, Inc., No

Case Details

Full title:Manuel Mendes, Employee v. Percor, Inc., Employer, Travelers Insurance…

Court:Commonwealth of Massachusetts Department of Industrial Accidents

Date published: Nov 25, 1998

Citations

BOARD No. 03339492 (Mass. DIA Nov. 25, 1998)

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