Opinion
Board No. 00035593
Filed: February 1, 1996
REVIEWING BOARD DECISION
(Judges Kirby, Smith and Maze-Rothstein)
APPEARANCES:
Tanya P. Millett, Esquire, for the employee
Edward McGourty, Esquire, for the insurer
The employee appeals from a decision of the administrative judge who ordered G.L.c. 152, § 34 temporary total incapacity benefits for a closed period only. The employee contends that it was error to terminate compensation without addressing his age, work experience, education, training or other vocational factors relevant to his ability to earn, in addition to addressing the extent of his medical disability. We agree with the employee's contention. We affirm the judge's finding of liability and the award of § 30 medical benefits, and we remand for further findings on the extent and nature of incapacity consistent with the opinion.
The employee was is 37 years old at the time of his injury. He had a fifth grade education and his primary work experience consisted of auto body work and auto painting. (Dec. 3.) He was employed at Ira Olds-Toyota as a painter's helper until January 7, 1993 when he injured his lower back and right shoulder while attempting to sit on a chair that rolled away from him. Id.
The insurer paid § 34 compensation benefits from January 8, 1993 until April 27, 1993 when they were discontinued within the pay-without-prejudice period. (Insurer's Brief, 1.) The employee then filed a claim for benefits which was denied September 23, 1993 by conference order. The employee appealed for a full hearing, which was held on March 28, 1994. (Dec. 1.)
Dr. Cater, an orthopedic surgeon, examined the employee on December 9, 1993 pursuant to the provisions of G.L.c. 152, § 11A. (Dec. 3.) He opined that the employee sustained a right shoulder sprain and exacerbated a pre-existing herniated disc in the January 7, 1993 fall at work. (Dec. 4.) Dr. Cater further opined that the employee had a good result from a right sided laminectomy at L3-4 and that the employee's shoulder injury had resolved. Id. It was Dr. Cater's opinion, as expressed in his report, that as of his December 9, 1993 § 11A examination, the employee should be able to return to work in his previous occupation as an auto painter and helper. (Dec. 4-5.) But at deposition, the doctor imposed with work restrictions on lifting more than 30 pounds and on bending, twisting, and reaching. (Cater Dep. 37-38.; see Dec. 4-5.)
The judge stated that he adopted Doctor Cater's opinions. He found that the employee's back and shoulder injuries were causally related to his injury at work, and found him totally disabled from the date of his injury to the date of Dr. Cater's § 11A examination on December 9, 1993. (Dec. 6.) However, he made no determination whether or not the employee thereafter suffered any partial disability. (Dec. 5-6.) There is a single cryptic reference in the decision regarding a job offer. The judge noted, without making a finding, that "[t]he job suggested was that the Employee would be required to clean off cars, wash them down, [and] drive them in and out of the work-shop." (Dec. 4.) This referred to a written offer dated April 27, 1993. See (Tr. 42, 46; Insurer's Ex. 2.)
Based on these findings, the judge ordered § 34 weekly compensation benefits from April 28, 1993, the date the insurer discontinued payment, until December 9, 1993, the date of the § 11A exam, at the rate of $165.48 per week based on the average weekly wage of $275.80, as well as § 30 medicals. (Dec. 6-7.) The judge made no further order for weekly benefits thereafter. It is the employee's appeal from this decision which is before us.
Section 1 (7A) as amended by St. 1991, c. 398, § 14 applies to this date of injury as a matter of law. However, the parties did not develop any evidence on whether the work injury was the major cause of the incapacity. The insurer did not appeal on the issue. Nor did the judge address it in the decision. Therefore the liability determination, uncontested on appeal, is the law of the case and we affirm it.
Compensation is not awarded for physical injury as such, but for "incapacity for work." The concept combines two elements, medical and vocational, that together cause a loss of earning capacity traceable to the injury. Scheffler's Case, 419 Mass. 251, 256 (1994). Education, training, age, experience, nature of the job, and other factors may affect the particular employee's ability to cope with the medically identifiable effects of an industrial injury. Id.; Lally v. K.L.H. Research Dev. 9 Mass. Workers' Comp. Rep. ___ (July 31, 1995.)
The judge failed to address these factors in his decision. He adopted Dr. Cater's opinion on causal relationship which was within his authority to do. Antoine v. Pyrotector, 7 Mass. Worker's Comp. Rep. 337, 341 (1993), citing Amon's Case, 315 Mass. 210 (1943). However, he also adopted Doctor Cater's opinion that the employee's disability had ceased. The judge therefore concluded that his incapacity had ended and he could return to work as of December 9, 1993, albeit with restrictions. This was error.
As incapacity is not purely a medical opinion, the judge was required to address the medical condition in relation to the vocational factors and make clear findings of fact on his determinations. Praetz v. Factory Mut. Eng'g Research, 7 Mass. Workers' Comp. Rep. 45, 47 (1993); see Scheffler's Case, supra at 256. It is the judge's responsibility under G.L.c. 152, § 11 and 11B to be the trier of fact. He may not stop after adopting the opinion of a medical expert who is not charged with the responsibility of applying the legal requirements set forth in §§ 11 and 11B to reach a fair and just decision on the issue of incapacity. The judge may render a decision that is based on a physician's opinion, but he must set forth incapacity findings with enough specificity based on sufficiently detailed findings of fact so that the reviewing board may properly perform its appellate function. Praetz, supra at 47.
Finally, as noted above, there was evidence submitted of a modified job offer, in the form of a letter from the employer, dated April 27, 1993. The § 35D formula for determining earning capacity of an injured employee requires assessment and findings on the physical requirements of the employee's pre-injury job, whether other suitable work was made available, and whether the employee could perform it. Alexander v. New England Tel., 7 Mass. Workers' Comp. Rep. 209, 211, (1993).
G.L.C. 152, § 35D provides in pertinent part:
For purposed of sections thirty-four, thirty-four A and thirty-five, the weekly wage the employee is capable of earning, if any, after the injury, shall be the greatest of the following:
. . .(3) The earnings the employee is capable of earning in a particular suitable job; provided, however, that such job has been made available to the employee and he is capable of performing it. The employee's receipt of a written report that a specific suitable job is available to him together with a written report from the treating physician that the employee is capable of performing such job shall be prima facie evidence of an earnings capability under his clause.
Here, the judge made no findings on whether there was a bona fide offer of suitable work that the employee could perform within the physical restrictions he found. (Dec. 4-6.) The judge's inconclusive mention of the "job suggested" does not satisfy the obligation to make findings of fact and to engage in reasoned decision making. (Dec. 4.) See Scheffler's Case, supra at 258; Crowell v. New Penn Motor Express, 7 Mass. Workers Comp. Rep. 3, 4, (1993).
The dissent asserts a job was offered and the medical opinion supported the employee's physical capacity to perform the job offer so it was proper to discontinue the employee's benefits. The record does not support this conclusion, because the offer was made in April 1993 when the, employee was unable to accept it and the record is barren of any evidence that it was renewed thereafter over the course of eleven months until the hearing on March 28, 1994, when the subject was raised in the testimony of the body shop foreman. (Tr. 45-48.) On this record the employee had scant reason to believe there was an offer before him through the hearing date. Moreover the terms of the written offer did not assure the employee of help for the heavy lifting that the job required.
The written offer states "[a]ny parts over 30 lbs. (ie Doors (sic)) should be lifted with the help of another employee." (Insurer's Ex. 2.) (Emphasis added).
The employee, at the time of the offer on April 1993 was scheduled for spinal surgery. Seventeen days later he submitted to an L3-4 right-sided laminectomy. Two inferences are inescapable: at that juncture the employee could not have performed the job, and whether he would become able, was unpredictable. At the § 11A doctor's deposition, which took place on May 2, 1994, a year after the offer, he agreed, in answers to employee's counsel, that as of the date of his examination the employee should avoid certain activities such as lifting more than 30 pounds, crawling under automobiles and bending. (Cater Dep. 38.) He thus modified his opinion as it is contrary to and cancels the utility of his earlier opinion as expressed in the § 11A report that the employee was able to return to his prior occupation as of the December 9, 1993 examination date. See Carmichael v. AT T Technologies, 9 Mass. Workers' Comp. Rep. ___ (December 28, 1995) (discussing how to assess a § 11A report in light of contrary deposition testimony).
Furthermore, the employer witness testimony at hearing (body shop foreman), did not provide a basis for finding that the offer, then eleven months old, was even then firmly being extended to the employee. He testified that the offered job was "still available." (Tr. 48.) Although he was authorized to offer the employee modified work, (Tr. 45) he did not say that the job was at that time offered, which is significant considering there is no evidence in the record that the job offer was discussed from April 27, 1993 to March 28, 1994. Also, the record (Tr. 44-49) is not a sufficient foundation for a finding under § 35D(4) that jobs accommodating the employee's work restrictions at the job offer's pay rate were generally available in the open market. (Tr. 48; Insurer's Ex. 2.)
We have before us a record which lacks findings and evidentiary foundation therefor that the requirements of § 35D of the Workers Compensation Act have been fulfilled as to the job offer. The record does not provide a basis for a § 35D determination of the employee's earning capacity.
Accordingly, we affirm the judge's decision on liability and § 30 medical benefits. We remand for findings on the nature and extent of incapacity, if any. The judge is to consider both the medical evidence and the vocational factors set forth inScheffler's Case, 419 Mass. 251 (1994) to determine the extent of any impairment of earning capacity. He must also make findings on whether and when there was a currently available bona fide job offer, which must include consideration of whether the employer reasonably provided for the employee's restrictions. If it is found to be bona fide, then he must also make findings on whether and when the employee became able to fulfill the requirements of such offer.
As the judge who heard this case is no longer with the department, we forward this case to the senior judge for reassignment to a judge for a hearing de novo consistent with this opinion.
_________________________ Edward P. Kirby Administrative Law Judge
_________________________ Susan Maze-Rothstein Administrative Law Judge
The majority opinion elevates form over substance and invades the fact-finding province of the judge. I would affirm the decision as it is within the scope of the judge's authority, not arbitrary or capricious, or contrary to law, and is adequate for appellate review. G.L.c. 152, § 11C.
A decision is factually warranted and not "arbitrary or capricious" when it has adequate evidentiary and factual support and discloses reasoned decision making within the workers' compensation requirements. Scheffler's Case, 419 Mass. 251, 258 (1994). While an administrative judge's decision must contain "conclusions which are adequately supported by subsidiary findings which are not `lacking in evidential support . . . or tainted by error of law'", see G.L.c. 152, § 11B and Ballard's Case, 13 Mass. App. Ct. 1068, 1069 (1982), an administrative judge's findings need not be detailed or searching but rather need only be sufficient to allow a reviewing court to determine with reasonable certainty "whether the [administrative judge] applied correct principles of law." Johnson's Case, 355 Mass. 782, 783 (1968).
The judge's decision on the extent of incapacity is adequate for appellate review. The judge made detailed findings about the employee's age, education, and work experience. (Dec. 3.) The impartial medical examiner, whose opinion was prima facie evidence pursuant to § 11A(2) and was unrebutted, opined that the employee was capable of returning to his pre-injury type of work as an auto painter helper where he was required to clean off cars, wash them down, and drive them in and out of the work shop. (Dec. 4.) The only restriction was that the employee not lift more than 30 pounds and keep bending, twisting and reaching to a moderate level of activity. (Dec. 5.) It is clear that the judge adopted the impartial examiner's opinion as fact as he concluded that the employee's incapacity ended as of the date of the impartial physician's examination, December 9, 1993. (Dec. 3, 6.)
Although the judge did not make detailed findings about it, the record also contained evidence of an offer of suitable work which supports the judge's conclusion of no ongoing incapacity after December 9, 1993. Prior to surgery the employer offered a job tailored to the employee's limitations. (Tr. 45-46.) The judge found that "[t]he job suggested was that the Employee would be required to clean off cars, wash them down, drive them in and out of the shop." (Dec. 4.) The job was an existing job in the company. (Tr. 47.) The job had been open since January 7, 1993. (Tr. 46.) The job was still available on March 28, 1994, the date of hearing. (Tr. 48.) This evidence also supported the judge's conclusion that incapacity ended because the available work paid as much as the employee's pre-injury average weekly wage. (Tr. 46.) See Major v. Raytheon Corp., 7 MWCR 90, 93-94 (1993). Therefore under the formulas in § 35D(3) and § 35, the employee would not be entitled to any ongoing benefits after December 9, 1993.
Totally lacking in the majority opinion is any recognition of our standard of review: whether there is any evidence, including all rational inferences of which the evidence is susceptible, upon which the finding of non-persuasion of continuing incapacity could have been made. See DeGregorio v. Ceco Construction Co., 6 MWCR 213, 215, 1992 WL 384378 (1992) citing Buck's Case, 342 Mass. 766, 769, 175 N.E.2d 369 (1961); Amon's Case, 315 Mass. 210, 215, 52 N.E.2d 582 (1943).
The arbitrary and capricious standard of review requires only that there be a rational basis for the decision. See Howe v. Health Facilities Appeals Bd., 20 Mass. App. Ct. 531, 534, 481 N.E.2d 510, 512 (1985). The record clearly contains evidence which supports the judge's factual conclusion of non-persuasion of ongoing incapacity after December 9, 1993.
The ability of the reviewing board to weigh evidence, see Lettich's Case , 403 Mass. 389, 530 N.E.2d 159 (1988), was removed by St. 1991 c. 398, § 31 which amended G.L.c. 152, § 11C.
An employee has the burden of proving the nature and extent of his incapacity. Ginley's Case, 244 Mass. 346, 348, 138 N.E. 719 (1923). "Once the judge has determined that the employee has shown only partial limitations on his work activities and not a total inability to work, in the absence of direct testimony as to the amount the employee is able to earn with those limitations, the judge is entitled to use his own judgement and knowledge in determining the extent of partial incapacity." Medley v. E.F. Hauserman, 7 MWCR 97, 100 (1993). Here, the evidentiary record is limited and only enables the administrative judge to identify one particular job which is within the employee's limited ability to perform and which is in fact available. The employee presented no evidence on what he could earn with his injury limitations in the general labor market. We should not entertain complaints about the paucity of a record which it is his burden to establish.Mulcahey's Case, 26 Mass. App. Ct. 1, 3, 522 N.E.2d 431, 432 (1988), review den. 402 Mass. 1105, 525 N.E.2d 678 (1988);Nowak's Case, 2 Mass. App. Ct. 498, 500, 314 N.E.2d 455 (1974); O'Reilly's Case, 265 Mass. 456, 458, 164 N.E. 440 (1928).
The judge here briefly disclosed his reasoning process in his decision. The brevity of the judge's decision is statutorily authorized. See G.L.c. 152, § 11B ("Decisions of members of the board shall set forth the issues in controversy, the decision on each and a brief statement of the grounds for each such decision.") (emphasis supplied). The judge's ultimate findings reflected his adoption of the opinion of the impartial physician. When coupled with his specific vocational findings on page 3 of the decision as required by Scheffler's Case, 419 Mass. 251 (1994) andFrennier's Case, 239 Mass. 89 (1935), and the record evidence of the employer's job offer which the impartial physician cleared the employee to perform, the evidence as a whole pointed clearly to the conclusion drawn by the judge.
The majority order of remand for further findings of fact elevates form over substance and unnecessarily delays justice. Because the judge who rendered the decision no longer serves the department, the remand order results in a completely new trial. A hearing de novo unfairly benefits the party who failed to present adequate evidence and is an inefficient use of judicial resources and a financial hardship to the parties. The decision should be affirmed.
________________________ Suzanne E.K. Smith Administrative Law Judge
Filed: February 1, 1996