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Commonwealth of Massachusetts Department of Industrial AccidentsApr 10, 1998
BOARD No. 38216-89 (Mass. DIA Apr. 10, 1998)

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BOARD No. 38216-89

Filed: April 10, 1998


(Judges Maze-Rothstein, McCarthy and Smith).


Gerard Pellegrini, Esq., for the employee.

John R. Cowie, Esq., for the insurer.

The employee appeals a decision that denied his claim for G.L.c. 152, § 34A permanent and total incapacity weekly benefits and instead awarded § 35 partial incapacity benefits with an earning capacity of $175.00 per week. We recommit the case for further findings.

Mr. Russell is a forty-one year old high school graduate, who has worked as a wallpaper hanger, an auto body repairman, a maintenance worker, and for the employer, as a shipper/receiver and purchasing agent. This latter work required heavy lifting and frequent bending. (Dec. 3.) He suffered an industrial injury to his lower back on July 13, 1989, while lifting a fifty-five gallon steel drum. (Dec. 3.) The insurer accepted liability for the injury, and paid § 34 temporary total incapacity benefits. (Dec. 2.) Russell never returned to work. In 1994, he filed a claim for permanent and total incapacity benefits. (Dec. 2.) The insurer resisted this claim, which went to a § 10A conference. (Dec. 2.) By conference order, § 34 benefits were to continue until exhaustion, followed by § 35 partial incapacity benefits from July 14, 1994 onward with an assigned earning capacity of $125.00 per week. (Dec. 2-3.) Both parties appealed to a hearing de novo. (Dec. 3.)

On June 30, 1994, the employee underwent a statutory medical examination. See G.L.c. 152, § 11A. The § 11A doctor diagnosed the employee with degenerative disc disease at two levels in his low back. The doctor opined that the work incident caused the onset of the employee's pain and his medical disability, but not his underlying degenerative disc disease. (Dec. 4-5.) The doctor prohibited the employee's return to shipping and receiving work and restricted him from prolonged standing or sitting, significant lifting, bending, stooping or rotation of his back. (Dec. 5.) Adopting this opinion evidence, the judge concluded that the employee's present medical disability was causally related to the industrial accident, leaving him partially incapacitated, with an earning capacity of $175.00 per week. (Dec. 6-7.) Aggrieved, the employee appeals to the reviewing board. The employee contends that the judge made an unwarranted "assumption that there exists an employer who would be willing to conform to the employee's physical limitations and offer him a job on the open labor market."

General Laws c. 152, § 11A gives an impartial medical examiner's report the effect of "prima facie evidence with regard to the medical issues contained therein," and expressly prohibits the introduction of other medical evidence to meet it unless the judge finds the additional medical testimony is required due to the complexity of the medical issues involved or the inadequacy of the report.

(Employee's Brief at 6.)

"The determination of loss of earning capacity involves more than a 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."Scheffler's Case, 419 Mass. 251, 256 (1994). At the outset, the judge made findings as to the employee's work history and in concluding she paid obeisance to the all too familiar phrase, — the employee's "education, training and work history." But the decision lacks any analysis of how these factors combine with the residual medical condition to explain the earning capacity assigned. (Dec. 6.)

The employee could not return to his former employment (Dec. 5), and the § 11A doctor felt a new job would have to be "tailor-made" to conform to his limitations. (Dep. 38-39.) Given this and the employee's vocational profile of high school education and a consistently physically demanding work life (Dec. 3), we do not know how the earning capacity assignment was reached. The only medical evidence in this case severely circumscribes future work opportunities for Mr. Russell.Supra 2. The employee testified that he has not worked in the past five years and feels unable to do any work. (Tr. 19.) On cross-exam Russell said he did no house work, cannot put on his socks or tie his shoes, and is in daily pain. (Tr. 32-35.) The judge noted in her decision that "having observed the employee and listened to his testimony, I credit the employee's testimony as to these facts. . . ."

It is unclear what the judge meant by ". . . as to these facts. . . ."

Our § 11C standard of review expressly permits us to recommit for further findings of fact when we deem it appropriate. The reviewing board has established a line of cases which use the `appropriate for recommital' piece of § 11C and hold that the mere finding of a work history, adoption of a medical opinion and mention of vocational criteria is not enough. See e.g. Beagle v.Crown Serv. Sys., Inc., 10 Mass. Workers' Comp. Rep. 282 (1996) (determinations of earning capacity are meaningless unless adequately supported by subsidiary findings that are, in turn, grounded in the evidence); Faille v. U.S Concrete, 11 Mass. Workers' Comp. Rep. 473, 476-477 (1997); Peters v. City of Salem Cemetary Dept., 11 Mass. Workers' Comp. Rep. 55, 58 (1997) (where token reference to earning capacity assessment made we are hard pressed to accomplish our review). To be sufficient, the findings must briefly analyze how these elements combine to justify the earning capacity assignment. See Crowell v. New Penn Motor Express, 7 Mass. Workers' Comp. Rep. 3, 4 (1993) (to be affirmed, we should be able to look at the subsidiary findings and clearly understand the logic behind the judge's ultimate conclusions).

Appellate court standards for reversal or recommittal are consistent with reviewing board cases applying the part of § 11C. See Ballard's Case, 13 Mass. App. Ct. 1068, 1069 (1982);Mulcahey's Case, 26 Mass. App. Ct. 1 (1988).

The § 11A examiner opined that the employee could perform "work that would allow him to sit as much as he wanted, but he could stand at times and move back and forth between those two positions according to his back symptoms." (Dep. 32.) We are left to speculate what Mr. Russell, now precluded from his former heavy work life, might actually do in the open labor market to earn more than trifling wages. See Scheffler's Case, supra; Mello v. J J Corrugated Box Corp., 9 Mass. Workers' Comp. Rep. 512, 514-515 (1995).

We therefore recommit the case for further findings as to earning capacity. See G.L.c. 152 § 11C.

So ordered.

___________________ Susan Maze-Rothstein Administrative Law Judge

___________________ William A. McCarthy Administrative Law Judge

Filed: April 10, 1998

Unlike the rescript opinion in Ballard's Case, 13 Mass. App. Ct. 1068 (1982), and like the full decision inMulcahey's Case, 26 Mass. App. Ct. 1(1988), this decision does not contain inconsistent findings. "[W]e are not the arbiters of fact . . . our standard of review does not extend to what conclusions we would have reached had we been the finder of fact, but is instead limited to whether there is sufficient evidence, including all rational inferences therefrom, to support the judge's decision." Marconi v. Crusader Paper Co., 10 Mass. Workers' Comp. Rep. 609, 610 (1996). It is inappropriate to require further findings merely to regulate the precise form of a judge's decision. McElroy's Case, 397 Mass. 743, 746 (1986). No magical formula or cant is required for an earning capacity decision, so long as it contains such specific and detailed subsidiary findings as will enable the reviewing court to determine with reasonable certainty whether correct rules of law have been applied. Id. This decision meets that standard.

The judge did not find that a job would have to be specially created for the employee to return to the labor market. The judge made a clear factual finding adopting the opinion of the impartial medical examiner that imposed limitations but did not restrict the employee from performing all work. (Impartial Dep. 31-32; Dec. 5-6.) In so doing, she obviously rejected the employee's competing testimony, (Tr. 19), that he was medically unable to do any work at all. The doctor's opinion, in the absence of evidence that the employee had been unable to obtain such suitable work in the competitive labor market, was competent evidence to support the judge's assessment of an entry level minimum wage earning capacity for this high school graduate.Mulcahey's Case, at 2; see G.L.c. 151, § 1 (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").

The impartial physician opined that a primarily sedentary job, where the employee was free to stand at will, would be appropriate. (Impartial Dep. 32.)

The judge did not adopt the employee's testimony that he did no housework, could not tie his shoes and socks and is in daily pain. She merely credited his testimony about his vocational history. "These facts" that she credited at Dec. 5 were simply those that she had previously set forth regarding his vocational and medical history. See (Dec. 3-5.)

The judge is the sole determiner of fact and is not required to accept the employee's testimony that he cannot work. Nor, in the absence of labor market evidence, is she required identify particular jobs that are within the employee's limited ability to perform and that are in fact available. Mulcahey's Case, 26 Mass. App. Ct. at 3. The judge made detailed findings of fact about the vocational evidence presented. (Dec. 3.) Just as in Mulcahey's Case, the record here would not support any more detailed factual findings, as the employee failed to produce any other vocational evidence.

As in Mulcahey's Case, here the employee's principal contention is that the board erred in finding him to have an earning capacity when the record did not contain evidence to identify the type of work that is within his limited ability to perform and that is in fact available. (Employee's Brief, 6.) However, the Appeals Court in a full opinion, corrected this misinterpretation of Ballard's Case, an earlier rescript opinion. It held the Ballard's Case "should not be read as so holding, at least in cases where, as here, a limited evidentiary record would not enable the board to make findings with respect to alternative lines of work."Mulcahey's Case at 3. The court said that Ballard's Case consisted primarily of recitations of testimony, and a critical ultimate findings of fact purported to be based on the board's adoption of both of two conflicting medical opinions. Id. InMulcahey's Case, in contrast, the judge made a specific factual finding that the employee had the physical ability to perform some remunerative work, which was well grounded in the adopted medical evidence, and the record contained no specific labor market evidence. Id. In rendering the Mulcahey opinion, neither the judge nor the Appeals Court relied upon the dueling medical opinion of no limitations. The Appeals Court affirmed the summary conclusion of a specific earning capacity without requiring further findings of fact, Id. At 4, and the Supreme Judicial Court denied further appellate review. Mulcahey's Case, 402 Mass. 1105 (1988).

The burden of proving incapacity rests on the employee. Davis's Case, 304 Mass. 530, 534-535 (1939). He did not sustain the burden of showing total medical disability. There is no evidence to support an assumption that the open labor market does not contain any employers who would be willing to conform to his physical limitations and offer him a job. The judge's finding that the employee has a $175 per week earning capacity is tantamount to a statement that the evidence left the judge unpersuaded that the employee is precluded by his condition from doing the types of work at the lowest end of the wage scale. Mulcahey's Case, 26 Mass. App. Ct. at 3.

Because the decision is not arbitrary or capricious in the sense of having adequate evidentiary and factual support and discloses reasoned decision making within the particular requirements governing this workers' compensation dispute, recommittal for further findings of fact is inappropriate. The decision should be affirmed. G.L.c. 152, § 11C; see Scheffler's Case, 419 Mass. 251, 254 (1994).

____________________ Suzanne E. K. Smith Administrative Law Judge