RODGERS v. DEPARTMENT OF PUBLIC WORKS, No. 00780789 (Dec. 29, 1997)

William J. Rodgers, Employee v. Department of Public Works, Employer Commonwealth of Massachusetts, Insurer

BOARD No. 00780789Commonwealth of Massachusetts Department of Industrial Accidents
Filed: December 29, 1997

REVIEWING BOARD DECISION
(Judges Fischel, Levine, and Wilson)

APPEARANCES

Thomas H. O’Neill, Esquire, for the employee at hearing.

James N. Ellis, Jr., Esquire, for the employee on review[1]

[1] James N. Ellis, Jr. appeared as counsel of record when this matter was appealed in October 1996, and prepared a brief for the employee received at the department on March 18, 1997. He was subsequently suspended from legal practice. In re Ellis, 425 Mass. 332 (1997).

Arthur Jackson, Esquire, for the self-insurer.

FISCHEL, J.

For nearly fifteen years prior to the 1989 injury which disabled this heavy equipment operator and manual laborer from that work, the employee also ran a rubbish removal business. (Dec. 4-6.) The reviewing board remanded this matter because, in assessing his post injury earning capacity “it was erroneous to base the employee’s earning capacity on the gross receipts from his self-employment, rather than on the net earnings.” Rodgers v.Massachusetts Department of Public Works, 9 Mass. Workers’ Comp. Rep. 539, 540 (1995).

The board noted that “although considerable expenses were listed by the employee on his tax return” for 1989, there was nothing on the record below to reflect whether the judge allowed for such deductions in calculating earning capacity. Id. at 541-542. The board held that gross receipts from self-employment are not a sufficient basis for determining earning capacity. Id. at 542. Vacating the judge’s finding of the employee’s earning capacity, the board specified that “[t]he judge on remand may take additional evidence as to the details of the employee’s income tax return to determine his true net earnings from his business.” Id.

In rendering his decision on remand, the judge nonetheless again utilized gross earnings in his analysis. (Dec. 9.) Although he was authorized by the prior reviewing board decision to “receive additional evidence relevant to the issues” before him, id. at 544, the judge misconstrued that and stated he was confined to make findings “on the existing record.” (Dec. 2; emphasis in original). The judge thus allowed no evidence on the employee’s actual earnings, if any, in the years after the 1989 work injury, which is relevant to the issue of the employee’s ability to sustain self-employment post injury.

We recommit this matter again for proper findings as previously directed.

So ordered.

_____________________ Carolynn N. Fischel Administrative Law Judge
_____________________ Frederick E. Levine Administrative Law Judge
_____________________ Sara Holmes Wilson Administrative Law Judge

Filed: December 29, 1997