Board No. 09393788Commonwealth of Massachusetts Department of Industrial Accidents
Filed: October 24, 1995
REVIEWING BOARD DECISION
(Judges Kirby, Smith and Maze-Rothstein)
John McGuire, Esquire, for the employee.
David Heinlein, Esquire, for the insurer.
In this case of successive injuries, several periods of incapacity and succesive insurers, Maryland Casualty Insurance Company appeals from the decision of an administrative judge ordering it to pay benefits under §§ 34 and 35 for various time periods. Maryland seeks reversal, arguing that the administrative judge erred 1) by charging Maryland rather than a subsequent insurer with liability for the employee’s injuries, 2) by assigning an erroneous earning capacity 3) by ordering penalties for an illegal discontinuance, and 4) by failing to offset unemployment benefits against compensation owed. There being no error in the judge’s findings on the appellant insurer’s liability or on causal relationship, we affirm the decision on those issues. We find merit in several of the insurer’s remaining arguments and, accordingly, we vacate and remand on those issues.
The parties have stipulated:
1) that the employee’s average weekly wage, at the time of his December 20, 1988 injury, was $562.71; and
2) that the employer’s workers’ compensation coverage was with the following insurers for the following relevant periods of time:
1/1/88 to 5/31/88 — American Mutual (American)
6/1/88 to 6/19/89 — Maryland Casualty (Maryland)
6/20/89 to 1/29/92 — Public Service Mutual (Public Service)
Mr. Alicea was employed at Russell Harrington Cutlery from November 15, 1977 to April 25, 1990.
The employee, working as a knife edge grinder, sustained an industrial injury to his back on April 8, 1988 while lifting a heavy object in the course of his employment. He became incapacitated from this injury from June 21, 1988 through July 5, 1988, when he returned to his regular duties. American was on the risk and voluntarily paid § 34 temporary total compensation benefits without prejudice. This period of compensation is not on appeal.
Mr. Alicea sustained a second industrial injury on December 20, 1988 followed by bilateral carpal tunnel syndrome to his wrists. The employee continued working until March 28, 1989. On March 29, 1989, right carpal tunnel release surgery was performed and on May 11, 1989 it was done on the left. Maryland was then on the risk and paid § 34 temporary total incapacity benefits as well as § 30 medicals from March 29, 1989 through August 1, 1989.
Mr. Alicea returned to modified lighter duties with the employer on August 1, 1989. Maryland paid § 35 partial incapacity benefits in the amount of $210.00 per week, until April, 1990, which compensated the employee for the difference in wages upon his return to work and his pre-injury average weekly wage. (Dec. 2, 13, 15.) The employee continued in the light duty position until April 25, 1990 when he sustained a third industrial injury and stopped work because of his back problems and increased pain in his hands. (Dec. 7.)
On November 15, 1990, the employee filed a claim for compensation benefits against Public Service, the carrier on April 25, 1990. Further carpal tunnel surgery was performed on his right wrist on December 10, 1991. Thereafter, on March 15, 1991, he joined American and Maryland, arguing that one of those insurers might be responsible for compensation payments due to his continuing incapacity. Mr. Alicea applied for and received unemployment benefits of $148.00 per week from some time in November, ending in May, 1991.
Following a consolidated conference on the back and wrist claims, the judge issued an order on September 6, 1991 in which he dismissed the claims against American and Public Service insurers, and ordered Maryland to pay § 35 partial incapacity benefits at the rate of $224.82 per week based on an average weekly wage of $562.23 with an assigned earning capacity of $225.00 from June 28, 1990 to date and continuing, as well as related medical benefits (Dec. 3).
The employee appealed from the denials of his claims against American and Public Service as well as from the order against Maryland. Maryland cross-appealed. Following several days of evidentiary hearings in 1992, the judge issued his decision, on November 24, 1992, and dismissed all claims against American, the insurer when the first injury, to employee’s back occurred. He ordered Maryland to pay § 35 benefits of $210.00 per week from April 14, 1990 through April 25, 1990 for the carpal tunnel condition, finding the “April 13, 1990” termination of § 35 benefits to be an illegal discontinuance. ( Dec. 2, 13). Public Service was ordered to pay § 34 temporary total incapacity benefits at the rate of $375.14 per week from April 26, 1990 through June 27, 1990, for the new back injury when it was on the risk. The judge found that the superimposition of the back injury upon the pre-existing partial wrist disability rendered the employee totally disabled. (Dec. 16). Public Service was also ordered to pay for continuing back treatments under § 30.
The judge found that the April 25, 1990 back injury had resolved by June 28, 1990 and that the disability after that date was the result of the December 20, 1988 carpal tunnel injuries and their aftermath. (Dec. 17.) He ordered Maryland to pay § 35 partial weekly benefits in the amount of $224.82 based on the $562.71 average weekly wage and an assigned earning capacity of $225.00 from June 28, 1990 and continuing, as well as related medicals.
The judge further ordered Maryland to pay a § 8(5) penalty for an illegal discontinuance on April 13, 1990, finding that Maryland should have continued paying the § 35 benefits until such time as it was authorized to discontinue under the provisions of § 8, in this case following the September 6, 1991 conference order. The amount of the penalty ordered was $3,072.00, an amount equal to 20% of the $15,360.00 Maryland would have paid for the 73 1/7 weeks from April 14, 1990 through September 6, 1991 when the judge ordered reinstatement of benefits. The judge authorized Maryland to offset the unemployment benefits that Mr. Alicea received from November 1990 through May, 1991 against the § 35 benefits due.
Maryland alone appeals. The issues before us involve only responsibility for the employee’s wrist condition from August 1, 1989 when the employee returned to modified work after the first two carpal tunnel surgeries. Maryland argues that Public Service is responsible for all compensation benefits from August 1, 1989. Maryland also appeals from the judge’s finding of an illegal discontinuance on April 13, 1990 with its accompanying penalties.
We agree only in part with Maryland’s arguments, and therefore, we affirm in part, remand in part, and reverse in part. We address Maryland’s several arguments in turn.
Maryland first argues that the administrative judge erred by concluding it is responsible for payment of compensation benefits due to the carpal tunnel condition after August, 1989, averring that it is Public Service that should pay for an aggravation occurring when it was on the risk in February or March, 1989. We do not agree.
The insurer covering the risk at the time of the most recent injury bearing a causal relationship to a disability is responsible where the last injury contributes to the slightest extent to subsequent disability.Rock’s Case, 323 Mass. 428, 429 (1948). An identifiable aggravation or second injury subjects a successive insurer to liability. Trombetta’sCase, 1 Mass. App. Ct. 102, 104 (1973). Where there is no new injury or aggravation, but a recurrence causally related to an original injury, it subjects the insurer on the risk at the time of the original injury to liability for the second period of incapacity. Rock’s Case, 323 Mass. at 429; Thompson v. Tambrands, Inc., 9 Mass. Workers’ Comp. Rep. ___ (June 6, 1995).
To determine whether there is causal relationship between a period of incapacity and a work related incident, expert testimony is required, except in cases where such causal relation is in the common knowledge or experience of an ordinary layman. Josi’s Case, 324 Mass. 415, 417 (1949). It is the judge’s prerogative to determine the probative value of expert testimony and to decide which of conflicting opinions to adopt. Antoine v.Pyrotector, 7 Mass. Worker’s Comp. Rep. 337, 341 (1993), citing Amon’sCase, 315 Mass. 210 (1943). The judge’s findings will be sustained where there is evidential support which is free from error of law. Harris v.Totten Pond Food Serv. 7 Mass. Workers’ Comp. Rep. 107, 109 (1993), citing Woolfall’s Case, 13 Mass. App. Ct. 901, 1070 — 1071 (1982) and cases cited.
The judge in this case relied on the testimony of Dr. Groves who opined that from June 28, 1990, the employee’s incapacity was probably causally related to the December 20, 1988 carpal tunnel injury and its aftermath of two surgeries in 1989 and one in 1991, as well as from the “probably related” chronic pain syndrome. The judge also relied on the testimony of Dr. Boland who opined that at no time since he began to treat him on July 30, 1990 could the employee perform his duties for Harrington or any type of work requiring repetitive use of hand tools. The judge adopted Doctor Boland’s further opinion that Mr. Alicea’s return to modified adjusted work at Harrington on August 1, 1989 in no way aggravated either the carpal tunnel condition or the chronic pain syndrome. Doctor Boland also found the present carpal tunnel condition was related to the continuing impact of the original injury. (Dec. 17).
The judge did not err in adopting the opinions of Doctors Groves and Boland, which were amply supported in the evidence. Accordingly, we affirm the judge’s finding that the employee’s continuing incapacity was causally related to the December 20, 1988 initial wrist injury that occurred when Maryland was on the risk.
Maryland next argues that the judge’s assignment of $225.00 per week earning capacity after June 28, 1990 was error because the evidence established a $400 — $600 per week earning capacity through the testimony of the employee’s personnel agent who indicated the employee was eligible for several positions within his restrictions prior to 1989. It was not imperative that the judge adopt that testimony, however, and, indeed, he made no findings that these were bona fide job offers. SeeLettich’s Case, 403 Mass. 389, 395 (1988).
We do find error, however, in that the judge posited his assignment of an earning capacity on Mr. Alicea’s prior adjusted light work earnings, which the judge had found he could no longer perform after June 28, 1990 when the total incapacity due to the April 25, 1990 back injury had ceased.
The medical evidence supports the judge’s finding that incapacity due to the carpal tunnel injury continued to some extent after June 28, 1990. An employee’s medical condition is not the sole determinant of earning capacity. On remand the judge should consider the medical evidence together with the impact that any physical limitations may have on the employee’s earning capacity in light of his age, education, background, training and other factors set out in Scheffler’s Case, 419 Mass. 251, 256
(1994) and Frennier’s Case, 318 Mass. 635, 637 (1945). See Medley v. E.F.Hauserman, 7 Mass. Workers’ Comp. Rep. 97, 99-100 (1993).
In Maryland’s third argument on appeal it contends that, although raised at hearing, there was no evidence submitted to support the claim under G.L.c. 152, § 8(5). We disagree and affirm the finding of an illegal discontinuance, but vacate the amount of the penalty and remand for re-calculation as well as for a determination of the date when the wrongful termination actually occurred.
Section 8(5) provides in pertinent part that
Except as specifically provided . . . if the insurer terminates, reduces, or fails to make any payments required under this chapter, and additional compensation is later ordered, the employee shall be paid by the insurer a penalty payment equal to twenty per cent of the additional compensation due on the date of such finding.
A careful reading of this section reveals no explicit statutory language requiring evidence to be submitted other than establishment of entitlement to worker’s compensation and non-payment by the insurer of the benefits to which the employee was entitled, by discontinuing benefits without compliance with the provisions of § 8.
The judge found that, despite the fact that a back injury occurred on April 25, 1990, at the time Maryland discontinued payments in April, 1990, there had been no adjudicatory order, or admission of liability by a subsequent insurer. Where there is an alleged new injury, an insurer is not relieved of responsibility for ongoing payments, unless § 8 provides otherwise. Under the circumstances present here, Maryland was not relieved of its obligation to continue § 35 benefits and should have filed a complaint for modification or discontinuance from the date it alleged a new injury occurred. In such circumstances, if another insurer comes to be charged with liability, a judge may order reimbursement under G.L.c. 152, § 15A if there is overpayment.
Although we affirm the judge’s assessment of a § 8 penalty against Maryland, we vacate the amount of that penalty and order recalculation from the date of the actual discontinuance. The judge found that the illegal discontinuance occurred on April 13, 1990. That date, however, has no evidentiary significance and, indeed, is contradicted by the employee’s own testimony. Conclusions are meaningless unless supported by findings with evidentiary support. Kilcullen v. San Vel Concrete Corp.
4 Mass. Workers’ Comp. Rep. 182, 184 (1990). On remand, if the parties do not stipulate to the proper date, the judge will need to take further evidence and make findings on that evidence.
After the actual date of Maryland’s discontinuance is established, the judge should recalculate the penalty based on 20% of what Maryland actually was required to pay, from the date of discontinuance to September 6, 1991 when it resumed payments pursuant to a conference order. The judge should exclude from this calculation compensation paid during the closed period of § 34 benefits from April 26, 1990 to June 27, 1990 when Public Service was to pay. The judge should also consider the offset from the unemployment benefits as discussed below and apply the proper earning capacity from June 27, 1990 forward as discussed above. If the parties are unable to stipulate to the amount, the judge shall take further evidence and make findings.
Maryland’s final argument is that the judge improperly applied § 36(B) in calculating the unemployment offset.
We affirm the judge’s order of the offset pursuant to § 36B, but we find that the interplay between § 36B and the penalty section of § 8(5) requires further clarification and recalculation. On remand, after the judge establishes the (1) actual date of the illegal discontinuance (2) the actual compensation rate from June 28, 1990 and continuing, after determining the earning capacity in accordance with Scheffler’s Case, supra
and Frennier’s Case, supra as discussed above, and (3) deducting the unemployment benefits pursuant to § 36B from the § 35 benefits owed, 4) the judge is to calculate the amount of the § 8(5) penalty on 20% of the net
Maryland was required to pay from the time of the illegal discontinuance to the date compensation was reinstated on September 6, 1991 by the conference order. As noted, Maryland was required to pay $210.00 until April 25, 1990 (Dec. 19) and $224.82 per week from June 28, 1990 until the September 1991 conference and continuing. (Dec. 19.)
In summary, we affirm the judge’s decision on causation and find no error in his determination that Maryland is on the risk for § 35 partial compensation benefits and related medicals flowing from the bilateral carpal tunnel injury sustained on December 26, 1988 from August 1, 1989 to April 25, 1990 and from June 28, 1990 and continuing.
We affirm the judge’s finding of a § 8(5) illegal discontinuance, but vacate the finding of the date of that discontinuance, April 13, 1990, as the date is without evidentiary support. The parties are to stipulate to the correct date or the judge should take evidence and make new findings consistent with this opinion.
Although we affirm the judge’s finding that the employee has a partial earning capacity, we vacate his finding of the amount to be assigned from June 28, 1990 and continuing (i.e. the $224.82 weekly compensation rate based on an earning capacity of $225.00) and order findings de novo with the application of the factors set forth in Scheffler’s Case, supra andFrennier’s Case, supra, in conjunction with the medical evidence.
We affirm the unemployment offset order but we order recalculation of it consistent with this opinion. We affirm the order of a § 8(5) penalty, but order recalculation of the amount after considering the offset for unemployment benefits received, the actual date of the discontinuance in April of 1990, the earning capacity found, and calculation of 20% of the amount Maryland’s responsible to pay, up to the September 6, 1991 conference order.
The insurer is to pay employee’s counsel a fee in the amount of $1500.00.
____________________________________ Edward P. Kirby Administrative Law Judge
____________________________________ Suzanne E.K. Smith Administrative Law Judge
____________________________________ Susan Maze-Rothstein Administrative Law Judge
Filed: October 24, 1995
Except as specifically provided above, if the insurer terminates, reduces, or fails to make any payments required under this chapter, and additional compensation is later ordered, the employee shall be paid by the insurer a penalty payment equal to twenty per cent of the additional compensation due on the date of such finding. No amount paid as a penalty under this section shall be included in any formula utilized to establish premium rates for workers’ compensation insurance. No termination or modification of benefits not based on actual earnings or an order of the board shall be allowed without seven days written notice to the employee and the department.
If one or more claims are filed for an injury and two or more insurers, any one of which may be held to be liable therefor to pay compensation . . . such one of said insurers as they may mutually agree upon or as may be selected by a single member of the board shall pay to the injured employee the compensation aforesaid, pending a final decision of the board as to the matter in controversy, and such decision shall require that the amount of compensation so paid shall be deducted from the award if made against another insurer and be paid by said other insurer to the insurer agreed upon or selected by the single member as aforesaid.
(1) No benefits shall be payable under section thirty-four or section thirty four A for any week in which the employee has received or is receiving unemployment compensation benefits.
(2) Any employee claiming or receiving benefits shall upon written request from the insurer apply for such benefits . . . Any unemployment compensation benefits received shall be credited against partial disability benefits payable for the same time period, or, if for a period of time for which partial disability benefits have already been paid, shall be credited against any future partial disability benefits which are or may become payable. St. 1985, c. 572, § 47A.