BOARD No. 017620-89Commonwealth of Massachusetts Department of Industrial Accidents
Filed: September 29, 1995
REVIEWING BOARD DECISION
(Judges McCarthy, Fischel and Wilson)
APPEARANCES
Richard Haley, Esq., for the employee.
Stephen Rowley, Esq., for the self-insurer.
McCARTHY, J.
Lois Brinton, who was forty-seven years of age at the time of her industrial injury, is a high school graduate with special training as a nurse’s aide. She has worked in that capacity since 1962. (Dec. 4-5) In 1986, the employee began working as a nurse’s aide, for the City of Lynn, at the Lynn Convalescent Home. Her duties included changing, washing, and lifting patients.
On April 1, 1989, while moving a patient, the employee was thrown backwards and sustained an injury to her low back. At the Melrose-Wakefield Hospital, she was diagnosed as sustaining a lumbar strain. She was treated with muscle relaxants, and underwent outpatient physical therapy at the Union Hospital in Lynn. (Dec. 5) A CAT scan of the lumbar spine, performed in January of 1990, revealed a bulging disc and degenerative disc disease at the facet joints without nerve root impingement. No definite disc lesion was found. Due to continuing complaints of back and leg pain, the employee was admitted to the Atlanticare Medical Center in May, 1991, where she was fitted with a lumbar brace and treated with a period of pelvic traction. After discharge with the brace on May 15, 1991, the employee continued to treat with her physician. (Dec. 6) The employee has not returned to the work force since her injury on April 1, 1989.
The self-insurer accepted liability and on April 2, 1989 began paying weekly § 34 compensation of $267.78, based on an average weekly wage of $401.65. The self-insurer petitioned to discontinue or modify the employee’s § 34 benefits and the matter was heard by an administrative judge on January 21, 1992. (Dec. 3) Thereafter the administrative judge issued a conference order authorizing the self-insured to discontinue payment of § 34 benefits and begin payment of partial incapacity compensation under § 35 of $154.43 per week, based on an assigned earning capacity of $170 from February 6, 1992 to date and continuing. (Dec. 4) The employee appealed and the case came on for a hearing de novo before the same administrative judge.
After the evidentiary hearing, the judge decided that the employee was capable of performing sedentary work and had an earning capacity of $170 per week. (Dec. 12) The self-insurer was ordered to continue paying § 35 benefits, taking into account the employee’s earning capacity. (Dec. 13) The case is before the reviewing board on the employee’s appeal. On appeal, the employee maintains that the judge’s subsidiary findings, as related to the employee’s earning capacity, are not substantiated by the facts found.
In her brief, the employee points to the § 11A examiner’s report to discredit any finding of earning capacity. “It should be noted that the patient has no particular training or skill that would allow her to find such [sedentary] work.” (Employee Brief at 2) (quoting Impartial Medical Report 4) The employee states that “[i]t is the failure of the Judge to grapple with this last sentence that mandates this appeal.” (Employee Brief at 2) The employee’s argument is only partially correct. An impartial examiner’s opinion is entitled to prima facie weight as to issues of medical
disability and related medical matters. Opinions as to an employee’s vocational status or ability to earn a wage will not be afforded prima facie weight. Incapacity for work entails two elements: a medical element based upon expert testimony and an economic element to be determined by the judge from all the evidence. Scheffler’s Case, 419 Mass. 251 (1994). Despite the employee’s reliance on the § 11A examiner’s determination of her skills, the evaluation of vocational and economic factors in determining an employee’s earning capacity are ultimately the responsibility of the administrative judge. Id. Here, however, the judge failed to properly set out her reasons for determining that the employee had an earning capacity.
Although an administrative judge may utilize her own judgment and knowledge in assigning an earning capacity in the absence of testimony, seeMulcahey’s Case, 26 Mass. App. Ct. 1 (1988), “[i]n deciding the issue of incapacity, an employee’s physical limitations constitute only one factor to be considered by the judge. An administrative judge must also consider the employee’s age, education, background, training, work experience, mental ability and other capabilities.” Scheffler v. Sentry Insurance, 7 Mass. Workers’ Comp. Rep. 219, 223 (1993) (citations omitted).
The opinion before us lacks such deliberation aside from a few findings of fact.
The judge held: “I adopt the medical opinion of Doctor John J. Lynch, and find the employee remains disabled for her prior work activities as a nurse’s aide . . . and find that such disability can reasonably be expected to remain permanent. I find the employee is capable of performing sedentary work activities. . . .” (Dec. 12). The judge then concluded that “the employee does possess an earning capacity of $170 for work in the general labor market. . . .” (Dec. 12) Even if the judge fully evaluated the requisite variables in determining earning capacity, that analysis must be part of the record to enable proper appellate review. See Praetz v.Factory Mut. Eng’g Research, 7 Mass. Workers’ Comp. Rep. 45 (1993). We know neither the evidentiary basis nor the reasoning behind the judge’s conclusion as to earning capacity. On appeal, “we should be able to look at these subsidiary findings of fact and clearly understand the logic behind the judge’s ultimate conclusion.” Crowell v. New Penn Motor Express, 7 Mass. Workers’ Comp. Rep. 3 (1993).
We recommit this case to the administrative judge for additional findings pertaining to the employee’s earning capacity. On recommittal, it would be appropriate for the judge to indicate the range and types of activities for which the employee is said to have an earning capacity.Ballard’s Case, 13 Mass. App. Ct. 1068 (1982).
So ordered.
_____________________________ William A. McCarthy Administrative Law Judge
_____________________________ Carolynn N. Fischel Administrative Law Judge
_____________________________ Sara Holmes Wilson Administrative Law Judge
Filed: September 29, 1995