BOARD No. 035228-91Commonwealth of Massachusetts Department of Industrial Accidents
Filed: February 2, 1996
REVIEWING BOARD DECISION
(Judges Smith, Maze-Rothstein and Kirby)
APPEARANCES
Frederick Illingworth, Esq., for the employee
Martin Sullivan, Esq., for the insurer
Smith, J.
The employee appeals from the decision of the administrative judge which awarded § 35 partial disability benefits terminated on the filing of the decision. As grounds for appeal, the employee argues that the judge’s decision was arbitrary and capricious because the date of termination was not based on expert medical evidence, and in any case, that the medical opinions the judge adopted compel a finding of partial disability. Finding error, we sustain the appeal.
The employee, Angelina Cabral, sustained an industrial injury to her left thumb on March 29, 1991, while working as a packer for Tiffany Company. The judge found, based on the medical opinions of Dr. Wolfort (treating doctor) and Dr. Shields (the insurer doctor), that the employee sustained a 15% loss of functional ability in her left thumb, and that her disability was causally related to her March 29, 1991 injury. (Dec. 10.) The judge further found the employee able to return to the open labor market, but with restrictions. (Dec. 10.) However, the judge ordered the insurer to pay temporary partial incapacity payments only up to the filing date of his decision. We agree with the employee that the termination of benefits as of the filing date was arbitrary and capricious.
It is well settled that discontinuance of benefits must be grounded in evidence contained in the record. Sullivan v. Commercial Trailer Repair, 7 Mass. Workers’ Comp. Rep. 8, 9 (1993), citing Gurley v. Armstrong WorldIndustries, Inc., 4 Mass. Workers’ Comp. Rep. 349 (1990). There is no evidence here supporting the date chosen by the administrative judge to discontinue benefits. Also, as the court said in Scheffler’s Case, the determination of incapacity 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. The nature of the job, seniority status, attitudes of personnel managers and insurance companies, the business prospects of the employer, and the strength or weakness of the economy also influence an injured employee’s ability to hold a job or obtain a new position. Id. at 419 Mass. 251, 256 (1994). The judge should again make factual findings on these vocational factors to the extent that there is record evidence of them.
This incapacity analysis should enable the judge to make a realistic decision about how much the employee, in her injured condition, is able to earn. Lagasse v. Dennison Nat’l, 8 Mass. Workers’ Comp. Rep. 291, 292-293 (1993); Scheffler’s Case, 7 Mass. Workers’ Comp. Rep. 219, 223 (1993); see Frennier’s Case, 318 Mass. Workers’ Comp. Rep. 635, 639 63 N.E.2d 461 (1945). If the physical limitations or vocational condition subsequently changed, then at each change, the judge should reassess the extent of incapacity. Saracino v. Commonwealth, 8 Mass. Workers’ Comp. Rep. 422, 426 (1994).
In summary because we find the decision flawed, we vacate it in part and remand for a new determination of the extent of the employee’s incapacity. In light of the passage of time during the pendency of the appeal, if either party alleges a change in medical condition or vocational skills since the date the record closed or the judge finds that justice so requires, additional evidence may be taken prior to the entry of the remand decision.
So Ordered.
______________________________ Administrative Law Judge Suzanne E.K. Smith
______________________________ Administrative Law Judge Edward P. Kirby
______________________________ Susan Maze-Rothstein Administrative Law Judge
Filed: February 2, 1996