CRUZ v. CORPORATE DESIGN CO., No. 06020189 (Oct. 31, 1995)

BOARD No. 06020189Commonwealth of Massachusetts Department of Industrial Accidents
Filed: October 31, 1995

REVIEWING BOARD DECISION

(Judges Fischel, McCarthy and Wilson)

APPEARANCES:

Joseph A. Miragliotta, Esq. for the employee.

Paul M. Moretti, Esq. for the insurer.

FISCHEL, J.

In this appeal the employee presents the question of whether the assignment of an earning capacity by the administrative judge was arbitrary or capricious because it was allegedly unsupported by the evidence. We recommit the case for further findings, as we are unable to determine the basis for the judge’s assignment of the earning capacity.

The employee injured his back while working on November 6, 1989. The insurer accepted the claim and paid § 34 incapacity benefits, as well as medical benefits under §§ 13 and 30. The insurer filed a Request for Modification or Discontinuance, which request was denied at conference on April 27, 1992. The insurer then appealed to a hearing de novo. (Dec. 3-4)

After hearing the judge filed a decision on April 28, 1994. Under the caption “subsidiary findings of fact”, the decision contains nineteen pages of recitations of testimony.[1] In this case, the ratio of recitation of testimony to findings is extremely lopsided, seeMessersmith’s Case, 340 Mass. 117, 119 (1959), leading to an unclear record for our review. The following recitations were uncontradicted, and we take them to be intended as subsidiary findings of fact: that the employee was 37 years old, that he had a seventh grade education, that he never learned to read, that he is blind in his right eye, that he has had no driver’s license since 1983, that he had no special training and had done just “survival work” as a machine puncher, landscaper, and at the time of his industrial accident, a warehouseman. (Dec. 4, 5, 6)

The judge recites the following evidence related to the employee’s medical condition: the employee had two surgeries because of the industrial injury to his back, the first, an L5-S1 laminectomy on April 4, 1990, the second, an L5-S1 fusion on May 31, 1991. After the two surgeries, scarring intruded on the nerve roots at three different levels.(Dec. 12) Neither operation alleviated the employee’s pain. (Dec. 18, 21) Both doctors who testified indicated that there were objective findings that supported the employee’s claims of pain.(Dec. 22)

The judge noted that both doctors felt that the employee could not return to his prior laboring work. (Dec. 12, 22) As to any physical capacity for other work, the employee’s doctor had no opinion as to whether the employee could be trained to do lighter work (Dec. 12), and the insurer’s doctor felt such lighter work was possible, assuming restrictions against lifting and bending, frequent opportunities for changes in his position and posture, and “[d]epending upon the employee’s ability to tolerate pain in the employee’s upper extremities.” (Dec. 24)

The judge made several findings as to the medical evidence. First, he specified that “I find Dr. Thakur’s testimony compelling . . . that the employee has pain. . . .” (Dec. 15) Secondly, he specifically found that the employee’s “disability following his accident was causally related to the described accident.” (Dec. 27)

The decision had recited the employee’s post injury complaints: that the employee had constant back pain, that he cannot sleep, that he cannot stand or sit in one position for any length of time, that he was limited in his ability to walk because of back pain and numbness in his legs, that he takes medications for pain, which inflict him with various side effects, that the surgery had not helped him feel any better, and that he did not feel able to return to work. (Dec. 4-6) In a specific later finding, the judge credited the employee’s account of his disability following his industrial accident. (Dec. 27) We take this to mean that the judge believed the employee’s complaints.

Where, as here, the judge credited the employee’s testimony regarding pain, and the medical evidence was that ability to do any work depended on his capacity to tolerate pain, a determination as to his work capacity in view of that pain was necessary. This was not done.[2]

It would then be the fact finder’s task to determine the impact of the medical disability on any earning capacity, taking into consideration non-medical, vocational factors. Frennier’s Case, 318 Mass. 635, 639
(1945); Scheffler’s Case, 419 Mass. 251, 256 (1994). No such assessment was made, and no mention is made of how the employee’s particular vocational limitations bear on the issue of post-injury earning capacity.

Based solely on his adoption of the medical expert who opined that the employee could do some work with restrictions, and without dealing with that aspect of the adopted physician’s opinion which made such medical capacity “depend[ent] upon the employee’s ability to tolerate pain in the employee’s upper extremities”, the judge assigned the employee an earning capacity of $250.00 per week on his stipulated average weekly wage of $314.34, effective two years retroactively to April 20, 1992, the date of the insurer doctor’s exam.[3]

We find inconsistency in the judge’s crediting the employee’s testimony regarding his work related incapacity, which included testimony that he could not work, and yet assigning the employee an earning capacity that nearly matches the employee’s modest average weekly wage. (Dec. 5, 27) Internally inconsistent findings which go to the heart of the issue presented are arbitrary, and cannot stand.

Here, where there has been no analysis of the impact of non-vocational factors, we do not think that the earning capacity that the judge assigned flows from a “reasoned consideration of the employee’s age, education, training, work experience, mental capacity and any other factors relevant to an ability to perform remunerative work.” Costa v. AT T Technologies, 8 Mass. Workers’ Comp. Rep. ___ (October 4, 1994); Frenniers’ Case, supra;Scheffler’s Case, supra. In a case such as this, where the undisputed evidence tends to show that the employee is rather severely limited in his vocational options, due to seventh grade education, his inability to read, his blindness in one eye, and his work history in heavy labor which he cannot return to as a result of the back injury, “explicit findings would have been appropriate concerning the type and amount of `light adjusted work’ which the employee is now capable of doing.” Ballard’s Case, 13 Mass. App. Ct. 1068, 1069 (1982). As in Ballard, the judge’s findings regarding the extent of this employee’s impairment “rely too heavily on rather indefinite medical opinions.” Id.

We are aware, of course, that “in the absence of testimony as to earning capacity of the employee, [the judge is] entitled to use [his] own judgment and knowledge in determining that question.” O’Reilly’s Case, 265 Mass. 456, 458 (1929). Further, “[t]he judge was not precluded from using his own knowledge of practical affairs or applying his judicial sense to the consideration of a matter of such common occurrence as securing employment.” Id. However, the “practical affair” of an illiterate, partially blind and otherwise physically disabled worker, who has done nothing but heavy labor and factory work all of his life, reentering the work force with the limitation that he can no longer perform that kind of work, is daunting. See Id. “It is difficult to equate the profile of this employee drawn from the subsidiary findings of fact with the award of an earning capacity of $[250.00] per week.” Mello v. J JCorrugated Box Corp., 9 Mass. Workers’ Comp. Rep. ___ (September 5, 1995). Here, as in Mello, supra, “[w]e are hard pressed to find any subsidiary findings supporting the award of an earning capacity.” Id. Where the judge’s conclusions regarding earning capacity apparently fail to take into account such factors as these just mentioned, it is the duty of this board to inquire, “Why?” The dictate of O’Reilly’s Case, supra, cannot be made to supercede an appropriate analysis of the factors listed in Frennier’sCase, supra, and Scheffler’s Case, supra. See also Ballard’s Case,supra.

We are at a loss as to how the judge ended up where he did. “When we can only speculate about the judge’s reasoning and basis for his general conclusions, the appellate review to which the claimant is entitled is not possible.” Crowley v. Salem Hospital, 8 Mass. Workers’ Comp. Rep. ___ (1994).

We recommit this case[4] to the administrative judge for more complete and consistent findings as to the extent of the employee’s incapacity for employment. In view of the passage of time, it would be appropriate for the judge to allow current medical evidence to be submitted. The judge may take additional testimony as he feels is necessary to the proper disposition of this issue.

So ordered.

____________________________________ Carolynn N. Fischel Administrative Law Judge
____________________________________ William A. McCarthy Administrative Law Judge
____________________________________ Sara Holmes Wilson Administrative Law Judge

Filed: October 31, 1995