Board Number: 103810-86Commonwealth of Massachusetts Department of Industrial Accidents
Filed: January 23, 1995
REVIEWING BOARD:
Judges Fischel, McCarthy, and Wilson.
APPEARANCES:
Michael F. Walsh, Esq., for the employee.
Russell Gilfus, Esq., for the self-insurer.
FISCHEL, J.
The employee appeals from the decision of the administrative judge finding that she failed to meet her burden of proving that she remained physically disabled from her former occupation as a secretary and denying and dismissing her claim. We recommit this case to the administrative judge because we agree that the judge’s conclusions are not supported by his subsidiary findings.
After the employee injured her back when she slipped and fell at work on July 11, 1986, she did not return to work and received workers’ compensation benefits under § 34 until they expired on July 11, 1991. (Dec. 4, 5.) After exhaustion of § 34 benefits, the employee sought further compensation under § 34A of the Act. When the judge denied the claim at conference the employee appealed for hearing de novo, at which the self-insurer raised the issue of extent of incapacity and invoked the provisions of § 35E.[1]
The judge found that the employee, a then-68-year-old widow, had not intended to retire at age 65 and had “hoped to remain with the Commonwealth for as long as her health permitted” because she liked her work and fellow employees and needed the money. (Dec. 4, 6.) He further found that the employee complained of low back, left leg, and shoulder pain, as well as headaches, had trouble sleeping, could not walk more than two blocks, could sit no longer than forty minutes before onset of pain, and took pain medication. (Dec. 6.) However, the judge found that while the employee did “not believe herself physically capable of returning to her job’s prolonged sitting,” she believed “she could work on a part-time basis, all things being equal, if allowed to sit or stand at will.” (Dec. 7.)
The judge also considered the medical opinions of two doctors. Dr. Grady, an orthopedic surgeon who examined the employee twice on behalf of the self-insurer, opined that the employee suffered from chronic lumbar strain caused by prolonged sitting required by her job and that her condition rendered her permanently and totally disabled from all work. (Dec. 7.) Dr. Walsh, an orthopedic surgeon testifying for the employee, found no objective evidence of spinal impairment and opined that the employee was capable of returning to her clerical duties. (Dec. 8.) A vocational expert deposed on behalf of the employee opined that the employee was permanently and totally disabled vocationally. (Dec. 8.)
After making the above findings, the judge denied and dismissed the employee’s claim for failure to establish continuing disability by a preponderance of credible evidence. The decision is wholly inadequate to support the judge’s conclusion because it fails to comport with the requirement of § 11B that the judge set forth the issues in controversy, the decision on each, and the grounds to support each conclusion. See Praetz v. Factory Mutual Engineering Research,
7 Mass. Workers’ Comp. Rep. 45 (1993). The decision in this case does not set forth the judge’s conclusions on extent of disability nor on the § 35E issue; it merely recites testimony and medical evidence and provides no finding as to what medical evidence was adopted.
We note that the judge credited the employee’s testimony that she would continue at her job as long as her health permitted (Dec. 6), so some explanation is needed for his conclusion that implies she did not return to work although her health permitted. We note further that the judge had found that the employee could not sit longer than forty minutes before needing pain medication, and that he found she could not walk more than two blocks. His conclusion that she was nonetheless fully able to return to her past work does not appear to be supported by his subsidiary findings.
As it stands, the decision does not provide an appellate board with sufficient findings on which to determine whether he followed correct principles of law in making his ultimate conclusion of non-compensability. Therefore, the case is recommitted to the administrative judge for further findings on the issues of extent of incapacity and § 35E.
Judges McCarthy and Wilson concur.
8 Mass. Workers’ Comp. Rep. 432 (1994). The judge also heard the testimony of Alice Aaronian, a corroborating witness, who testified that the employee had told Aaronian that she intended to work beyond age 65. The judge made no findings on the § 35E issue. On remand, the judge should make findings pursuant to § 35E.