BOARD No. 04051891Commonwealth of Massachusetts Department of Industrial Accidents
Filed: May 7, 1998
REVIEWING BOARD DECISION
(Judges McCarthy, Maze-Rothstein and Smith).
APPEARANCES
John F. Trefethen Jr., Esq. For the employee.
Richard Mcleod, Esq., for the insurer on appeal.
Lisa M. Carmody, Esq., for the insurer on brief.
McCARTHY, J.
Jeffrey Jenkins, the employee, appeals a decision in which an administrative judge awarded weekly partial incapacity benefits for a closed period. The employee argues that the judge mischaracterized the medical evidence in the case, and failed to support his assignment of an increased earning capacity as of September 22, 1992 with adequate subsidiary findings. We agree, reverse the decision, and recommit the case.
Mr. Jenkins worked two jobs, averaging 65-70 hours per week prior to his industrial accident. (Dec. 6-7.) The employee put in a 40-hour week with his full time employer, a materials handling firm, where his work required repetitive lifting and bending. (Dec. 7.) He worked from midnight until 8:00 A.M. on this job. Jenkins’ part time employment was with a cable television company, where he was a sales representative and worked from 2:00 P.M. until 8:00 or 9:00 P.M. This job required a good deal of driving, but a minimum of lifting. (Dec. 6.) On June 22, 1991, while working for the cable company, the employee injured his lower back when his car was struck from behind. (Dec. 7.) Jenkins began to experience back and left leg pain three to four days later, and stopped working at his heavier duty full time job on July 9, 1991. (Dec. 7-8.) The employee, however, lost no time from his sales representative job with the cable company. (Dec. 8.)
Jenkins claimed weekly partial incapacity benefits from July 9, 1991 to January 21, 1992, and from January 23, 1992 to date and continuing.[1] (Dec. 3-4.) At the hearing the parties stipulated to the occurrence of an industrial motor vehicle accident, as well as the average weekly wages with the cable company, $564.00, and those with the concurrent full time employer, $418.43. (Dec. 5.) The employee’s treating orthopedist, Dr. Francis Waters, opined that the employee was restricted from performing heavy work as a result of both the industrial accident of June 22, 1991 and his pre-existing spinal stenosis. (Dec. 13-14.) However, the doctor felt that Jenkins could work full-time as a sales representative for the cable company as of April 1992. (Dec. 14-15.)
The judge credited the doctor’s testimony and awarded the employee partial incapacity benefits, based on his concurrent employment and wage of $982.43 and a capacity to earn $564.00 per week at his cable job. (Dec. 15, 19-20.) The judge also interpreted Dr. Waters’ testimony as saying the employee could perform his job at the cable company and concurrently work full time at a heavier duty job with weight restrictions as of September 1992. (Dec. 14, 19.) On that basis the judge terminated the award of partial incapacity benefits as of Dr. Waters’ September 22, 1992 examination. (Dec. 19-20.) The employee appeals to the reviewing board.
Jenkins argues that the judge mischaracterized the deposition testimony of Dr. Waters, in that the doctor never opined that the employee had the capacity to work two full time jobs at the same time — one with the cable company and one at a heavier duty position. We agree. The doctor never testified that the employee could return to working two jobs concurrently. Doctor Waters’ opined that the employee was restricted from performing heavy lifting work with a lot of bending and stooping. (Waters Dep. 19, 27.) He further opined that the employee could perform his light duty job with the cable company as of April 1992. If he underwent work-hardening, it was Dr. Waters’ opinion that Jenkins would be capable of restricted duty at a heavier job. (Waters Dep. 35-36.) Dr. Waters’ did not testify that the employee could perform both jobs at once. Just because the employee had been able to maintain a rigorous two job schedule prior to his industrial injury, it does not necessarily follow that he could return to that 65-70 hour work week. See Murphy v. T.W.A., 11 Mass. Workers’ Comp. Rep. 94, 103-104 (1997) (“Considering that the judge found the employee remained partially incapacitated, and could no longer do the [heavy lifting] job at all, we are hard pressed to find a rational basis for the notion that the employee could work up to 80 hours per week. . . .”)
Because the judge erroneously interpreted Dr. Waters’ testimony, we reverse the decision insofar as it terminates weekly partial incapacity benefits on September 22, 1992. As the judge who wrote this decision no longer serves in the department, we transfer the case to the senior judge for reassignment to a different administrative judge for a hearing de novo with respect to the employee’s claim for § 35 benefits on and after September 22, 1992.
So ordered.
____________________ William A. McCarthy Administrative Law Judge
____________________ Susan Maze-Rothstein Administrative Law Judge
Filed: May 7, 1998
SMITH, J., Dissenting.
The employee had the burden of proving that he is not capable, due to his industrial injury, of earning wages equal to or greater than his pre-injury average weekly wage. The judge made rational findings from all the evidence. He did not misconstrue the doctor’s testimony. The judge was unpersuaded of continued incapacity; the record does not compel a contrary conclusion.
An employee seeking weekly wage replacement benefits has a duty to mitigate his wage loss. He may not remain idle when there is available work that he could secure and is able to perform.[2] Akins’s Case, 302 Mass. 562, 565 (1939). The workers’ compensation law does not permit an employee to retire from work that he is capable of performing and have his benefits calculated from his reduced income. Rogers v. Universal Products, Inc., 12 Mass. Workers’ Comp. Rep., slip op. at 8 (April 24, 1998). To the contrary, benefits are provided based on the highest amount of money that an employee is capable of earning after his injury, with a reasonable use of all his powers, mental and physical.Federico’s Case, 283 Mass. 430, 432 (1933); G.L.c. 152, § 35D.
Partial incapacity benefits are not required where the employee does not offer evidence that suitable alternative work paying equivalent to preinjury wages is unavailable. Driscoll’s Case, 243 Mass. 236, 239-240 (1922). To rule otherwise would require payments to be made indefinitely to an employee who, although capable of doing so, chose not to earn wages. In that event, the continuance of his compensation payments “would be wholly artificial, and could be prolonged contrary to fact, at the option of the employee.” Vass’s Case, 319 Mass. 297, 300 (1946). I do not “believe that the Legislature intended that result or has used language requiring it. Id.
The judge’s factual conclusion, that Jenkins is “capable of performing many other types of employment in the open labor market, in addition to his job at Greater Media Cable, which do not involve repetitive lifting,” is rationally based on Dr. Water’s testimony. (Dec. 12-14; Waters Dep. 35-36, 39-41.) Because Jenkins was not working more than five hours per day, (Tr. II, 15), it does not necessarily follow that he couldn’t.[3] The judge found that “[a]t the hearings, the employee appeared to be in good health and in no apparent discomfort.” (Dec. 16.) The judge found that Jenkins simply had not looked for work to replace his lost wages. (Dec. 8.) On this state of the evidence, the judge was not obligated to find that Jenkins was partially incapacitated. SeeMulcahey’s Case, 26 Mass. App. Ct. 1, 2 (1988); Tremblay v. LionPrecision Corp., 6 Mass. Workers’ Comp. Rep. 89, 90 (1992).
Section 35D(4) allowed the administrative judge broad discretion in setting Jenkins’s earning capacity. See, e.g.Sjoberg’s Case, 394 Mass. 458, 460-464 (1985); L. Nason and R. Wall, Massachusetts Workers’ Compensation Reform Act § 8.4, at 181 (Supp. 1995). Based on his experience in applying G.L.c. 152 to a large variety of factual situations, it was fully within the judge’s discretion to set Jenkins’s earning capacity at $982 in a business setting. And, as workers’ compensation benefits are awarded “not for the injury as such but rather for an impairment of earning capacity caused by the injury . . .,” see Zeigale’sCase, 325 Mass. 128, 129-130 (1949), the judge correctly discontinued Jenkins’s benefits when he determined that Jenkins had regained his full pre-injury earning capacity.
Recommittal for a completely new trial is inappropriate when the decision the judge rendered was within the scope of his authority, adequate for appellate review, factually warranted and evidences no legal error. The decision should be affirmed. G.L.c. 152, § 11C.
____________________ Suzanne E.K. Smith Administrative Law Judge