BOARD No. 7353490Commonwealth of Massachusetts Department of Industrial Accidents
Filed: March 27, 1996
REVIEWING BOARD DECISION
(Judges Maze-Rothstein, Smith and Kirby)
APPEARANCES
Michael Akashian, Esq., for the employee at hearing and on brief
John Preston, Esq., for the insurer at hearing
MAZE-ROTHSTEIN, J.
We have the employee’s appeal from a decision ordering a series of prospective earning capacities followed by a termination of all benefits on a date certain. Finding an error of law, we affirm in part and vacate and remand in part.
On November 15, 1990 the employee injured her low back when she slipped and fell down a flight of stairs while working as a bank teller at the Boston Five Cents Savings Bank. The insurer initially accepted the case and paid G.L.c. 152, § 34 temporary total incapacity compensation continuously from the injury date onwards.
Eventually, the insurer filed a complaint to discontinue benefits. After a § 10A conference, the judge instead ordered the employee’s benefits modified. She was assigned a $175.00 minimum wage earning capacity based on a stipulated $445.60 average weekly wage yielding a $187.07 § 35 weekly benefit rate from June 23, 1992 and continuing. The insurer appealed to an evidentiary hearing held on January 27, 1993. The only disputed issue at hearing was the degree of incapacity and the extent of the employee’s earning capacity.
We summarize the employee’s pertinent testimony found credible by the judge. At the time of the January 27, 1993 hearing, the employee worked every other day at Milano’s Bakery, a business owned by her brother. (Dec. 4-6.) Her job functions included managing co-workers at the counter, taking orders, limited customer service, and picking up individual pastries. The job required no heavy lifting. (Dec. 5.) The employee could not sit, stand, or do extensive walking without experiencing pain. (Dec. 5.) She was severely limited from her former level of activity.Id.
The judge found that the employee’s actual earning capacity from November 9, 1992 — when she began working at Milano’s Bakery — to March 19, 1993, averaged 24 hours weekly at $6.00 per hour. This yielded a $187.07 § 35 compensation rate. March 19, 1993 was the deposition date of Dr. Charles Wright, whose opinion the judge adopted. (Dec. 6; see Employee’s Ex. 2).
At the hearing, each party submitted their own medical expertise. See 452 Code. Mass. Regs. 1.10 (5), (6), (7) (whereby parties may agree to opt out of § 11A procedures). After reviewing the medical evidence, the judge found Dr. Wright’s opinion probative and persuasive. (Dec. 7.) Dr. Wright, an orthopedic surgeon, diagnosed a low back disc injury with evidence of left sided nerve root irritation causally related to the November 15, 1990 fall. (Dec. 7, 8.) He testified that her treatment, which included physical therapy, had progressively increased the employee’s range of motion and ability to work. (Dec. 7.) The doctor encouraged the employee to continue her exercises and to increase her activities including swimming and walking. (Dec. 8.) Dr. Wright imposed restrictions consistent with the employee’s testimony. He prohibited her from sitting and standing for long periods of time, from lifting heavy objects, and indicated that she must be able to get up and move around frequently with the ability to lie down periodically. Id. The judge found:
Dr. Wright particularly convincing when he opined: I’d like to be able to say you know, go to full duty, be as active as you want to be, but I don’t think she can. She hasn’t shown any marked change in her overall functional capacity in the last, I’d say, six months. (Dec. 7.)
Based on the evidence, the judge concluded that the employee had an ongoing partial incapacity which could reasonably be expected to end on or about December 22, 1993 “when an increase in her activities (as recommended by the treating physician) should return her to her pre-injury average weekly wage based upon her age, education and work experience.” (Dec. 11.)
The judge ordered § 35 weekly compensation based on an elaborately structured prospective earning capacities time table that incrementally increased up to the December 22, 1993 termination date as follows:
a. $123.24 per week from September 7, 1992 to November 8, 1992.
b. $144.00 per week form November 9, 1992 to March 19, 1993.
c. $225.00 per week from March 20, 1993 to June 20, 1993.
d. $300.00 per week from June 21, 1993 to September 21, 1993.
e. $375.00 per week from September 22, 1993 to December 22, 1993.
While noting that it was rare for her to issue prospective earning capacities and then a discontinuance, she stated:
The increase is based in part upon Dr. Wright’s opinion of March 19, 1993 that the Employee should increase her activities as well as the reasonable expectation that her salary would increase based on her length of tenure with the bakery. I also considered the fact that she could return to a higher hourly wage in banking if only on a part-time basis initially until she had increased her capacity to return full-time. (Dec. 9.)
A judge may determine that over time an employee’s incapacity has varied, based on the requisite medical and vocational elements, with a corresponding earning capacity fluctuation. Pernorio
v. ARA-Smith Transfer, 8 Mass. Workers’ Comp. Rep. 113, 114 (1994) and cases cited. See also G.L.c. 152, § 10 (2) (“[n]othing in this section shall restrict the authority of an administrative judge to order . . . that . . . benefits . . . be modified . . . at a particular date in the future”). However, it is well recognized that any dates set forth by an administrative judge to determine earning capacity, or any changes of the same, must be grounded in the evidence. Bursaw v. B. P. Oil Co.,
8 Mass. Workers’ Comp. Rep. 145, 148 (1994) and cases cited;Matthews v. Hollingworth Vose,
6 Mass. Workers’ Comp. Rep. 130, 131 (1993), citing McEwen’s Case,369 Mass. 851, 853-854 (1976).
Dr. Wright’s statement that he would like to be able to say the employee could return to full duty, but that he did not believe she could, is insufficient evidence to base a finding of a prospective earning capacity. See (Dec. 7 (text supra); Dep. 15.) As such we cannot discern the evidentiary foundation for the assignment of earning capacities that would increase in exact amounts over 4 distinct 3 month intervals. See Bursaw supra at 147 n. 4, citing Caron v. Resi Comm. Constr., 6 Mass. Worker’s Comp. Rep. 167, 170 (1992). The dates assigned for prospective increased capacities do not appear to correlate with the actual evidence in the record.
Accordingly, since we can only find a medical and evidentiary basis for the assigned earning capacity commencing on November 11, 1992, when the employee began work at the bakery, we affirm the judge’s the $187.07 § 35 weekly compensation award as of that date. Because said figure was correctly assessed, we order that pending the remand decision, it be reinstated on a continuing basis. Because the findings underlying the other prospective earning capacity increases are inadequate for appellate review, we vacate all subsequent orders. We remand for an evidentially based assessment of capacity thereafter. See G.L.c. 152, § 35D. If justice so requires, the administrative judge may take additional evidence to bring current said evaluation.
So ordered. ________________________ Susan Maze-Rothstein Administrative Law Judge
________________________ Edward P. Kirby Administrative Law Judge
________________________ Suzanne E.K. Smith Administrative Law Judge
Filed: March 27, 1996