Board No. 083541-87Commonwealth of Massachusetts Department of Industrial Accidents
Filed: October 30, 1996
REVIEWING BOARD DECISION
(Judges McCarthy, Smith, and Maze-Rothstein)
APPEARANCES
William H. Murphy, Esq., for the Employee at hearing.
Paul M. Moretti, Esq., for the Employee on brief.
Ralph Cafarelli, Esq., for the Employer.
McCARTHY, J.
On November 10, 1987, Eugene Marckini a carpenter, now fifty-nine years of age, lifted a five hundred pound tool box onto a dolly with a co-worker. The co-worker slipped, which caused the tool box to jolt Mr. Marckini downward, injuring his back. (Dec. 3.)
The insurer originally accepted the case and paid temporary total incapacity benefits pursuant to § 34 of G.L.c. 152. On March 18, 1992, the employee filed a claim for § 34A permanent and total incapacity benefits. (Dec. 3.) Following a conference an administrative judge, on October 13, 1992, denied the § 34A claim and instead ordered payment of partial incapacity benefits under § 35 at the rate of $411.00 per week from November 10, 1992 and continuing and assigned an earning capacity of $200 per week. Both the employee and insurer appealed this order and the case was returned to the same administrative judge for hearing.
On November 11, 1987, the day after the industrial injury, the employee went to Lawrence Memorial Hospital and was referred to an orthopedic surgeon, Dr. Walsh, who prescribed a back brace, anti-inflammatory agents and physical therapy. (Dec. 6.) He was then referred to Dr. Kenneth Polivy, an orthopedic surgeon, and later to Dr. John C. Molloy, also an orthopedic surgeon. Id. Mr. Marckini has undergone a CAT scan and an MRI. These tests revealed a chronic low back strain, traumatic arthritis, and Grade I spondlylolisthesis at L5-S1. (Dec. 6.)
Dr. Joel Saperstein, appointed the impartial medical examiner under § 11A, examined the employee on December 14, 1992 and diagnosed a “traumatic back strain with chronic, progressive osteoarthritis of the low back, superimposed upon preexisting, and previously asymptomatic spondlylolisthesis”. (Dec. 6.) Dr. Saperstein stated that the condition became symptomatic, as a result of the industrial accident. He opined that the employee’s entire symptom complex was related to his accident of November 10, 1987 and that the employee was permanently and totally disabled from working as a carpenter. Id.
Following the full evidentiary hearing, the administrative judge in his decision ordered partial incapacity benefits from November 3, 1992 and continuing at the rate of $411.00 per week based on an average weekly wage of $934.00 and an earning capacity of $180.00. (Dec. 9.) We have the case on appeal by the employee who contends that the decision is arbitrary and capricious and is based on subsidiary findings that are conflicting and insufficient. (Employee’s Br. 12.) Specifically, the employee asserts that the judge was inconsistent when he credited the opinion of Dr. Saperstein, who noted that the employee’s pain could occur in a haphazard manner, (Dec. 8, Saperstein Dep. 7), while also crediting the employee’s testimony that he suffers from continuous back pain on the lower left side. (Dec. 8, emphasis added.) These two statements are facially inconsistent and require clarification. See Anderson’s Case,373 Mass. 813 (1977).
The employee next argues that the decision lacks sufficient findings regarding the range and types of activities the employee is capable of performing, and which would be commensurate with his earning capacity. (Employee’s Br. 14.)[1] Although the judge claims to have taken into account the age, education, training and work history of the employee, in concluding that he is partially incapacitated, the analysis is incomplete. The judge has not stated the grounds for his determination that Mr. Marckini could earn $180.00 per week. § 11B; Brinton v. Cityof Lynn, 9 Mass. Workers’ Comp. Rep. 556 (1995).
It is well settled that “the determination of loss of earning capacity involves more than a medical evaluation of the employee’s 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 effect of injury.” Mello v. J J Corrugated Box Corp.,
9 Mass. Workers’ Comp. Rep. 512, 514 (1995), citing Sheffler’sCase, 419 Mass. 251, 256 (1994). According to the administrative judge, the employee suffers from continuous back pain on the lower left side (Dec. 8); he can perform light housework on good days and is able to walk one half a mile, but there are “bad days” where he cannot get out of bed (Dec. 8); he suffers from a traumatic back strain with chronic progressive osteoarthritis of the low back superimposed upon a preexisting previously asymptomatic spondylisthesis (Dec. 7); he is permanently and totally medically disabled from working as a carpenter (Dec. 7); and his back condition is chronic and likely to worsen (Dec. 7.) Mr. Marckini has a high school education and his “relevant employment history” is in construction work. (Dec. 5.)
The logic behind the judge’s conclusion that the employee had an earning capacity of $180.00 per week is not readily apparent. As the Appeals Court stated:
“[S]pecific and definite findings” (Judkins’ Case, 315 Mass. 226, 227 [1943]), which are supported by evidence, are essential to a proper determination of questions of incapacity. For example, explicit findings would have been appropriate concerning the type and amount of “light adjusted work” which the employee is now capable of doing. Compare Cierri’s Case, 379 Mass. 914 (1979). The single member’s findings here apparently rely too heavily on rather indefinite medical opinions. In the circumstances the findings must go beyond the medical opinions (see Frennier’s Case, 318 Mass. at 639) and identify the type of work the employee is capable of performing within the scope of those opinions.
Ballard’s Case, 13 Mass. App. Ct. 1068, 1069 (1982).
What then is the appropriate disposition of this case? The choices available to the reviewing board are explicit and limited. See § 11C. There are three. The reviewing board may affirm an administrative judge’s decision (either summarily or by written decision). Second, it may recommit to the hearing judge for further findings of fact when appropriate. Were the judge who heard and decided this case still serving as such, we would follow this course. Since he is not, we must fit our disposition into the third and final remedy available to us under § 11C. And that is to “reverse the decision of an administrative judge only if it determines that such administrative judge’s decision is beyond the scope of his authority, arbitrary or capricious, or contrary to law.” To the extent that the decision — by agreement of the disputants — lacks findings which explain the basis for the award of an earning capacity, it is arbitrary and capricious. Accordingly, we reverse it. We return the file to the senior judge for reassignment to a new administrative judge for hearing de novo on the cross appeals from the conference order. Until a new decision is filed the insurer shall continue to pay weekly incapacity benefits under § 35 at the rate of $411.00.
So ordered.
________________________ William A. McCarthy Administrative Law Judge
________________________ Susan Maze-Rothstein Administrative Law Judge
Filed: October 30, 1996
Smith, J. concurring.
I concur in the order of recommittal. It is appropriate to recommit this case for further findings of fact on the extent of the employee’s post-injury earning capacity because the judge made subsidiary findings which appear to be inconsistent with his general conclusion.
As we said in Medley v. E.F. Hauserman Co., 7 Mass. Workers’ Comp. 97 (1993), an employee has the burden of proving the nature and extent of his incapacity. Ginley’s Case, 244 Mass. 346, 348, 138 N.E. 719 (1923). Once the judge has determined that the employee has shown only partial limitations on his work activities and not a total inability to work, in the absence of direct testimony as to the amount the employee is able to earn with those limitations, the judge is entitled to use his own judgement and knowledge in determining the extent of partial incapacity. Where, as here, the evidentiary record is limited and would not enable an administrative judge to identify particular jobs which are within an employee’s limited ability to perform and which are in fact available, the judge is not required to make findings with respect to alternative lines of work. The employee will not be heard to complain about the paucity of a record which it is his burden to establish. Mulcahey’s Case,26 Mass. App. Ct. 1, 3, 522 N.E.2d 431, 432 (1988), review den. 402 Mass. 1105, 525 N.E.2d 678 (1988); Nowak’s Case,2 Mass. App. Ct. 498, 500, 314 N.E.2d 455 (1974); O’Reilly’s Case,265 Mass. 456, 458, 164 N.E. 440 (1928). Although the judge must disclose his reasoning process in his decision, his determination of the level of incapacity, if not arbitrary and capricious, is final. G.L.c. 152, § 11C.
When neither party presents direct evidence of the earnings available to the employee for the range and type of work activity which he has regained the ability to perform, the judge is left to estimate the employee’s earning capacity. Absent an offer of suitable work that would trigger the provisions of § 35D(3), the judge may conclude, as a matter of law, that incapacity has diminished only if he determines, as a matter of fact, that the employee is realistically employable in the competitive labor market. Lagasse v. Dennison National,
8 Mass. Workers’ Comp. Rep. 291, 293 (1994); G.L.c. 152, §§ 35, 35D(4). If he isn’t, then the judge is compelled as a matter of law to award total incapacity benefits. G.L.c. 152, §§ 34 and 34A.
The decision fails to explain how this individual could be considered to be a reliable worker who would be capable of obtaining employment in the competitive labor market. The conclusion that the employee is “capable of performing remunerative work of a substantial character that is not trifling in nature” which will produce earnings of $180.00 per week (Dec. 9) conflicts with the subsidiary factual findings that are well grounded in the record. According to the impartial medical examiner, the employee has a traumatic back strain with chronic, progressive osteoarthritis of the low back superimposed upon preexisting, previously asymptomatic spondylolisthesis, now rendered symptomatic by the injury. (Impartial Report, 3; Dep. 13, 20.) The employee has only the capacity to perform sedentary work part-time, two to four hours per day, three to four days per week. (Impartial Report, 3; Dep 15.) The doctor found it probable that “if he were engaged in activities of this nature in a sedentary employment situation, that this pain could come on in a haphazard manner so as to require him to stop working for a period of time.” (Dep. 22-23.) The doctor conceded the obvious: that such a condition would be a hindrance to his employment in the open labor market. (Dep. 23.)
To successfully return to work the employee required a very structured setting with a number of accommodations. (Id.) If “a structured job can be found to accommodate his problems, he still may have difficulty with that and may not be able to progress.” (Dep. 25.) The employee is unable to return to his pre-injury employment as a carpenter. (Impartial report, 3; Dep. 26.) The employee, whose pain the judge found credible, did not feel capable of performing any remunerative labor because of activity-ignited pain. (Tr. 16-17.) He has worked as a military police officer, construction worker, and working carpenter foreman. (Dec. 5.) All these prior jobs are prohibited by the effects of the work injury. (Dec. 6.)
The fact that the impartial medical examiner found the employee to have “haphazard” pain was consistent with finding that the employee’s pain was continuous. The employee had pain brought on by biomechanical activity, coughing, sneezing and bending. (Dep. 8, 17.) Often it was impossible to identify the pain trigger. The doctor testified: “[H]e could sit for haphazard periods of time. It would be comfortable, but then for no reason at all he would have to get up and move around because of vague discomfort in his lower back which would radiate into his left leg.” (Dep. 8.) This testimony was consistent with that of the employee: “On the lower left side of my lower back, there’s almost continuous pain; and in the last year or so, I’ve had a pain shooting down my left leg that goes into my foot and it can get very excruciating.” (Tr. 12.) “If I move the wrong way, I end up in bed for two or three days.” (Tr. 17.) The employee did not testify to pain every minute of every day, but pain provoked by activity: “Anytime that I have been foolish enough to try to do something strenuous.” (Tr. 17.) He had good and bad days, with “the majority of the days bad.” (Tr. 13, 15.) Based upon this evidence the judge could rationally conclude that “the haphazard nature of physical labor (e.g. lifting, climbing, stretching, odd positions) could exacerbate the Employee’s symptoms” while also crediting the employee’s testimony about his pain. (Dec. 8.)
These subsidiary findings regarding the employee’s diagnosis, limitations and pain are inconsistent with the conclusion of regained earning capacity. We therefore cannot accomplish our task under G.L.c. 152, § 11C to determine with reasonable certainty whether correct rules of law have been applied to facts that could properly be found. See Praetz v.Factory Mut. Eng’g Research, 7 Mass. Workers Comp. Rep. 45 (1993). Absent clear and consistent findings on pivotal issues, recommittal is warranted. G.L.c. 152, § 11C; Dawson v. NewEngland Patriots, 9 Mass. Workers’ Comp. Rep. 675, 676 (1995).
It is our normal practice to recommit the case to the senior judge for reassignment to a different administrative judge for hearing de novo when the hearing judge no longer serves in the department. I concur in this result. The judge on remand may, in the interest of judicial economy and efficiency, decide the case, insofar as practicable and where there is no issue of witness credibility, on the transcript and extensive evidence admitted by the former judge. See Flaherty v. Browning-Ferris Ind., Inc.,
9 Mass. Workers’ Comp. 630, 632 (1995). Nevertheless, 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, the judge may take additional evidence.
________________________ Suzanne E.K. Smith Administrative Law Judge
Filed October 30, 1996