William Nicholson, Employee v. Consolidated Freightways, Employer, Consolidated Freightways, Self-Insurer

BOARD No. 06180991Commonwealth of Massachusetts Department of Industrial Accidents
Filed: January 31, 1997

REVIEWING BOARD DECISION

(Judges Fischel, Wilson and Kirby)

APPEARANCES

Thomas J. Donoghue, Esq., for the employee.

Douglas F. Boyd, Esq., for the self-insurer.

WILSON, J.

The employee appeals from a decision of an administrative judge reducing weekly incapacity payments on the self-insurer’s request for discontinuance or modification of the employee’s compensation benefits. The employee argues that the judge erred by apparently failing to consider the employee’s nonwork-related heart impairment in his assignment of an earning capacity of $650.00 on a stipulated average weekly wage of $924.72. Because, on the record before us, the employee’s nonwork-related heart condition is irrelevant to the judge’s assessment of the impairment of the employee’s earning capacity due to his work-related back injury, the employee’s appeal on this ground has no merit. We disagree as well with the employee’s contention that the judge erred by ordering recoupment and summarily affirm that part of the decision.

The self-insurer accepted the employee’s August 9, 1991 injury to his back, which arose out of and in the course of his employment as a truck driver. (Dec. 2-3.) The self-insurer subsequently filed a complaint for modification or discontinuance of its weekly payments for temporary, total incapacity, which request was heard by the judge at a § 10A conference on December 15, 1993. As a result of that conference, the self-insurer was authorized to modify its weekly incapacity payments, and was ordered to pay § 35 partial incapacity benefits based on the stipulated average weekly wage of $924.72 and an earning capacity of $200.00 per week. The self-insurer appealed to a hearing de novo. (Dec. 1.)

The employee underwent a § 11A impartial medical examination, conducted by Dr. Robert E. Edkin on February 22, 1994. (Dec. 4.) Dr. Edkin opined that, although the employee’s work duties set off his back injury, the employee’s back pain was due to a general aging process (the employee was sixty-one years old at the time of the hearing), which resulted in degenerative arthritis. (Dec. 3, 5.) Dr. Edkin considered the employee to be restricted from long distance truck driving due to the risk of an aggravation. Dr. Edkin also reported the employee’s treatment history, stating that, as of September 1993, Dr. Paul L. Filippini opined that the employee suffered from a partial medical disability causally related to his industrial injury. Dr. Edkin further restricted the employee from repetitive bending or lifting, and from lifting more than fifty pounds occasionally, and twenty to thirty pounds more frequently. Dr. Edkin said that the employee should be allowed to stand or sit at will if he had back pain, and that the employee could do short distance hauling with minimal difficulty. (Dec. 5.)

The employee suffered from a heart condition which had necessitated bypass surgery in 1972, and again in 1992. The employee did not claim that his heart surgery was causally related to his employment. (Dec. 4.)

The judge adopted Dr. Edkin’s opinion on restrictions. (Dec. 5.) The judge, noting that the employee can sit comfortably, (Dec. 4), concluded that he was able to perform his normal employment of truck driving, but was partially incapacitated, being limited to short distance or local hauling. The judge assigned the employee an earning capacity of $650.00 per week, effective September 1, 1993, the date of the examination and opinion of the employee’s physician, Dr. Filippini.[1] (Dec. 6.) He also ordered recoupment in the amount of $35.00 per week to be deducted from the employee’s continuing partial incapacity payments. (Dec. 7.)

The employee maintains on appeal that the judge’s assignment of a $650.00 earning capacity was arbitrary and capricious, particularly in view of his non-work-related heart impairment. We think not.

At the outset, we note that the judge was entitled to use his own knowledge and judgment in determining the employee’s earning capacity, since there was no direct evidence presented regarding the issue. See Mulcahey’s Case, 26 Mass. App. Ct. 1, 3 (1988);O’Reilly’s Case, 265 Mass. 456, 458 (1929); Andrews v. UniversalFood, Inc., 6 Mass. Workers’ Comp. Rep. 1, 3 (1992); Tenerowitz v.Francis Harvey Sons, 10 Mass. Workers’ Comp. Rep. 76, 77 (1996). We cannot say it was arbitrary or capricious for the judge to assign a $650.00 earning capacity to an experienced truck driver with a $924.72 average weekly wage, who can sit comfortably and do short distance hauling with minimal difficulty.

The employee’s contention that the $650.00 earning capacity does not take into account the employee’s heart impairment is misplaced. “[Any d]isability due to a heart disease, having been found not to have a causal connection with the injury, cannot be considered in determining whether the condition of [the employee’s back] has rendered him . . . disabled.” Hummer’s Case,317 Mass. 617, 623 (1945). As the Supreme Judicial Court recently observed: “`The goal of disability adjudication is to make a realistic appraisal of the medical effect of a physical injury on the individual claimant and award compensation for the resultant impairment of earning capacity, discounting the effect of all otherfactors . . .'” Scheffler’s Case, 419 Mass. 251, 256 (1994), quoting L. Locke, Workmen’s Compensation, § 321, at 376 (2d ed. 1981) (emphasis supplied). To be sure, were there evidence in this case that the “pre-existing heart disease of the employee [was] accelerated to the point of disablement by the exertion and strain of employment, not due to the character of the disease acting alone or progressing as it would in any rational work,” we would see grounds for recovery. Madden’s Case, 222 Mass. 487, 496, (1916). But that is not the evidence before us. Nor is this a case where there is medical evidence that the employee has a greater incapacity than that found by the judge as the result of two conditions, one of which arose out of and in the course of employment, the effects of which cannot be separated. SeeGallant’s Case, 329, Mass. 607, 608 (1953). In this case, this “as is” employee failed to present evidence to meet his burden of proof on how his 1972 heart surgery bore on his post injury capacity for work. Compare Gallant’s Case, id. (where there was medical testimony that the employee was prevented from doing heavy work both by his work-related impairment and by a previously existing heart condition, the effects of which were inseparable, incapacity benefits were awarded based on both conditions). The 1992 heart surgery, occurring post-injury and not bearing any relationship to the August 1991 injury, is not considered in the earning capacity analysis.

“Hence, the judge’s task is to view the circumstances with something akin to tunnel vision and to narrowly focus on and determine the extent of physical injury or harm to the body that is causally related solely to the work injury.” Patient v. Harrington Richardson, 9 Mass. Workers’ Comp. Rep. 679, 683 (1995). We see no error in the judge’s analysis of this employee’s earning capacity, which correctly focused only on the work-related back impairment and its effect on the employee.

The employee appeals the judge’s order that the insurer recoup overpayments by means of a $35.00 reduction of the employee’s weekly incapacity payments. We summarily affirm that order.

So ordered.

______________________________ Sara Holmes Wilson Administrative Law Judge
______________________________ Carolynn N. Fischel Administrative Law Judge
______________________________ Edward P. Kirby Administrative Law Judge

Filed: January 31, 1997

[1] The judge adopted the opinion of the employee’s medical expert, Dr. Filippini, regarding the causal relationship between the employee’s partial medical disability and the industrial injury. (Dec. 5.) At hearing, the employee failed to pursue his motion for a finding of inadequacy of Dr. Edkin’s impartial medical report, which the judge directed the parties to file in writing after the doctor’s deposition on August 1, 1994. (Dec. 3.) The judge found that Dr. Edkin’s opinion was the exclusive prima facie
medical evidence in the case. (Dec. 2.) See G.L.c. 152, § 11A(2). Therefore, any reliance on Dr. Filippini’s opinion, not in evidence and merely restated in Dr. Edkin’s report, was error.

We do not decide the issue this presents, however, as neither party has argued it on appeal. We particularly note that the insurer could have appealed the decision on the basis that Dr. Edkin’s opinion failed to causally relate the employee’s present medical disability to his industrial accident. As the insurer filed no appeal, we pass over the error.

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