Edmund Reid, Employee v. Westinghouse Electric, Employer, Westinghouse Electric, Self-Insurer

BOARD No. 004703-94Commonwealth of Massachusetts Department of Industrial Accidents
Filed: November 6, 1996


(Judges McCarthy, Maze-Rothstein, and Smith)


George N. Keches, Esq., for the employee.

Charles C. Donaghue, Esq., for the self-insurer at hearing.

Timothy F. Nevils, Esq., for the self-insurer on brief.


Edmund Reid, the employee, is fifty-eight years old, married, and resides in Chatham, Massachusetts with his wife and minor child. He has a tenth grade education and has been employed as a millwright for over twenty-nine years. (Dec. 3.) While a millwright, Mr. Reid has never worked solely for one employer. Through his union, the employee is sent to and hired by various employers. The work involves installing and assembling machinery and equipment, constructing foundations for machines and moving machinery and equipment using hoists, dollies, jacks, and various other hand and power tools in the process. It involves heavy lifting and frequent climbing, kneeling, and squatting. (Dec. 4.)

In January 1994, Mr. Reid was hired by Westinghouse Electric Corporation at its electricity-production plant in Sandwich, Massachusetts. On January 7, 1994, while climbing a cat-walk ladder in the scope of his employment, the employee struck his head on a concrete pedestal causing neck and thoracic pain. (Dec. 4.) An hour or so later, the employee went to the Falmouth Hospital emergency room complaining of pain in the cervical and thoracic spine areas. (Dec. 4.) He was diagnosed with a back strain and prescribed heat and rest. Upon returning to the worksite later that day, the employee was informed that his job was completed and that he had been laid off. (Dec. 4.)

Mr. Reid applied for and received unemployment compensation benefits. (Dec. 5.) In April 1994, he filed under c. 152 for weekly incapacity benefits under §§ 34 and 35 together with specific benefits under § 36 and payment of medical expenses under § 30. The insurer did not accept the case and after a conference under § 10A before an administrative judge an order was issued denying the claim. The employee appealed for a hearing de novo
before the same administrative judge. (Dec. 1.)

At the hearing the self-insurer denied that the employee suffered an industrial injury at work, denied that the employee was entitled to payment of medical expenses and denied that there was any incapacity causally related to the alleged January 7, 1994 industrial injury. On August 26, 1994, Mr. Reid was examined by an § 11A impartial examiner, Dr. Vincent P. Birbiglia. As part of his examination, the § 11A physician reviewed the medical reports of Dr. Brown, a medical expert who examined the employee for the self-insurer and Dr. Selland, a medical consultant for the employee. Dr. Birbiglia also reviewed the results of various diagnostic tests performed on the employee as well as the Falmouth Hospital record. (Dec. 5.) The § 11A examiner was deposed on November 30, 1994, and a copy of his deposition was admitted into evidence. (Dec. 2.) In his decision, the judge adopted the opinion of Dr. Birbiglia, that “as of August 26, 1994 the employee was temporarily partially incapacitated from his regular occupation as a Millwright.” (Dec. 6.)

Despite finding that the employee’s testimony was “deliberately ambiguous, vague, and evasive . . . non-creditable . . . and that for all of his complaints of pain the employee has not sought any medical treatment at all[,]” (Dec. 6), the administrative judge nevertheless found the employee partially incapacitated as of August 26, 1994, the date of the § 11A impartial examination. (Dec. 8.)[1] The judge also found that the employee was barred from receiving weekly incapacity compensation benefits for the period during which he collected unemployment benefits. (Dec. 7.) Ultimately, the judge ordered the insurer to pay § 35 partial incapacity benefits from August 26, 1994 and continuing at a weekly rate of $240.00, based on an average weekly wage of $850.00 and an earning capacity set by the judge at $450.00 per week.[2] The judge further ordered the insurer to pay employee counsel’s fee and “the necessary and reasonable costs incurred for the treatment of the employee’s cervical/lumbar spine condition only.” (Dec. 8.) We have the case on appeal by the employee.

The employee advances several arguments in favor of reversing the administrative judge’s decision. One has merit. The employee asserts that the assigned weekly earning capacity of $450.00 is unsupported by the subsidiary findings. We agree. Appropriately, the employee points to the instructions in Scheffler’s Case,419 Mass. 251 (1994), for the analysis of the medical and factual evidence which must be done when the judge comes to the all important question of earning capacity. (Employee’s brief, 9-12). As the Scheffler court stated, the judge must first recognize that physical handicaps have a different impact on earning capacity in different individuals and that education, training, age, and experience affect the ability to cope with the physical effect of injury. Other influences on the employee’s ability to return to his former work or obtain a new position include the nature of the job, seniority status, the attitudes of personnel managers and insurance companies, the business prospects of the employer and the strength or weakness of the economy.

Here the judge recited the formula, i.e.:

“In view of the employee’s continuing complaints and taking into consideration his age, experience, education and his physical condition as described by the impartial physician, I find the employee’s work capacity is restricted to light work for earnings of $450.00 per week[,]”

(Dec. 7), but never got around to applying it.

The administrative judge should make specific findings pertaining to incapacity based on the evidence in the case.Ballard’s Case, 13 Mass. App. Ct. 1068, 1069 (1982). The judge determined that the employee was fifty-six years old, educated to the tenth grade, whose only relevant work experience was heavy labor working the past three decades as a millwright (Dec. 3) but made no findings about the type and amount of work which the employee could perform in order to earn the assigned earning capacity. Ballard’s Case, supra. As the administrative judge who heard and decided the decision no longer serves as such, recommittal for further findings is not possible.

As there are insufficient findings to support it, we reverse the finding of partial incapacity. The file will be returned to the senior judge for reassignment to a new administrative judge for hearing de novo on the issue of the extent of incapacity on and after August 26, 1994. Until a new decision is filed, the self-insurer is directed to continue paying § 35 partial incapacity benefits of $240.00 per week. If other issues have arisen during the pendency of this appeal, they may be joined for hearing at the discretion of the newly assigned administrative judge.

So ordered.

________________________ William A. McCarthy Administrative Law Judge
________________________ Susan Maze-Rothstein Administrative Law Judge

Filed: November 6, 1996

[1] From all that appears, the absence of medical treatment may have more to do with inability to pay than with whether there was a need for it. In this circumstance it was improper for the judge to draw an adverse inference from the lack of treatment.
[2] We cannot tell from the record before us why the judge ordered § 35 partial incapacity benefits to begin as of the date of the impartial exam. Maybe it’s because the employee was receiving unemployment benefits at the time of the hearing. In any event, the employee has not raised this question on appeal so we do not pursue it.

SMITH, J. concurring.

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 resulting impairment of earning capacity, discounting the effect of all other factors . . .” Scheffler’s Case, 419 Mass. 251, 256, 643 N.E.2d 1023, 1026 (1994). Because the decision is inadequate for appellate review on the issue of the duration and extent of incapacity, it does not assure us that the judge properly applied the law and rendered a decision which was factually warranted and not “arbitrary or capricious” in the sense of having adequate evidentiary and factual support and disclosing reasoned, not irrational, decision making governing a workers’ compensation dispute. Therefore recommittal for further findings of fact is appropriate. G.L.c. 152, §§ 11B, 11C.

The employee’s claim placed in dispute the nature and extent of incapacity from January 8, 1994. The judge therefore was required to determine when the employee first regained the capacity to perform remunerative labor and describe his work limitations on that date. If these limitations varied over time, at each change in condition, judge should describe the new limitations together with the employee’s vocational assets and decide how much the employee is able to earn. Saracino v. Commonwealth,
8 Mass. Workers’ Comp. Rep. 422, 426 (1994); citing Medley’s Case,
7 Mass. Workers’ Comp. Rep. 97, 99-100 (1993); Scheffler’s Case,
7 Mass. Workers’ Comp. Rep. 219, 223 (1993); Frennier’s Case,318 Mass. 635, 639, 63 N.E.2d 461 (1945). The judge then should adjust the level of weekly wage replacement benefits accordingly. G.L.c. 152, §§ 34 and 35.

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), rev. 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, will be final. G.L.c. 152, § 11C.

On recommittal, if 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 will be left to make his best estimate of the employee’s earning capacity.

For these reasons, I concur in the decision to recommit the case for further findings of fact and conclusions of law, leaving the current order of partial compensation in effect until the new decision is filed after hearing de novo.

________________________ Suzanne E.K. Smith Administrative Law Judge

Filed: November 6, 1996