STEELE v. MASS. BAY TRANSPORTATION AUTHORITY, No. 073579-90 (Apr. 17, 1996)

BOARD No. 073579-90Commonwealth of Massachusetts Department of Industrial Accidents
Filed: April 17, 1996

REVIEWING BOARD DECISION

(Judges Wilson, Fischel and McCarthy)

Wayne R. Gallo, Esq., for the employee

Norman P. Beane, Esq., for the insurer

WILSON, J.

The insurer appeals from a decision in which the administrative judge awarded the employee a closed period of temporary, total incapacity benefits, and continuing partial incapacity benefits for a March 15, 1990 industrial injury to her lower back. The insurer argues that the case must be remanded because the judge failed to address the properly raised defense of lack of notice. See G.L.c. 152, § 11B. We agree, and therefore remand the case for further proceedings.

From 1984, the employee worked for the employer as a construction compliance officer. The employee experienced industrial injuries to her back in 1985 and 1986. On March 15, 1990, the employee was removing old files from a cabinet, placing them in boxes, and carrying the boxes a short distance when she re-injured her lower back. The employee felt the onset of pain in her back and numbness in her legs, and reported to her supervisor and a co-worker that her back was bothering her. Although the employee attempted to return to work over the next few days, by March 19, 1990, she was unable to work. She was admitted to Massachusetts Osteopathic Hospital on March 20, 1990, where she stayed for ten days. An August 1990 MRI examination revealed a moderate, central and right herniation of the L5-S1 disc with posterior displacement of the right S1 nerve root sleeve. (Dec. 4-6.)

The record shows that the employee first filed a claim for weekly incapacity benefits on January 24, 1991, which the insurer resisted. As a result of a conference held on October 23, 1991, the insurer was ordered to pay the employee continuing § 34 incapacity benefits from March 16, 1990, along with medical benefits. The Insurer appealed the conference order to a hearing de novo. (Dec. 3-4.)

At hearing, the insurer raised issues of liability, causal relationship, average weekly wage, extent of disability, notice and the offset against a third party settlement related to the employee’s 1986 work-related slip and fall injury. (Tr. 10.) The employee and a number of witnesses for the employer testified, as well as the employee’s three treating physicians, by way of deposition. (Dec. 1-2.) The judge concluded that the employee had sustained a new injury at work on March 15, 1990, and that she was totally incapacitated as a result from March 16, 1990 until May 3, 1993, the date of the filing of his decision. (Dec. 13-14, 16.) The judge determined that the employee’s third party settlement related to her 1986 industrial injury, and therefore the question of the insurer’s offset was irrelevant to the disposition of the instant new injury claim. (Dec. 14.) The judge further concluded that the employee continued to be partially incapacitated, and awarded § 35 partial incapacity benefits based on an assignment of an earning capacity of $314.64 as of May 4, 1993. (Dec. 15-17.)

The insurer raises two issues of moment. The insurer first contends that the judge wholly failed to dispose of the issue of notice under §§ 41, 42, and 43, which was raised by the insurer at hearing.[1] (Tr. 10.) There apparently was no dispute at hearing as to the fact that, until the claim was filed, the employee never served written notice of the March 15, 1990 industrial accident on the employer or insurer, within the meaning of those sections. We cannot glean this from the decision, however, as it is devoid of subsidiary or general findings, or any reference whatsoever to the issue of notice. Furthermore, without specific and definite findings on the issue, there is no way to determine whether the judge was relying on the provisions § 44 to excuse the want of proper notice.[2] “Decisions of members of the board shall set forth the issues in controversy, the decision on each and a brief statement of the grounds for each such decision.” G.L.c. 152, § 11B. We simply cannot determine from the judge’s findings whether he applied correct principles of law with regard to the issue of notice. We therefore recommit the case for further proceedings.

The insurer also argues that the date of the filing of the judge’s decision, which the judge chose for a reduction in the employee’s incapacity benefits, is arbitrary and without an evidentiary basis. We agree. See Tramonte v. David Brett, Inc., 4 Mass. Workers’ Comp. Rep. 300, 302 (1990); Makris v. Jolly Jorge’s, Inc., 4 Mass. Worker’s Comp. Rep. 360, 362 (1990). On remand, the judge shall also reexamine the extent of incapacity and make a determination that is grounded in the evidence.

As a final matter, we do not agree with insurer’s contention that it is entitled to an offset from the employee’s third party settlement under § 15. That settlement was for an old injury, unrelated to the 1990 injury found here.

Accordingly, we remand the case for further findings on the issues of notice and extent of incapacity. Because the judge who wrote this decision is no longer a member of the department, we forward the case to the senior judge for reassignment and hearing de novo on those issues.

So ordered.

__________________________ Sara Holmes Wilson Administrative Law Judge
___________________________ Carolynn N. Fischel Administrative Law Judge
___________________________ William A. McCarthy Administrative Law Judge

Filed: April 17, 1996