BOARD No. 067570-88Commonwealth of Massachusetts Department of Industrial Accidents
Filed: June 30, 1995
REVIEWING BOARD:
Judges Wilson, McCarthy, and Fischel.
APPEARANCES:
Donald E. Wallace, Esq., for the employee.
Richard M. Stanton, Esq., for the insurer.
WILSON, J.
The insurer appeals the decision of the administrative judge that ordered permanent and total weekly compensation pursuant to G.L.c. 152, § 34A from May 11, 1993 and continuing and related medical benefits. The insurer contends that the decision is arbitrary and capricious in that pivotal subsidiary findings are either inadequate or incorrect. We agree and recommit the case for further findings of fact.
The employee sustained multiple injuries when, on October 17, 1988, he fell eight feet from a ladder onto a pile of steel, landing on his back and striking his knee on the cement floor. Since the industrial accident, he has had continuous back pain with radiation to the lower extremities that is worse on the right side, as well as numbness over the right foot. After arthroscopic surgery, his left knee reached an end result without total resolution (Dec. 4, 5). At the time of hearing, the employee continued to receive temporary total benefits under § 34. He was not actively treating for his back or knee and was taking pain medication as necessary (Dec. 5).
It is clear from the findings that in reaching his ultimate conclusion on incapacity the judge considered not only the § 11A impartial medical examiner’s opinion that the employee could engage in a sedentary occupation with limitations on lifting, bending, climbing, crawling, sitting, standing and walking, but also the employee’s physical, vocational and daily living limitations. See Scheffler’s Case, 419 Mass. 251, 256 (1994). The judge also made findings on the employer’s offer of an adjusted, light duty job, and ultimately concluded that the employee was incapacitated for other than trifling work (Dec. 9).
Nevertheless, without corrected and additional findings of fact we cannot determine whether the judge considered all the pivotal testimony and then applied correct legal principles to the facts. Se Praetz v. Factory Mut. Eng’g Research,
7 Mass. Workers’ Comp. Rep. 45, 47 (1993).
On recommittal, the judge should weigh and make further findings on: 1) the employer’s testimony that he would arrange transportation with co-employees to the light duty position (Tr. p. 60); 2) a comparison of the physical requirements of the offered light duty position with the physical restrictions on work activity stated by the impartial medical examiner (Dep. 9-10, 18) and the employee’s testimony on his capabilities and limitations (Tr. 14-15, 16, 20, 54); 3) the employee’s testimony that he was willing to try the light duty position (Tr. 42, 47); 4) the employer’s testimony that they would accommodate the employee’s limitations and modify the position if necessary (Tr. 42, 47, 53, 68-69; and 5) the employer’s testimony that the offered light duty position was expected to last a year and that there were similar positions at other sites (Tr. 55). The judge should also make a finding as to whether the job offered is trifling or substantial.
Corrections are required as well to the judge’s findings. The decision states that the employee lies down four to five hours a day, while the employee’s testimony was that he lies on the sofa four or five times a day (Tr. 19-20). Secondly, the judge found that the offered position would entail putting together boxes from twelve to eighteen inches long, while the transcript reveals that the employer’s testimony was that the boxes varied in size from one by two inches up to 12 x 18 inches, and that the employee would not be required to work with larger boxes (Tr. 52, 63).
The larger task for the judge is to consider the employee’s praiseworthy testimony on his willingness to try a return to work and the employer’s commendable attempt to provide a light duty job, together with the employee’s vocational and physical limitations as determined from the expert and lay testimony. See Scheffler’s Case, supra
at 256; Frennier’s Case, 318 Mass. 635, 639 (1945). We do not in any way express an opinion on either the suitability of the job offer or the employee’s work capacity in the open market. That is for the judge. We suggest, however, that should the judge determine that the employer’s offer of work is substantial as opposed to merely trifling in nature and that the specific offered job is tailored to the employee’s physical limitations, it would be good practice for the judge to retain jurisdiction until after a reasonable trial return to work period.
So ordered.
Judges McCarthy and Fischel concur.