Opinion
BOARD No. 09057783
Filed: June 5, 1995
REVIEWING BOARD:
Judges Fischel, McCarthy, and Wilson.
APPEARANCES:
Ernest W. Piper, Esq., for the employee.
Paul J. Muello, Esq., for the insurer.
The employee, a bus driver, injured his left knee and back on June 30, 1983 when he fell down three steps of a bus. The self-insurer accepted the claim and paid weekly benefits pursuant to § 34 from July 1, 1983 to July 29, 1988 when the statutory maximum was reached. Thereafter the employee filed a claim for permanent and total incapacity benefits under § 34A, which was denied at conference. The employee timely appealed and a hearing de novo was held in front of the same administrative judge.
The administrative judge found the employee to be totally and permanently incapacitated as of July 30, 1988, and awarded a period of § 34A benefits through January 24, 1990. "Totally and permanently disabled" means that an employee is permanently and totally disabled from earning wages. Frennier's Case, 318 Mass. 635, 639 (1945); Hersom v. M.B.T.A., 5 Mass. Workers' Comp. Rep. 149 (1991). "It is sufficient if the evidence shows that the employee's disability is such that it prevents him from performing remunerative work of a substantial and not merely trifling character, and regard must be had to the age, experience, training and capabilities of the employee." Id. Whether a person is permanently and totally disabled is a question of fact. LaFlam's Case, 355 Mass. 409, 410 (1969).
The judge then found the employee "only partially disabled as of January 24, 1990 in that the Self-Insurer made bona fide job offers for part-time, light duty work which the Employee was physically capable of doing at the time." (Dec. 15.) Because the employee had already collected the statutory maximum of two hundred fifty times the state average weekly wage in § 34 benefits he was precluded from collecting § 35 benefits.
We turn to the issues raised by the employee. The employee avers that once permanent and total incapacity has been established, the burden shifts to the insurer to show an improvement in condition. This issue is settled. The employee always has the burden of proving each element of his or her case. Sponatski's Case, 220 Mass. 526 (1915). This burden remains with the employee when § 34 benefits are exhausted and he must show that he is totally and permanently rather than temporarily totally incapacitated. Marino v. M.B.T.A., 7 Mass. Workers' Comp. Rep. 141, 142 (1993). Proving incapacity is always the employee's burden.
In this case the employee met his burden since the administrative judge found him to be permanently and totally incapacitated for a period of time subsequent to the expiration of his temporary benefits. Where the employee met his burden to show continuing total incapacity, any modification or cessation of compensation benefits should be grounded in the evidence. Mathews v. Hollingsworth Vose, 7 Mass. Workers' Comp. Rep. 130 (1993). We look to the evidence upon which the judge relied in finding a change in his incapacity, and restoration of capacity to work.
No medical evidence is relied upon by the judge to indicate any change in the employee's physical condition. All findings as to incapacity must be anchored in the evidence. Palardy v. Commonwealth of Massachusetts, 6 Mass. Workers' Comp. Rep. 165, 166 (1992), Makris v. Jolly Jorge's Inc., 4 Mass. Workers' Comp. Rep. 360, 362 (1990). We are unable to find any evidence to show that the employee's medical or physical condition had improved or changed as of January 24, 1990 to form the basis for the finding of work capacity. The administrative judge has relied on the same medical testimony and exhibits to find Cambria both totally incapacitated and partially incapacitated. The findings are internally inconsistent. On this basis, the decision cannot stand. Koelsch v. Cardinal Cushing Hospital, 8 Mass. Workers' Comp. Rep. 340 (1994)
Along with the probative medical evidence, determination of incapacity must take into account the employee's ability to perform remunerative work of a substantial and non-trifling nature on the open labor market. Downey v. Blue Cross Blue Shield, 7 Mass. Workers' Comp. Rep. 376, 380 (1993); Frennier's Case, supra; Scheffler's Case, 419 Mass. 251, 256 (1994). The employee must have the ability to perform the offered job and the job must be in fact available. Medley v. E.F. Hauserman Co., 7 Mass. Workers' Comp. Rep. 97, 100 (1993). While an administrative judge may base an earning capacity on an employer's job offer, the job must be actually available to an employee. The administrative judge changed her finding of permanent and total incapacity to partial incapacity because "the Self-Insurer made numerous good faith offers of full-time or part-time employment, which can be tailored to the Employee's physical restrictions" which she found the employee was capable of doing on January 24, 1990, the date of the continued hearing. (Dec. 14-15.) Where a judge has found an employee to be permanently and totally incapacitated for work, an offer of light duty work may not be relevant. See Hersom v. M.B.T.A., supra.
The administrative judge found that while the employee was disabled for the jobs of toll collector and flagger, he could do the jobs of traffic checker or watchman, but only on a part-time basis. The testimonial record indicates that no watchman jobs were available at the time of the hearing. (Tr. 59.) As to the toll collector job, there was testimony that it could "possibly" be performed on a part-time basis (Tr. 42), and no indication of an available toll collector job at the time of hearing. A job offer cannot be considered bona fide if the job is not available to the employee.
The employee raises as an issue whether, in view of the medical restrictions adopted by the judge, the findings as to capacity to perform part-time work as a watchman or toll collector are inconsistent with the expert opinion adopted. We cannot fully perform our appellate function with regard to this portion of the appeal because the record is devoid of relevant exhibits. The job description for toll collector, and two additional job descriptions listed as exhibits, are missing from the board file. In addition, the medical records/exhibits of Doctors Clancy, Keenan and Toczylowski, which the judge specifically credited in her decision, are also absent. We note that the judge found that work opportunities "can be tailored" to the employee's physical restrictions (Dec. 14), but there is insufficient evidence in the record to ascertain whether this tailoring was done, or merely anticipated as a "possibility." (Tr. 42). On the record available to us, we do have some concerns that there may be inconsistency between the expert opinion adopted and the judge's findings as to the employee's capacity to work as a watchman or toll collector.
The judge adopted the opinion of Dr. Basilico, a cardiologist, who stated that Cambria could perform sedentary tasks but only for brief periods of time and without exposure to weather extremes. No findings are made as to whether either the job of traffic checker or watchman can be performed under conditions which do not expose the employee to weather extremes. The judge went on to add that she did not interpret the doctor's statement to mean that he was capable of sustained part-time employment. (Dec. 9.)
A judge must address and make findings on both the vocational and medical aspects of the employee's work capacity when reviewing any job offer. Scheffler's Case, supra; Frennier's Case, supra. On remand, this should be done. In this case, where the judge found the employee permanently and totally incapacitated from performing remunerative work, there must first be medical evidence of a change in the employee's physical condition.
The administrative judge's decision that the employee is no longer permanently and totally incapacitated as of January 24, 1990 is vacated. We recommit this case for a hearing de novo as to the extent of any work incapacity after January 24, 1990. Since the judge who filed this decision is no longer with the department, this matter is referred to the senior judge for reassignment. We do not intend to imply that the self-insurer must pay § 34A benefits from that date until now during the pendency of the hearing de novo. Given the passage of time since the original conference, it would be appropriate for the newly assigned judge to first schedule a conference under the provisions of § 10A before proceeding to a full evidentiary hearing. No weekly payments need be made by the self-insurer until ordered by the judge.
So ordered.
Judges McCarthy and Wilson concur.