Opinion
BOARD No. 085980-89
Filed: April 29, 1996
REVIEWING BOARD DECISION
(Judges Fischel, McCarthy and Wilson)
APPEARANCES
John C. Fraser, Esq., for the employee
James A. Garretson, Esq., for the insurer
Anthony Grande worked as an oiler and operator of a Grade-All machine, doing excavation for the employer, T-Equipment Construction Co. The Grade-All machine, while in operation, would vibrate and bounce constantly. In October 1989 Mr. Grande began to experience pain in his back and left side and was admitted to the hospital. Testing and examination disclosed a pulmonary embolus (blood clot) in his left lung. Medication was prescribed to dissolve the clot and the employee was released from the hospital ten days later. However within a couple of weeks, he was readmitted with left side chest pain and nausea. A diagnosis of cardiac mitral valve prolapse was noted at that time. The employee underwent open heart surgery in April 1990 for repair of his mitral valve. In May 1990 the employee had pneumonia in the left lung and in September 1990 a recurrence of chest pain. At the time of the hearing the employee was taking anti-clotting medications and complained of occasional chest pain. (Dec. 4-6.)
The insurer resisted the employee's claim that the pulmonary embolism arose out of and in the course of his employment. After a conference on the claim, an administrative judge issued an order for payment of § 34 benefits from October 9, 1989 to November 1, 1990, followed by § 35 benefits from November 2, 1990 to August 14, 1991. Both parties appealed. (Dec. 4.)
At the hearing de novo the employee claimed § 34 benefits from October 9, 1989 until November 1, 1990, § 35 benefits from November 2, 1990 and continuing, and § 30 medical benefits. (Dec. 1.) The employee offered expert medical testimony from Dr. Lawrence Baker who opined that the employee's mitral valve prolapse was long standing and unrelated to the employment. With respect to the pulmonary embolism it was Dr. Baker's view that the constantly vibrating Grade-All machine, had probably caused prostatic vein abnormalities that, in turn, spawned the embolism. Dr. Baker considered the employee incapable of performing full employment due to the anti-coagulation medications he was taking, and restricted the employee to light duty. (Dec. 6-7.) The insurer introduced expert medical testimony from Doctors Elliot Sagall and Rodney Falk, both of whom opined that the employee's medical conditions were unrelated to his employment. (Dec. 7-8.)
The judge adopted "in part" all three medical opinions referenced above and then concluded that the employee's pulmonary embolism was causally related to his employment. The judge went on to find Mr. Grande temporarily totally incapacitated from October 8, 1989 to November 1, 1990, and thereafter partially incapacitated from November 2, 1990 to August 14, 1991. (Dec. 9.) The employee's claim for benefits beyond the August 14, 1991 termination date of the conference order was denied. (Dec. 10.) There are no findings on the employee's claim for § 30 medical benefits or on the disputed average weekly wage.
Both parties have appealed. The insurer contends that the judge's adoption of the opinion of Dr. Lawrence Baker was arbitrary and capricious because that opinion amounted to no more than speculation. The insurer also argues that there is no evidence to support the award of temporary total incapacity benefits under § 34 until November 1, 1990. Likewise, the employee finds fault with the judge's choice of dates to modify weekly benefits, being aggrieved both by the November 1990 change from § 34 to § 35 benefits and with the termination of all weekly incapacity benefits on August 14, 1991. The employee also contends that the judge erred by failing to consider the non-medical factors of incapacity analysis, such as age, education, experience and training, see Scheffler's Case, 419 Mass. 251, 256 (1994), and to make specific findings regarding the employee's earning capacity.
The judge's award of § 35 benefits from November 2, 1990 to August 14, 1991 is unsupported by subsidiary findings on the employee's average weekly wage and his earning capacity. There is no explanation of the reason for choosing November 1, 1990 as the date when temporary total incapacity ended and partial began. We note that the awarded periods of total and partial incapacity track exactly the judge's conference order. Since the hearing is a de novo proceeding and not an extension or continuation of the conference, the conference order is not part of the hearing evidence and should not in any way bear on the judge's ultimate disposition of the case. The requisite Scheffler analysis is also missing from the decision. Recommittal of the case for further findings is necessary. See Cowan v. Springfield Associates, Inc., 9 Mass. Workers' Comp. Rep. 503, 506 (1995); Praetz v. Factory Mutual Engineering Research, 7 Mass. Workers' Comp. Rep. 45, 46-47 (1993).
It should be noted however that the award of legal fees under § 13A for representing an employee at hearing is dependent on who sought hearing de novo, the insurer or the employee.
We decline the insurer's invitation to substitute our judgment of the probative value of that Dr. Baker's opinion for that of the judge's. However, on recommittal, the judge should disclose what parts of the medical evidence he adopts and what he rejects. The judge's blanket statement, that he adopts "in part" the opinions of all of the testifying physicians, fall well short of meeting the requirement that he "make such specific and definite findings upon the evidence reported as will enable this [board] to determine with reasonable certainty whether correct rules of law have been applied. . . ." Judkin's Case, 315 Mass. 226, 227 (1943). "Both insurer and employee are entitled to [clear and] unambiguous findings. . . ." Roderick's Case, 342 Mass. 330, 334 (1961).
Finally, the judge on recommittal should make findings regarding the employee's claim for § 30 medical benefits, and whether the claimed benefits are for reasonable and necessary medical treatment.
We return the case to the senior judge with the request that he reassign it the hearing judge for further findings in light of this opinion.
So ordered.
_____________________________ William A. McCarthy Administrative Law Judge
______________________________ Carolynn N. Fischel Administrative Law Judge
_______________________________ Sara Holmes Wilson Administrative Law Judge
Filed: April 29, 1996