Opinion
BOARD No. 00481693
Filed: November 5, 1998
REVIEWING BOARD DECISION
(Judges Levine, Maze-Rothstein, and Carroll)
APPEARANCES
Gregory D'Ambrosio, for the employee at hearing.
Michael F. Walsh, for the employee on brief.
Terence P. Reilly, for the insurer.
This case is before us on cross-appeals of an administrative judge's decision awarding the employee temporary partial incapacity benefits pursuant to § 35. The employee contends that the judge erred by failing to consider the employee's complaints of pain and the effects thereof in assigning a $100 per week earning capacity. The employee also maintains that the judge erred in rejecting parts of the vocational expert's opinion which were not based on the impartial report alone. The insurer argues that the assigned earning capacity was too low because the impartial examiner did not specify that the employee could not perform full-time work and the vocational expert's testimony indicated that there were a number of jobs the employee could perform within the restrictions imposed by the impartial examiner. We agree with the employee and therefore reverse and recommit the decision for further findings on extent of incapacity and earning capacity.
The employee, a 53 year-old widow with approximately nine years of schooling in Italy, had been employed as a home health aide for the employer when on February 4, 1993, at the home of a patient, she fell and injured her back. Her job required that she lift patients and assist them with personal care tasks such as dressing. She had previously worked as a seamstress, a hairdresser, a food preparer for the airlines, a cook in a public school, and in an unidentified position at a supermarket. Her speaking and comprehension of English is adequate. (Dec. 3-4.)
The insurer accepted liability for the injury and paid ongoing § 34 temporary total incapacity benefits. A conference on the insurer's complaint to modify or discontinue benefits was held on October 25, 1994, following which the judge issued an order allowing modification of benefits and assigning an earning capacity of $100.00 per week. The employee appealed, and a hearing de novo was held on January 23, 1995. (Dec. 1-2.)
At the hearing, the employee and a vocational expert testified. The report of the impartial examiner, Dr. Denis Byrne, was admitted as the only medical evidence. Neither party chose to depose the impartial physician. (Dec. 2.) The judge found the employee to have the following symptoms and limitations:
"Her present symptoms include burning pain in low back, right leg pain, which is hot, numbness in calf, toes, cramps in right thigh. On the left pain radiates, and she experiences numbness and tingling into the calf. Symptoms on the left are less than the right. Because of her symptoms, employee is never comfortable, requiring a change in position from sitting to standing. She is limited in lifting to very light weights. She is able to drive her car 15 — 20 minutes before she needs to stop and stretch."
(Dec. 5.) In addition, he found that she could sit and stand for periods of 15 minutes before needing to change position. (Dec. 4.)
The impartial examiner, in his report, diagnosed the employee with low back strain and disc herniations at L4-5 and L5-S1 causally related to the February 4, 1993 work injury. "He concluded that the employee had a temporary partial disability, with physical limitations including lifting or carrying no more than 25 pounds, and no walking for more than a block or two." (Dec. 5.) The judge adopted Dr. Byrne's opinion. Id.
Richard Bruhn, the employee's vocational rehabilitation expert, opined that the employee was not employable in any capacity because of her limited ability to sit, stand and walk and that her skills were not transferable because of these restrictions. (Dec. 6.) The judge rejected this opinion insofar as it "is based upon restrictions not established by the impartial physician, [ ] and [insofar] as it is not supported either by medical evidence of record or the reports of doctors which he testified he had reviewed." (Dec. 7.) The judge adopted only those parts of Mr. Bruhn's opinion which were based on the restrictions established by the impartial physician. Id. He found that, in accordance with Mr. Bruhn's testimony on cross-examination, if only the restrictions listed by the impartial examiner were considered, there were a number of jobs the employee could perform. Id.
Thus, the judge found the employee to be temporarily and partially disabled as a result of her injury at work. He further found, in accordance with the impartial examiner's opinion, that the employee was able to engage in work which did not require lifting or carrying over 25 pounds or prolonged walking. He then assigned her an earning capacity of $100.00 per week based on an ability to work 20 hours per week at $5.00 per hour and based upon her age, education and transferable skills. (Dec. 8.)
The judge's original decision issued on February 15, 1995 and did not award employee's counsel an attorney's fee. An amended decision, issued on March 16, 1995, corrected that error. We find no merit in the insurer's argument that the employee's counsel was not entitled to a fee. The conference order assigned an earning capacity as of October 25, 1994; the hearing decision assigned the same earning capacity but as of a later date — December 14, 1994. (Dec. 1-2, 8.) Even though the employee only appealed the conference order, the decision did direct "a payment of weekly . . . compensation benefits exceeding that being paid by the insurer prior to such decision." 452 CMR 1.19(4). Therefore, the employee's counsel is entitled to the fee. Cf. Conroy v. Norwood Hosp., 11 Mass. Workers' Comp. Rep. 487, 491 (1997).
We agree with the employee that the judge erred in failing to consider the employee's complaints of pain and the effects thereof, which he credited, in determining earning capacity, and the case must therefore be recommitted.
In making an incapacity determination, a judge is free to adopt all, part or none of an expert's opinion. Cf. Rennie's Case, 357 Mass. 640, 645-646 (1970). However, the judge must base his finding of incapacity, and, subsequently earning capacity, on an accurate review of limitations or restrictions. Otherwise, the evaluation of how medical impairment impacts an employee's earning capacity will be flawed. Valente v. Amcast Indus. Belcher Div., 11 Mass. Workers' Comp. Rep. 339, 340 (1997). Findings of incapacity may be based on an employee's testimony and on the administrative judge's observation of the employee in the courtroom and on the witness stand, in conjunction with expert medical opinion.Anderson v. Anderson Motor Lines, Inc., 4 Mass. Workers' Comp. Rep. 65, 67 (1990). Findings regarding the impact of pain on the employee's capacity to earn wages may be necessary to a determination of earning capacity. LaFreniere v. Belchertown State School, 10 Mass. Workers' Comp. Rep. 354, 357 (1996); McComiskey v. Lahey Clinic Medical Ctr., 8 Mass. Workers' Comp. Rep. 415, 418 (1994). In fact, a judge's findings regarding an employee's pain may permit a finding of total incapacity even where the medical testimony is that the employee is partially medically impaired.Anderson, supra at 67. Cf. Bedugnis v. Paul McGuire Chevrolet, 9 Mass. Workers' Comp. Rep. 801, 803 (1995) (an ambiguous medical opinion may be supported to the point of sufficiency by lay testimony). But cf. Shand v. Lenox Hotel, 12 Mass. Workers' Comp. Rep. ___ (1998) (where the impartial physician's medical opinion is that there is no causal relationship, the judge cannot find it based on other evidence).
Here, the judge made subsidiary findings regarding the extent and effect of the employee's pain. He found that she is never comfortable because of burning pain in her low back, numbness in both calves, right leg pain, and radiating left leg pain; she is limited to lifting "very light" weights; she can sit and stand for only 15 minutes at a time before needing to change position; and she can drive for 15-20 minutes before needing to stop and stretch. (Dec. 4, 5.) However, in his general findings on the extent of disability, the judge disregarded these subsidiary findings, specifically and solely relying instead on the impartial physician's opinion that the employee can "engage in an occupation [not requiring] her to lift or carry more than 25 pounds, or requires prolonged walking, as determined by the impartial physician." (Dec. 8; see Impartial Examiner Exhibit, p. 2.) But the impartial physician's evaluation of the employee's limitations did not purport to be a comprehensive or exclusive list of her limitations. By stating only that her limitations included a lifting or walking restriction, (Dec. 5), he did not preclude other limitations. Thus he did not specifically either include or exclude any limitations she may have had as to sitting or standing nor driving, consequences from the pain the judge found she had. On recommittal, in reassessing his general findings of incapacity and earning capacity, the judge should take into account his findings regarding Ms. Greci's symptoms and complaints of pain and the effects thereof.
There is no appeal challenging the propriety of the judge's finding limitations additional to the limitations given by the impartial physician.
We also agree with the employee that the judge erred by rejecting the vocational expert's opinion that the employee is totally disabled "in so far as that opinion is based upon restrictions not established by the impartial physician." (Dec. 7.) It is well-settled that, while an administrative judge can properly adopt an impartial physician's opinion as prima facie evidence of an employee's medical condition, he may not adopt as controlling the doctor's statement as to the employee's vocational abilities.Panza v. G. J. Luchetti, Inc., 9 Mass. Workers' Comp. Rep. 219, 221 (1995.) As already pointed out, the impartial physician's opinion here as to the employee's limitations was inclusive and not exclusive. Therefore, the basis of the vocational expert's opinion need not, in the present case, be confined to the impartial physician's non-exhaustive list of restrictions. To the extent, therefore, that the judge rejected the vocational expert's opinion for that reason, there was error.
In addition to that first reason, the judge also rejected the vocational expert's opinion for a second reason; namely, "in so far as it is not supported either by medical evidence of record or the reports of doctors which he testified he reviewed." (Dec. 7.) This second reason for rejection, even if adequate, was not stated to be in the alternative to the first reason, which related to the limitations established by the impartial physician. The judge's decision reads as if the reasons are joint and not several. It is appropriate, therefore, to recommit the case to the judge to reconsider the vocational expert's opinion.
There was direct conflict among the doctors whose reports the vocational expert reviewed. As such, the vocational expert's opinion that the employee was disabled could not supported, for example, by the insurer's medical examiner, who opined that the employee was not at all physically restricted. (See, e.g., Tr. 88-90.) At this juncture we express no opinion as to the propriety of the vocational expert's reliance on medical reports other than the impartial's. See Simoes v. Town of Braintree School Dept., 10 Mass. Workers' Comp. Rep. 772 (1996).
We reverse the decision and recommit it to the judge to make further findings on incapacity and earning capacity.
So ordered.
________________________ Frederick E. Levine Administrative Law Judge
________________________ Susan Maze-Rothstein Administrative Law Judge
________________________ Martine Carroll Administrative Law Judge
FEL/kai
FILED: November 5, 1998