Opinion
BOARD No. 026362-95
Filed: May 28, 1998
REVIEWING BOARD DECISION
(Judges Levine, Wilson and Fischel).
APPEARANCES
Louis P. Massaro, Jr., Esq., for the employee.
Carl F. Schmitt, Esq., for the insurer.
The insurer appeals a decision in which an administrative judge awarded the employee continuing temporary total incapacity benefits based on his emotional incapacity to enter the labor market while disfigured from an accepted industrial accident. We disagree with the insurer's argument that the judge's finding of an emotional injury was arbitrary and capricious. However, we do recommit the case for further findings on the extent of incapacity for reasons that follow.
On June 30, 1995, while the employee was working for the employer, Bradford Country Club, a malfunctioning sprinkler head exploded in the employee's face. The employee was a college student at the time, and, since 1989, he had worked seasonally at the country club as a grounds maintenance worker. The explosion knocked the employee unconscious, and fractured both his lower and upper jaws. He lost three teeth and substantial bone and tissue; he also suffered multiple facial lacerations and a concussion. (Dec. 3-4.) The employee underwent surgery a few days later to repair the fractures and soft tissue injuries. The employee underwent several more surgeries over the next year and one half; these included a bone harvest from his hip to repair his upper jaw, the placing of implants to hold teeth in his upper jaw, and a repair of the roof of his mouth. (Dec. 4.) At the time of the November 21, 1996 hearing, the employee was wearing a temporary replacement plate for his three missing teeth. The plate could not be worn after surgery, due to swelling. The employee was planning at that time to have a permanent implant installed to replace the three lost teeth. The employee had not returned to work at the time of the hearing, but he had finished his course of study at college and graduated with a bachelor's degree in Economics. The employee felt that he was unable to enter the labor market until his appearance is improved by plastic surgery. (Dec. 4.) Nonetheless, when the employee wore the temporary replacement plate, such as at the hearing, most people could not tell that the teeth were false. (Tr. 66.)
On June 19, 1996, the employee was examined by an impartial physician who specialized in oral surgery. The doctor opined that the employee was no longer disabled physically to perform any variety of occupations. However, the doctor commented that the employee was impaired somewhat by his lack of teeth and remaining facial scars from going out and obtaining a new job. The doctor noted that the employee felt unable to go for job interviews because of the absence of anterior maxillary teeth; that the employee feels this loss emotionally affects his performance in a job interview situation. The doctor referred to the employee's condition as being an "impairment with regards to esthetics." (Dec. 5; Statutory Ex. 1.)
The judge accepted the opinion of the impartial physician as prima facie evidence of the employee's medical status. (Dec. 5.) The judge concluded:
While [the employee] may be physically able to perform some jobs, he is impaired by his inability to enter the labor market due to his appearance and the need for further corrective surgery from obtaining employment. In the period between the industrial accident and the impartial physician's examination, the employee was undergoing a series of medical treatments and surgeries necessitated by his injuries as well as suffering from pain and facial nerve palsy caused by the industrial accident. I conclude that he was totally disabled from working from the date of the injury to the date of the impartial examination as a result of the physical injuries he sustained.
As noted by the impartial physician, the employee continues to be emotionally impaired as a result of his injuries. Based upon my observation of the employee when he testified, I conclude that he sincerely feels unable to enter the labor market until he has additional medical procedures to improve his appearance. I infer from the report of the impartial medical examiner that he thinks the employee remains disabled from working due to a mental disability causally related to his physical injuries. This conclusion is consistent with the employee's testimony, which I found completely credible in light of his appearance. This emotional disability is compensable.
. . .
I think, under the circumstances of this case, there is a difference between being capable of attending school and emotionally capable of venturing into the labor market while severely disfigured. I therefore conclude that the employee was totally disabled from working from the time of the injury and continuing.
(Dec. 6-7; emphasis added.) The judge ordered the insurer to pay temporary total incapacity benefits in accordance with her conclusions. (Dec. 10.) The insurer appeals the judge's determination that the employee suffered from a causally related mental disability.
The insurer argues that the judge's finding of an emotional disability was without any basis in the record. We disagree. The impartial physician's assessment of the employee's "esthetic" impairment provided competent evidence upon which the judge could base her finding. The impartial physician stated:
It seems that the chief complaint of Mr. Hall is that he feels he is unable to go for any job interviews in his line of work which is finance because of the absence of anterior maxillary teeth. He feels this loss emotionally affects his performance in a job interview situation.
He is unable to wear any temporary replacement teeth as there is substantial scar tissue over his maxillary ridge.
. . .
My overall assessment is that at this point in time, the patient is impaired somewhat by the lack of teeth and remaining facial scars. . . . [A]s for obtaining a new job, making a good physical presentation is important and the lack of maxillary front teeth is a hindrance i[n] obtaining a new job.
(Statutory Ex. 1; emphasis added.)
The judge's conclusion is within the rule of law set out inFennell's Case, 289 Mass. 89 (1935). In that case the court determined that incapacity to obtain work due to the injured appearance of the employee, "is, or may be, as much a consequence of the [industrial] injury as" the physical effect of the injury.Id. at 94. The court reasoned:
On principle, when one is unable to obtain other employment because of visible, physical results of an industrial accident, that person's earning capacity is as much impaired as if he were physically disabled to the extent that he could do no work. If such cause and effect are presented, the precise way in which one operates to bring them about is of no importance. It follows that the finding of the Industrial Accident Board as to total incapacity was not precluded by the fact that the employee was not physically disabled for work.
Id.; emphasis added. See also Locke, Workmen's Compensation, § 322 (2d ed. 1981). We cannot say that the judge was wrong in crediting the present employee's emotional reaction to interviewing for a job without three of his front teeth, which caused a real impairment to his earning capacity. The court in Fennell accepts that "total inability to do work and total incapacity to earn wages for work done are not synonymous. . . ." Fennell, supra at 93. Particularly in light of the broad language used by theFennell court — that "the precise way in which one operates to bring about [the appearance-based impairment] is of no importance" — we do not reverse such a finding. We affirm the judge's conclusion that the employee suffered from an incapacity related to his industrial injury.
The insurer's argument that the opinion of the impartial oral surgeon as to the employee's emotional condition was not probative because he was not an expert in psychiatry is without merit. SeeMayo v. M.B.T.A., 11 Mass. Workers' Comp. Rep. 190, 192 (1997)("A medical expert may testify outside of his special area of expertise" so long as he is qualified). We also note that the insurer did not object at hearing to the opinion of the impartial physician on the employee's "esthetic" and emotional impairment to obtaining a new job. "The reviewing board will not entertain an objection to the impartial report which was not raised at the hearing level. The judge was entitled to give the report its full probative worth." Giovanella v. Westborough State Hospital, 7 Mass. Workers' Comp. Rep. 177, 178-179 (1993); Standish Mgt. Co. v. Randolph Housing Auth., 26 Mass. App. Ct. 901, 902 (1988) (failure to object to admission of expert testimony).
However, we consider that the case is appropriate for recommittal on the extent of the incapacity related to that emotional impairment. The impartial physician's opinion on the employee's "esthetic" impairment was based on facial scars and the employee's inability "to wear any temporary replacement teeth" as of the date of the examination, June 19, 1996. (Statutory Ex. 1.) Six months later, at the lay hearing, the employee testified, without contradiction, that he could, in fact, wear the temporary plate at all times except after surgeries. (Tr. 65-66.) The basis for the impartial physician's opinion, therefore, no longer obtained. Under these circumstances, we must recommit the case for further findings of fact addressing when the employee's medical condition improved so that he could wear the temporary replacement plate. The judge should then reassess her incapacity analysis to comport with that finding. See Costa v. Rudco Industries, 9 Mass. Workers' Comp. Rep. 809, 810 (1995) (changes in employee's capacity to work must be supported by medical or other evidence, and the judge's findings as to such changes must reflect the reasoning used to reach the conclusion).
The case is recommitted. Pending reconsideration, the hearing order shall remain in effect.
So ordered.
_____________________ Frederick E. Levine Administrative Law Judge
_____________________ Sara Holmes Wilson Administrative Law Judge
_____________________ Carolynn N. Fischel Administrative Law Judge
FILED: May 28, 1998
FEL/kai