Opinion
BOARD No. 045300-88
Filed: October 17, 1997
REVIEWING BOARD DECISION
(Judges Smith, Maze-Rothstein, and McCarthy)
APPEARANCES
Peter Georgiou, Esq., for the employee
Pedro Benitez Perales, Esq., for the Trust Fund
The employee appeals from the decision of an administrative judge denying his claim for § 34A benefits and instead awarding § 35 partial compensation benefits. Because there is no competent evidence supporting one of the work capabilities found by the judge, we recommit the case.
On July 11, 1988, Herrera received a personal injury to his back, arising out of and in the course of his employment. (Dec. 3). The insurer accepted the claim and paid § 34 benefits until they were exhausted. (Dec. 1.) In August 1995, Herrera filed a claim for § 34A permanent and total incapacity benefits and the matter was conferenced before an administrative judge on December 13, 1995. An order was issued awarding Herrera § 34A benefits from July 12, 1993 to December 13, 1995 and § 35 benefits from December 14, 1995 and continuing with an earning capacity of $100.00 per week. Maintaining that he was permanently and totally incapacitated, Herrera appealed to a hearing de novo. (Dec. 1-2.)
The pertinent language of § 34 at the time of the injury read as follows: "The total number of weeks of compensation due the employee under this section shall not exceed two hundred and sixty." G.L.c. 152, § 34. (This section was subsequently amended by St. 1991, c. 398, § 59, whereby the number of compensation weeks was reduced to one hundred fifty-six.)
On March 7, 1996, pursuant to § 11A, Herrera was examined by Dr. Simeon Locke. Neither party opted to depose the medical examiner and his medical report was submitted into evidence. (Dec. 1.) Doctor Locke diagnosed spinal stenosis and degenerative disc disease in the lumbosacral spine, causally related to the July 11, 1988 industrial injury. He opined that a permanent, partial disability existed and that the employee could perform light duty that did not require him to walk, bend, stoop, strain, push or pull and would make no demands on the employee's lumbar spine. (Rep. of Dr. Simeon Locke, 4; Dec. 3-4.)
Hermogenes Herrera, the employee, is a married, fifty-nine year old male who attained a fifth grade level education in Columbia. He emigrated to the United States from South America in 1968. His entire work experience in the United States consists of employment in the auto body industry. He began employment with Cambridge Imported Autobody in 1980. His duties included constant walking, bending, squatting, lifting, twisting, stooping and pushing and pulling while repairing damaged motor vehicles. (Dec. 3.) According to the impartial medical examiner, he is unable to return to this type of work. (Dec. 4-5.)
The administrative judge found credible the employee's testimony that "his doctors recommend that he walk, and that he, in fact, can walk approximately twenty minutes . . . ." (Dec. 4.) She therefore found "that the doctor's limitation on walking relates to walking greater than 20 minutes." ( Id.) She adopted the impartial medical examiner's work limitations "with this clarification."( Id.) The judge questioned the veracity of Mr. Herrera's testimony regarding his inability to speak, write or read any English despite his residing in the United States for over twenty-seven years. ( Id.)
After analyzing the pertinent factors in this case, Herrera's advanced age, limited education, work experience, physical limitations and his testimony, as required by Scheffler's Case, 419 Mass. 251 (1994), the judge assigned an earning capacity of one hundred dollars per week. (Dec. 3-6.) The administrative judge ordered the Trust Fund to pay § 35 benefits at a rate of $344.33 per week, based on an average weekly wage of $616.50 and an earning capacity of $100.00 per week from December 14, 1995 and continuing, and to pay §§ 13 and 30 benefits for the diagnosed condition. (Dec. 6-7.)
On appeal, Herrera asserts that: (1) the decision of the administrative judge is contrary to the evidence adduced at hearing; (2) the judge failed to perform the required Scheffler analysis; and (3) that the circumstances of this case suggest that an earning capacity of $100.00 per week is trifling in character as a matter of law. (Employee's brief, 1.) The first issue has merit and is dispositive of the appeal.
A careful review of the record in this case failed to reveal any competent evidence to support the judge's finding that the employee was able to perform work requiring walking up to 20 minutes. The impartial medical examiner who provided the sole expert medical evidence in this case reported that the employee "could presumably perform light duty that did not require him to walk . . . ." (Impartial Examiner Ex., 4, emphasis supplied.)
The impartial medical examiner's opinion that the employee is not capable of performing work requiring walking has prima facie weight. G.L.c. 152, § 11A(2). The employee's testimony that, sporadically, only in good weather, he could walk up to 20 minutes does not rationally warrant a different conclusion as to his physical capacity to sustain work requiring walking. (Compare Tr. 19, 20-21.). Because the impartial medical examiner's opinion that the employee should not perform work requiring walking was not met and overcome by competent evidence, it must be accepted by the judge as true. Scheffler's Case, 419 Mass. at 258. The judge erred in substituting her lay assessment of a lesser restriction. As this error goes to the heart of the incapacity determination, the decision must be vacated and the case remanded for a new decision. Pernorio v. Ara-Smith Transfer, 8 Mass. Workers' Comp. Rep. 142, 143, citing Grant v. Lewis/Boyle, Inc., 408 Mass. 269, 275 (1936); see O'Neil v. E.G. G, 9 Mass. Workers' Comp. Rep. 72 (1995) (recommittal required where reviewing board unsure how much the judge's erroneous finding may have affected her reasoning and conclusion).
"Q Has your condition changed — since 1993 to date, has your condition changed in any way?
A: Yes, it has changed. At times I feel frustrated because I cannot even walk." (Tr. 19.)
"Q: . . . In terms of walking and in terms of time, how much can you walk — about how much can you walk?
A: At times, twenty minutes, depends.
Q: What does it depend on?
A: It depends how I feel and how the weather is because the weather — the weather, it's the way I feel.
Q: What type of weather bothers you?
A: If — for example, this year it has been really cold, cold temperature.
Q: Cold temperature bothers you?
A: Yes, the cold weather.
Q: You mentioned that you can walk for approximately twenty minutes?
A: Yes." (Tr. 20-21.)
The judge found that the employee was only limited against work requiring walking greater than 20 minutes. (Dec. 4.)
On recommittal, using the employee's correct physical limitations, the judge should reassess whether his residual work capacity is substantial and not trifling. Workers' compensation benefits restore to the injured employee a portion of the wages made unavailable because of lost earning capacity. Tobin's Case, 424 Mass. 250, 252 (1997). The benefits provided by the Act compensate for the deprivation of support flowing from wages theretofore received by the employee. Don Francisco's Case, 14 Mass. App. Ct. 456, 460 (1982), citing Ahmed's Case, 278 Mass. 180, 183 (1932). Complete physical disability is not a prerequisite to recovery of total compensation benefits under G.L.c. 152, § 34A. It is sufficient that the work limitations stemming from the injury prevent an injured worker from performing and obtaining remunerative work of a substantial and not merely trifling character.LaFlam's Case, 355 Mass. 409, 410-411 (1069), quoting Frennier's Case, 318 Mass. 635, 639 (1945). Total incapacity is relative. "An injury which might reduce an illiterate laboring man to a condition whereby he could only earn his living by begging might not in any wise impair the earning power of a business or professional man." Boss v. Travelers Ins. Co., 296 Mass. 18, 22-23 (1936).
The question is whether the worker has recovered the ability to engage in a continuing and steady, rather than occasional, occupation or employment for wage or profit on which he can "rely to a substantial degree for a livelihood." Id. at 23 (emphasis supplied); see Azevedo v. Mutual Life Ins. Co. of New York, 308 Mass. 216, 219 (1941) and Zakon v. Metropolitan Life Ins. Co., 328 Mass. 486, 490 (1952). Thus, on recommittal, after the judge reviews the employee's physical limitations stemming from the work injury, she should again consider his background, education, training, age, work experience and any other factors relevant to his earning capacity. See Scheffler's Case, 419 Mass. at 256.
The goal of this incapacity analysis is to make a realistic determination of the weekly wage, if any, that the employee has been able to earn post-injury with "a reasonable use of all his powers, mental and physical". Federico's Case, 283 Mass. 430, 432 (1933); G.L.c. 152, §§ 35 and 35D. Because the record does not contain any evidence, "identifying particular jobs which were within his limited ability to perform and which were in fact available[.] . . . the judge is . . . entitled to use [her] own judgment and knowledge in determining that question." Mulcahey's Case, 26 Mass. App. Ct. 1, 3 (1988), rev. denied, 402 Mass. 1105 (1988).
We reverse the decision and recommit the case for a new decision consistent with this opinion. In light of the passage of time during the pendency of the appeal, the judge may take whatever additional evidence is necessary to render a just decision.
So ordered.
_______________________________ Suzanne E. K. Smith Administrative Law Judge
_______________________________ Susan Maze-Rothstein Administrative Law Judge
_______________________________ William A. McCarthy Administrative Law Judge