Opinion
BOARD No. 089801-84
Filed: March 20, 1995
REVIEWING BOARD:
Judges Fischel, McCarthy, and Wilson.
APPEARANCES:
David J. McMorris, Esq., for the employer.
Michael H. Burke, Esq., and Peter J. Moran, Esq., for the insurer.
For forty years Gordon D. Himmelman, now sixty-seven years of age and a resident of Florida, worked as a carpenter and construction superintendent for various builders. His last employer was A.R. Green and Son (Green). Claiming incapacity by virtue of a pulmonary impairment the employee stopped working on November 4, 1985 and filed a claim for weekly incapacity benefits against five former employers. The insurers resisted the claim and after a hearing an administrative judge found that the employee was regularly exposed to asbestos dust in his work and suffers from asbestosis causally related to these exposures. The judge further found that the employee was last exposed to asbestos while working in Leeds, Massachusetts, in 1985, for Green. Finally, the judge found that this last exposure contributed to the disease process and, applying the successive insurer rule, directed Standard Fire Insurance Company (Standard), the workers' compensation carrier for Green, to pay the employee temporary total incapacity benefits under § 34 of the Act from November 4, 1985 and continuing at a rate of $383.57 based on an average weekly wage of $640.00. The insurer was also directed to pay reasonable and related medical expenses together with legal fees and costs attending the hearing. Standard appealed the decision to the reviewing board which summarily affirmed the hearing judge's decision on May 4, 1992. By that date the statutory maximum payable under § 34 of the Act had been exhausted and a claim for permanent and total incapacity benefits under § 34A filed.
The employee's claim for § 34A benefits was denied following a conference and on the employee's appeal the case returned to the conference judge for a full hearing. Because the employee and all of the other lay and expert witnesses were in Florida, their testimony was taken by videotape deposition with the prior approval of the hearing judge. At the hearing the insurer raised issues of extent of incapacity and causal relationship between any incapacity found and the adjudicated industrial injury. On the way to his conclusion that the employee was permanently and totally incapacitated, the judge made a number of subsidiary findings. He found that the employee's formal education ended after two years of high school but the employee has "vast training and experience in the construction trade" (Dec. p. 3). He further found that in 1988 the employee had open heart surgery and is now required to take a number of medications for his cardiac condition. The judge rejected the employee's testimony that he can barely walk twenty-five feet without losing his breath but accepted his testimony that he has difficulty sleeping and is sensitive to dust, fumes, hair spray and cigarette smoke. The medical testimony was conflicting. The insurer's medical expert opined that while there was lung disease present, the employee's exposure to asbestos was not a contributing cause to any respiratory ailment from which he suffered. The employee's expert was of the view that the employee suffered from severe restrictive lung disease as a result of asbestosis and that this condition is neither curable or reversible and will worsen. The judge adopted in part the opinion of the employee's medical expert.
The earlier decision established that the employee sustained an industrial injury arising out of and in the course of his employment on November 4, 1985, his last day of work.
On appeal to the reviewing board the insurer contends that the hearing judge incorrectly applied the doctrine of "res judicata" thereby relieving the employee of his burden of proof. The insurer urges us to vacate the decision because the judge's misapprehension of the burden of proof necessarily makes his decision wrong as a matter of law. We agree.
An employee seeking permanent and total incapacity benefits has the burden of proving each element of the claim. Permanent is "not a synonym for eternal, endless or life long" but is "the opposite of temporary or transient." Yoffa v. Metropolitan Life Insurance Co., 304 Mass. 110, 111 (1939). The employee must establish that his disability is such that it prevents him from performing remunerative work of a substantial and not merely trifling character. See Scheffler's Case, 419 Mass. 251 (1994); Frennier's Case, 318 Mass. 635 (1945). The inquiry into whether the injury has resulted in total and permanent incapacity is most often a question of fact. The evidence presented in this case moves in opposing directions. The judge was without authority to disturb or modify the finding of an industrial injury arising out of and in the course of employment on November 4, 1985. While the finding of an industrial injury is res judicata, the earlier finding of causally related work incapacity is some evidence (emphasis ours) of causally connected permanent and total incapacity but it is clearly not conclusive evidence. The judge seems to have thought otherwise when he stated:
It is now res judicata, at least for purposes of Section 34, that since November 4, 1985 the Employee has been totally disabled because of asbestosis, a condition he contracted as a result of exposure to asbestos dust while employed by A.R. Green Son (among other employers). The only issue before me is whether the Employee's disability resulting from his asbestosis condition is permanent. (Dec. p. 3)
The earlier finding of causal relation does not preclude the insurer in this later hearing from again raising the issue. At the § 34A hearing it was the duty of the administrative judge to make findings with respect to the employee's medical condition and its causal connection to the employee's work. Because the judge had a different view of the burden of proof, we cannot allow the decision to stand.
The judge restated his view in a footnote found on page 6 of his decision. The footnote reads as follows:
Whether or not the Employee's pulmonary problems are causally related to asbestosis is not material in the in the instant circumstances, because the issue can no longer be raised under well established principles of "issue preclusion" ( res judicata). The relevant and material issue here is whether the Employee now suffers with some lung disease which disables him for the foreseeable future from meaningful, gainful employment on the open labor market."
The judge who heard and decided the case no longer serves as such. Accordingly we return the case to the senior judge for reassignment for hearing de novo on the employee's claim for permanent and total incapacity benefits under § 34A of the Act.
Judges Fischel and Wilson concur.