Opinion
BOARD No. 097098-88
Filed: June 12, 1995
REVIEWING BOARD:
Judges Kirby, Smith, and Maze-Rothstein.
Judge Smith recused herself from this case.
APPEARANCES:
Casimir S. Lopata, Esq., for the employee.
Charles Chase, Esq., for the insurer.
The employee appeals from the decision of an administrative judge awarding him partial incapacity benefits pursuant to § 35 of the Act. We find no error and affirm the decision.
The employee, a machine operator and production assembler at the time of his injury, emigrated from Poland to the United States in 1986. (Dec. 3.) In 1988, the employee began the employment from which this claim derives. (Dec. 3.) On October 5, 1988, "the employee was probably having gastric symptoms on his way to work." (Dec. 4.) Once at work, he was lifting a heavy lid when he felt a pain in his chest. (Dec. 4.) He sat for a while in order to allow the pain to subside. When it did not, he left and went home, apparently before the end of his normal work shift. (Dec. 4.) When, even at home, the pain had not abated, he asked a neighbor to drive him to the hospital. (Dec. 4.) At both the admitting hospital and a second hospital to which the employee was referred, aggressive coronary disease treatment, including the administering of coumadin, was initiated. (Dec. 4-5.) While on a subsequent trip home to his native Poland, the employee apparently suffered an aneurism, rendering his vision deficient. (Dec. 5.) There was testimony that such an aneurism as the employee suffered was a frequent side effect of the drug coumadin. (Wittman Dep. at 19-20.)
The administrative judge found, adopting the opinion of the employee's medical expert, Dr. William J. Wittman, that on October 5, 1988, the employee sustained a myocardial infarction arising out of and in the course of his employment. (Dec. 7.) Moreover, she specifically found the aneurism subsequently suffered by the employee to have come about as a result of his having taken the drug coumadin, administered in treatment of his work-related heart attack. (Dec. 8.) The administrative judge consequently found the employee to be partially incapacitated from the date of his injury and continuing with an earning capacity of $100.00 weekly based on an average weekly wage of $235.00.
The sole issue presented on appeal is the employee's contention that the judge's assignment of any earning capacity was arbitrary and capricious or contrary to law.
We must examine how the judge arrived at her conclusion concerning the employee's incapacity and earning capacity. She related that in addition to his medical testimony, the doctor had offered his lay opinion that "the employee . . . would need further training in English to improve his communications problems and enable him to be employed at light work." (Dec. 8.) The actual testimony differs in emphasis somewhat from the judge's description in that the doctor testified that the employee's language barrier was "severe" and his understanding of the English language was "primitive at best" (Wittman Dep. at 37) and either version could support a finding of total incapacity in light of the employee's cardiac and vision problems combined with his vocational and language limitations.
On the other hand, the decision of the judge that the employee had a weekly earning capacity of one hundred dollars must be affirmed if it is based on evidence and reasonable inferences therefrom and is supported by adequate subsidiary findings. The factors in evidence which a judge must consider include a claimant's medical condition, age, experience, training and capabilities. Scheffler's Case, 419 Mass. 251, 260-261 (1994); Frennier's Case, 318 Mass. 635 (1945). It was the responsibility of the administrative judge to weigh the evidentiary value of each of the factors in the record bearing on determination of earning capacity of the employee. We may not substitute our judgment of such weight for that of the judge who heard the case. See § 11C. The judge considered all the required factors, as the decision shows. We note that here there was no testimony offered from a vocational expert.
Moreover, a judge has broad discretion in the assignment of earning capacity in the absence of direct testimony. Mulcahey's Case, 26 Mass. App. Ct. 1, 3 (1988).
Accordingly, the decision of the administrative judge is affirmed.
So ordered.
Judge Maze-Rothstein concurs.