Opinion
Board No. 07226068
Filed: July 31, 1995
REVIEWING BOARD:
Judges Kirby, Smith, and Maze-Rothstein.
APPEARANCES:
Pasquale J. Ventola, Esq., for the employee.
Jean Shea, Esq., for the insurer.
The employee appeals from a decision denying and dismissing his claims for §§ 34A, 13 and 30 benefits, as well as claims under §§ 14, 35B, 50, and 13A. The employee was injured on December 18, 1968, when he fell from a loading platform and suffered an open fracture of the right distal tibia and ankle. The insurer accepted liability for the initial claim in this case, and paid the employee benefits pursuant to §§ 34, 35, 36, 13 and 30.
The employee returned to work at K.L.H. Research, but left when he needed further surgery on his injured right ankle because of infection and drainage. He underwent several episodes of surgery from April 1970 to May 1972 during which time he received § 34 compensation. When he was ready to return to work, no job was available with the employer. The employee became employed with another firm as a warehouse manager, remaining there until May 1991 when he was terminated at the age of 66 years (Tr. 57, 58). His limits for temporary weekly compensation had been exhausted in 1975, but he then made a claim for § 34A, permanent and total incapacity from May 10, 1991, under sections 13, 30, 14, 35B, 50 and 13A, as well as for a penalty against the insurer under § 14.
After hearing on February 24, 1993 the judge entered his decision on August 12, 1993. He made six "General Findings" as follows:
1. I find that the claimant is a forthright and credible witness.
2. Based on the opinion of Dr. Kamel, I find that the claimant's right ankle injury and its ongoing condition is causally related to the incident of 12/18/68.
3. Based on the opinion of Dr. Kamel, I find that the right ankle condition is unchanged since the bout of surgery in 1970.
4. Based on the opinion of Dr. Kamel, I find that the claimant could do sedentary work if it didn't include walking or using his legs.
5. I find that the claimant, based on his testimony, has not experienced further re-injury or aggravations of 12/18/68 injury and therefore he did not leave the employment of Webb Industries because of a new or [re]injury.
6. I find, based on the testimony given and the impartial doctor's findings that the claimant has not met the burden of proof, required under the Act, for a § 34A claim and accompanying claims.
He then entered the following orders:
1. The insurer is instructed that it has no obligation to pay § 34A or other benefits and penalties claimed under the Act.
2. This case is to be dismissed.
We find error in the orders insofar as they deny the employee compensation under sections 13 and 30 for reasonable medical expenses for treatment causally related to the industrial accident. Not only is this is an accepted case, but the Judge has also made a specific finding that the employee's condition is related to the industrial accident. Accordingly, we vacate that portion of the order that denies such compensation, and remand the case to the same judge for findings concerning the employee's claims for such reimbursement. See Tigano v. Acme Boot Company, 8 Mass. Workers' Comp. Rep. 116, 119 (1994); Jordan v. Hilltop Steakhouse, 6 Mass. Workers' Comp. Rep. 25, 26 (1992).
Further, we find cause to remand the case for additional findings regarding the employee's incapacity, because of the implication in the record that the correct standard of eligibility for § 34A compensation was not applied. The first five findings taken individually are not themselves a basis for reversal or remand. Taken together however, they are not sufficient to support the conclusion reached in the sixth general finding, that the employee has not sustained his burden of proving § 34A claim. This is because it does not appear in the record that the judge gave attention to important factors which must be considered in determining the extent of a claimant's incapacity.
Factors such as the present state of the employee's physical disabilities, such as the extent of his inability to walk or use his legs in a workplace, are significant, but a complete analysis of the factors bearing on the question of incapacity is needed. In Frennier's Case, 318 Mass. 635, 639 (1945), the court held that in addition to considering the extent of the employee's medical disability the judge must also consider the employee's age, education, training, work experience, and other factors relevant to the employee's ability to earn. These "other factors," may include the nature of the job, seniority status, the attitudes of personnel managers and insurance companies, the business prospects of the employer, and the strength or weakness of the economy. Scheffler's Case, 419 Mass. 251, 256 (1994), citing L. Locke, Workmen's Compensation 321, at 375-376 (2d ed. 1981). See also 1CA Larson, Workmen's Compensation 57-11, at 10-16 (1994 Supp. 1994).
The judge has not covered all of this ground in his findings, as reported in his decision. When he does do so he may or may not reach the same conclusion, which is within his province to decide, upon proper analysis. He should report his findings and analysis in his decision so that this board may, upon the record, determine whether the law was correctly applied. To perform its appellate function the reviewing board needs to know in sufficient detail through reviewing the record on appeal, the evidentiary bases for the facts explicitly found by a judge upon which the judge's legal rulings and orders are based. Praetz v. Factory Mutual Engineering Research, 7 Mass. Workers' Comp. Rep. 45 (1993).
An employee who, as here, seeks permanent and total compensation after a period of working full time has the burden of proving a change in circumstances which result in permanent and total incapacity. Such worsening is not limited to the employee's medical condition but might also be induced by vocational factors. The judge on remand should consider, together with the vocational factors set forth in Scheffler, supra, whether or not the employee's termination was a circumstance which reduced his vocational options to such an extent that he was then totally incapacitated.
We therefore remand this matter to the same judge for further findings on the existing record, concerning, first, any medical expenses which may have been incurred by the employee which are necessary, reasonable and causally related to the accepted industrial accident; and, second, concerning the employee's extent of incapacity at the time of the judge's decision, all to be made in accord with this opinion.
In view of the employee's age and the time elapsed since the employee's claim was made, the judge may entertain further claims or complaints by the parties if there are changes in circumstances which have arisen since the date of his decision here reviewed.
So ordered.
Judges Smith and Maze-Rothstein concur.