Opinion
BOARD No. 1858-85
Filed: February 1, 1996
REVIEWING BOARD DECISION
(Judges Maze-Rothstein, Kirby and Smith)
APPEARANCES
Michael Medley, for the employee
Susan F. Kendall, for the insurer
The employee appeals from a third decision issued following a second recommittal. The case has acquired the dubious distinction of a circuitous procedural history through which the pro se employee has persisted against repeated decisional errors. Finding error gain, equity demands we vacate and remand to a different administrative judge for a hearing de novo.
On January 10, 1985 the employee, Michael Medley, was a 37 year old carpenter when he sustained an industrial back injury while moving a partition. As a result, the employee filed a claim for temporary total incapacity, which the insurer refused to voluntarily accept. A hearing was subsequently held before the administrative judge on February 26, 1986 who found the employee had suffered an industrial injury and was partially incapacitated from January 11, 1985 to the filing date of his decision, May 14, 1986 ("Decision I"). Both the employee and the insurer appealed. On September 15, 1987, the reviewing board affirmed the decision.Medley v. E.F. Hauserman Co., 1 Mass. Workers' Comp. Rep. 162, 164 (1987). The employee sought further review by the Appeals Court.
A single justice of the Appeals Court held the administrative judge was unwarranted in finding that the employee's incapacity ended on the May 14, 1986 nonevidentiary filing date of his decision. The Court recommitted the case to the judge for a clarification of the findings.
In response to the recommittal, and without taking further evidence, the judge issued a supplemental decision on August 31, 1988 ("Decision II") finding the employee's partial incapacity now terminated as of a December 10, 1985 medical examination date. The employee again appealed to the reviewing board contending the decision was arbitrary and capricious, and contrary to law.
In Decision II, the judge adopted the opinions of Dr. Hazel and Dr. Grady. Both doctors opined the employee had significant continuing impairment related to the industrial injury. (1986 Dr. Hazel Dep. 17, 21-22, 28; 1986 Dr. Grady Dep. 21-22, 34; 1994 Dr. Grady Dep. 5, 17-18) Yet the judge concluded there was no incapacity as of Dr. Hazel's December 10, 1995 examination date. (Decision II, at 2.) Decision II contained no vocational appraisal to augment the determination that despite continuing industrially related impairment, incapacity ceased on said examination date It was therefore unclear whether the judge applied the proper legal standards. On May 11, 1993, once again the case was recommitted to the judge, this time by the board with specific instructions to make further findings to support the new termination date and to evaluate the employee's earning capacity with the requisite vocational analysis. Medley v. E.F. Hauserman, 7 Mass. Workers' Comp. Rep. 97, 99 (1993); Frennier's Case, 318 Mass. 635, 639 (1945).
On April 20, 1994, the administrative judge issued his third decision on the case ("Decision III"), again denying the employee partial incapacity benefits as of December 10, 1985. The employee now 47 years of age, ten years after his industrial injury and nine years after the first decision, appeals once more.
Among the numerous contentions advanced by the employee, we find merit in three, which we discuss here. First, the employee argues that upon recommittal, the judge discontinued his incapacity benefits as of December 10, 1985 without responding to this Board's specific instructions to clarify his rationale for the decision. This Board ordered the judge to conclude that incapacity had ended only if he determined, as a matter of fact, that the employee had regained the capacity to perform work which would produce earnings equivalent to his pre-injury average weekly wage.Medley, 7 Mass. Workers' Comp. Rep. at 100.
Decision III included an adoption of Drs. Grady and Hazel's opinions that placed extreme physical restrictions on the employee. In order to rule incapacity had ceased while causally related impairment did not, the judge was required to show reasoned consideration of the employee's vocational profile including his age, education, training, work experience, mental capacity, and any other factors relevant to the employee's ability to perform remunerative work. Medley, at 99-100; Scheffler's Case, 419 Mass. 251, 256 (1994); Frennier's Case, 318 Mass. 635, 639 (1945); see LaFlam's Case, 355 Mass. 409, 410-411 (1969). Only then could an assessment and finding be made on the employee's incapacity vis-a-vis his earning ability. Seaman v. A.T. T. Technologies, 8 Mass. Workers' Comp. Rep. 67, 68-69 (1994). The judge's failure to comply with the recommittal orders and established law was error.
Second, the employee submits that Decision III is replete with factual inaccuracies which prevent us from performing our appellate function. We agree. "It is the duty of an administrative judge to address the issues in a case in a manner enabling this board to determine with reasonable certainty whether correct rules of law have been applied to facts that could properly be found." Praetz v. Factory Mut. Eng'g. Research, 7 Mass. Workers' Comp. Rep. 45, 47 (1993). We discuss one such inaccuracy which appears to have had the most bearing on the judge's decision.
In Decision III, the judge made a general finding that the employee had not sought vocational retraining since his industrial injury. (Decision III, at 9.) This was clear error. In his findings, the judge discredited only the employee's testimony regarding his back pain, alleged restrictions, and ongoing disability. (Decision III, at 8, 9.) However, the employee's testimony that he applied to the Massachusetts Rehabilitation Commission for vocational retraining at least once after his industrial injury was neither discredited nor contradicted. (November 1993 Tr. 34-36; Insurer's Brief 17-18.) Thus, the finding that the employee "has not looked for light work or sought vocational retraining" simply ignores the employee's uncontroverted testimony. To the extent that this factual inaccuracy calculated into the evaluation of the employee's earning capacity, Decision III is erroneous.
On remand the parties should brief the legal issue of what effect the employee's use of heroin had on his benefit entitlement. Although some arguments have been advanced, we do not reach the issue and the parties may address it on remand. See Twomey v. Greater Lawrence Visiting Nurse's Assoc., 5 Mass. Workers' Comp. Rep. 156, 158 (1991); Gulczynski v.Granada Hosp. Group, 7 Mass. Workers' Comp. Rep. 151, 153 (1993). See also G.L.c. 152, § 27.
Accordingly, as we find Decision III plagued with legal and factual errors and fraught with ambiguous findings, and given the torturous procedural course which should have borne a clear result by the second or third decision, equity and justice require that we remand the case to a different administrative judge for a hearing de novo limited to inquiry of and decision on the extent of the employee's incapacity on and after June 4, 1985.
So ordered.
________________________ Susan Maze-Rothstein Administrative Law Judge
________________________ Edward P. Kirby Administrative Law Judge
________________________ Suzanne E.K. Smith Administrative Law Judge
Filed: February 1, 1996