Opinion
BOARD Nos. 04590594, 05349694
Filed: March 30, 1998
REVIEWING BOARD DECISION
(Judges Levine, Fischel Wilson).
APPEARANCES
Kenneth G. Littman, Esq., for the employee.
John G. Preston, Esq., for Insurer Fidelity Casualty Ins. of NY.
Paul R. Ingraham, Esq., for Workers' Comp. Trust Fund.
Michael Mello, the employee, and the insurer, Fidelity Casualty Insurance of N Y ("F C"), appeal the decision of an administrative judge ordering F C to pay the employee a closed period of § 34 temporary total incapacity benefits and ongoing § 35 temporary partial incapacity benefits based on an assigned earning capacity of $150.00. The employee appeals the finding as to earning capacity; F C appeals the finding as to liability. There being merit in both appeals, we remand for further findings.
The employee, thirty-four years old at the time of the hearing, was educated through the ninth grade. He has worked as a laborer since entering the work force. In the spring of 1994 he worked installing a lighting display at Santo Christo church in Fall River; the lighting display is a part of the church's annual celebration of the feast of Santo Christo. The job required the use of scaffolding and lights owned by the church; it took six weeks to complete the installation. The employee was paid for his work by checks signed by Father John Martins, pastor and keeper of the records for the church. Louis Garcia, d/b/a Garcia Electric, had installed the lighting display the past six years; the employee testified that he assisted Mr. Garcia in 1993 and 1994. (Dec. 4, 5, 6.)
On June 7, 1994 the staging the employee was standing on swayed away from the building causing him to fall approximately twenty feet onto an awning and then an additional twelve feet to the ground. He injured his ribs and lungs, suffered three fractures to his femur and shattered both wrists. He was transported by ambulance to the hospital where he underwent surgery. He remained hospitalized for seventeen days and underwent a year of occupational therapy. Further surgeries are planned. He currently suffers numbness in his hip and leg that restricts his ability to walk, chronic wrist pain and loss of strength in both hands. (Dec. 5.)
The employee filed two claims for benefits, one naming Louis Garcia and the Workers' Compensation Trust Fund ("Fund") as employer and insurer, and one naming Santo Christo Church and F C as employer and insurer. Neither the Fund nor the insurer accepted the claim. Following a § 10A conference the administrative judge ordered the Fund to pay § 34 benefits from June 8, 1994 to date and continuing. The Fund appealed and a hearing de novo was held. Pursuant to § 11A an impartial medical examination was conducted by Dr. Stephen Deutch, an orthopedic surgeon, who opined that the employee had numerous restrictions including with respect to climbing, repetitive work with his wrists, heavy lifting, prolonged walking and standing and that at best the employee would be limited to performing very sedentary employment requiring minimal repetitive motion of the wrists. (Dec. 7.)
The judge issued a decision ordering F C, the church's insurer, inter alia, to pay § 35 benefits from June 6, 1995 to date and continuing and to reimburse the Fund for all monies it had paid out relative to this claim. The employee argues that the judge erred in assigning an earning capacity. F C argues that finding it liable for the injury to the employee was arbitrary, capricious and contrary to law. We begin with the employee's appeal.
Extent of incapacity to work is usually a question of fact.DiRusso v. M.B.T.A., 11 Mass. Workers' Comp. Rep. 217, 219 (1997); Barry's Case, 235 Mass. 408, 410 (1920). Incapacity for work combines two elements, the medical element of physical injury or harm to the body and an economic element. Scheffler's Case, 419 Mass. 251, 256 (1994). "The determination of loss of earning capacity involves more than a medical evaluation of the employee's physical impairment. Physical handicaps have a different impact on earning capacity in different individuals." Id. Here, the judge made appropriate findings as to the employee's age, education and work experience. (Dec. 4.) See Frennier's Case, 318 Mass. 635 (1945). He also found that the employee has hip and leg numbness that restricts his walking; he suffers from chronic wrist pain; and he lacks finger strength in both hands. (Dec. 5.) The judge appeared to adopt the opinion of the § 11A examiner who limited the employee's employment range to very sedentary employment requiring minimal repetitive wrist motion. (Dec. 7.) He then concluded, without explanation, that the employee could earn $150.00 per week. (Dec. 9.) A judge is entitled to use his own knowledge and judgment in determining earning capacity where, as here, there is no direct evidence on the issue. Mulcahey's Case, 26 Mass. App. Ct. 1 (1988). However, his conclusions must be supported by definite and specific subsidiary findings, grounded in the evidence, that support his conclusions. Ballard's Case, 13 Mass. App. Ct. 1068 (1982); Beagle v. Crown Serv. Sys. Inc., 10 Mass. Workers' Comp. Rep. 282, 284 (1996). The judge made no subsidiary findings explaining how this employee with his ninth grade education, exclusively heavy labor work experience and considerable medical injuries and restrictions is able to earn $150.00 per week. It is appropriate to recommit the case for reassessment of the employee's earning capacity and to make findings thereon. See Beagle, supra, at 284-285, for guidance.
While the judge recited that this was the opinion of the impartial examiner, the judge found in his general findings that "the employee sustained multiple disabling injuries in the industrial accident." (Dec. 7.)
F C argues that finding it liable for payment of benefits to the employee was arbitrary, capricious and contrary to law. Specifically, F C argues that the judge's decision is contrary to § 18 of the Act which states, in pertinent part:
If an insured person enters into a contract, written or oral, with an independent contractor to do such person's work, . . ., and the insurer would, if such work were executed by employees immediately employed by the insured, be liable to pay compensation under this chapter to those employees, the insurer shall pay to such employees any compensation which would be payable to them under this chapter if the independent . . . contractors were insured persons. . . . This section shall not apply to any contract of an independent . . . contractor which is merely ancillary and incidental to, and is no part of or process in, the trade or business carried out by the insured . . . .
Applicability of § 18 depends upon the answers to three questions: (1) Who was Mr. Mello's employer? If he was employed by Santo Christo Church, § 18 is of no import and all analysis ends. (2) If, however, he is deemed to be Louis Garcia's employee, we must know if Garcia was an independent contractor. (3) If Garcia was an independent contractor, there must be findings whether Garcia was engaged in a part or process of the church's business or whether his work was merely incidental to the business of the church. The decision before us lacks sufficient findings to enable us to ascertain whether the judge applied the correct legal standards to facts that properly could be found. Praetz v. Factory Mut. Eng'g. Research, 7 Mass. Workers' Comp. Rep. 45, 47 (1993). As a result, recommittal is appropriate.
In making this determination, we need only address question (3),supra. This is because no appeal has been taken as to the judge's finding that Mr. Mello was an employee of Garcia. (Dec. 7 par. 1.) In addition, the judge, implicitly at least, found that Garcia was an uninsured independent contractor; he applied § 18 to hold F C liable for the employee's injuries. (Dec. 4, 8.) F C's appeal does not challenge the independent contractor finding. Furthermore, the Fund, whose interest it is that Garcia not be found to be an independent contractor, not only did not appeal the judge's aforesaid implicit finding, Saugus v. Refuse Energy Systems, Co., 388 Mass. 822, 831 (1983) (no cross appeal), but it has conceded that Garcia is an independent contractor. See the Fund's brief, pp. 11, 13, 14; see also the Fund's written closing argument to the judge, pp. 5,9, 10. Cf. Saxon Coffee Shop, Inc. v.Boston Licensing Board, 380 Mass. 919, 930 (1980) (concession by counsel at oral argument). And the employee does not challenge this in his appeal.
As to the third question, the judge failed to make adequate findings, and this requires a recommittal. F C is liable for the employee's work-related injury, pursuant to § 18 of the Act, if the work performed by the independent contractor Garcia is "part of or process in . . . the trade or business carried on by" the church. If that work was "merely ancillary and incidental" thereto, then F C is not liable. G.L.c. 152, § 18. The only subsidiary findings the judge made on this issue, before imposing liability on F C pursuant to § 18, are the following:
The lighting display is a traditional event for the feast of Santo Christo that has taken place for forty years.
The lighting display takes approximately six weeks to install . . . .
5. The lights and scaffolding used in the display belong to the church and Father [M]artin noted that the Santo Christo feast that originated in Portugal was a very important celebration for the parishioners.
(Dec. 6.) These findings are plainly inadequate to support the conclusion that the assembly of the lighting display was "part of or process in" the business of the church. Praetz, supra, Gatturna v. M.J. Flaherty Co., 10 Mass. Workers' Comp. Rep. 336, 338 (1996).
It serves no purpose to recapitulate the evidence presented by the parties. It is, in the first instance, for the judge to weigh the evidence and to make findings thereon. We cannot say, as a matter of law, that the assembly work plainly is, or plainly is not, part of the church's business. Cf. Poirier v. Plymouth, 374 Mass. 205, 219 (1978). The case must be recommitted for findings. For guidance, see Suffreti v. Lynn Shelter Ass'n., 10 Mass. Workers' Comp. Rep. 553 (1996), and cases cited; Locke, Workmen's Compensation §§ 153, 154 (2d. ed. 1981). See also Mobil Oil Corp. v. Roumeliotis, 38 Mass. App. Ct. 245, 250-251 (1995).
Accordingly, we reverse and recommit this case for reassessment and further findings consistent with this opinion. As the judge who heard this case is no longer with the department, we forward this case to the senior judge for reassignment to a new administrative judge for hearing de novo. The parties may assent to have the case heard by the new judge on all or any portion of the evidence taken before the earlier judge. Nartowicz's Case, 334 Mass. 684 (1956). During the pendency of the rehearing, the hearing order of liability and compensation shall remain in effect.
So ordered.
___________________ Frederick E. Levine Administrative Law Judge
____________________ Sara Holmes Wilson Administrative Law Judge
____________________ Carolynn N. Fischel Administrative Law Judge
FILED: March 30, 1998