Opinion
BOARD No. 101168-86
Filed: May 20, 1998
REVIEWING BOARD DECISION
(Judges McCarthy, Maze-Rothstein and Smith).
APPEARANCES
Richard J. Glynn, Esq., for the employee.
Paul A. Brien, Esq., for the self-insurer.
Ronald Miranda is presently forty-eight years old. Educated through the eleventh grade, he worked as a meat cutter, stock boy and warehouse laborer. Since he began to work for this employer in 1971 he has been a bus operator, gateman, rapid transit guard and toll collector. (Dec. 3.)
On February 26, 1986 he injured his right knee and right shoulder at work. Although he continued to experience aching stiffness and sharp pains in his shoulder and neck he nonetheless returned to work on December 2, 1989 as a toll collector. Throughout the workday he sold tokens and made change, activities that required fine motor movements of both hands. Mr. Miranda developed severe neck and arm pain causing him to leave work on December 10, 1993. (Dec. 3; Self-Ir. Brief 1.)
Miranda filed a claim for benefits which the self-insurer resisted. The claim was denied at conference and Miranda appealed to a full evidentiary hearing. After hearing the testimony of the employee and Dr. William Shea, the § 11A impartial examiner, the administrative judge issued a decision awarding § 34 temporary total incapacity benefits from December 11, 1993 to October 31, 1994 and ongoing § 35 temporary partial incapacity thereafter. (Dec. 1, 2, 7.) The self-insurer appeals that decision.
The self-insurer had previously accepted the 1986 knee and shoulder injury and paid compensation accordingly. It was the employee's claim for weekly benefits beginning December 10, 1993 that the self-insurer resisted. (Dec. 3; Tr. 6.)
Dr. Shea conducted his examination on October 31, 1994 and he was deposed by the parties on January 18, 1995. The hearing in this matter was held on November 23, 1994. The administrative judge who conducted the hearing left the Department before issuing his decision. A new administrative judge subsequently reheard the testimony on June 13, 1996. Due to the passage of time the new judge permitted the parties to submit additional medical testimony to provide a current medical picture. (Tr. 7.) Finding Dr. Shea's testimony adequate and the medical issues not complex, the judge adopted Dr. Shea's report and gave it prima facie effect. (Dec. 5.)
In reaching her conclusion, the administrative judge adopted the testimony of Dr. Shea who proffered a diagnosis of history of cervical radiculopathy which he causally related to the February 23, 1986 work injury and opined that Mr. Miranda could return to work that did not involve overuse of the right arm, lifting exceeding twenty to twenty-five pounds or anything requiring fine motor skills. (Dec. 4, 5.) While it does not preclude it, this opinion is not particularly supportive of the finding of temporary total incapacity. While the judge's reasons for awarding § 34 benefits could be derived from the evidence those reasons are not stated. On recommittal the judge must make subsidiary findings adequate to support her conclusions.
For example, the employee described his worsening symptoms of neck and arm pain that increased to the point of incapacitating him and the judge fully credited this testimony. Was this her reason for awarding § 34 benefits?
It is the majority view that this is an appropriate case for recommittal to the hearing judge to make additional findings of fact consistent with this opinion. § 11C. In all other aspects the decision of the administrative judge is affirmed.
So ordered.
_____________________ William A. McCarthy Administrative Law Judge
_____________________ Susan Maze-Rothstein Administrative Law Judge
Filed: May 20, 1998
The judge did make factual findings, which are grounded in the record evidence, and which rationally support her decision to award § 34 total incapacity benefits. She found: "The employee developed such severe pain in his neck and arm that, by December 10, 1993, he was unable to sleep at night and could not work." (Dec. 3.) The judge found that the only light work offered by the employer was that as a "flagman", which would require the use of the employee's right arm and hand. She further found that the impartial medical examiner "opined that work requiring repetitive use of the employee's right hand and arm would tend to aggravate his symptoms producing pain and tingling." (Dec. 4.) The judge found the employee's testimony fully credible. (Dec. 5.) She concluded: "The employee suffered worsening symptoms of neck and arm pain that increased to the point where he was unable to work." Id.
The physical impairment which the employee suffered "must be considered in connection with the effect of the extreme and constant pain on his nervous system and power to concentrate . . . Whether his claim of suffering is extravagant and excessive is not for us to decide." Zakon v. Metropolitan Life Ins. Co., 328 Mass. 486, 490, see G.L.c. 152, § 11C. The administrative judge is the sole trier of fact with the power to make such credibility judgements.
Section 11C of G.L.c. 152 was amended by St. 1991, c. 398, § 31 to remove our fact-finding power.
Based on her subsidiary findings of fact, which are well-grounded in the record, the judge's factual conclusion of total incapacity was reasonable and rational and in accordance with G.L.c. 152, the workers' compensation law. Because the decision was within the scope of the judge's authority, and was not arbitrary or capricious, or contrary to law, it should be affirmed. G.L.c. 152, § 11C. I would so order.
____________________ Suzanne E.K. Smith Administrative Law Judge