Opinion
BOARD No. 012586-93
Filed: January 5, 1998
REVIEWING BOARD DECISION
(Judges McCarthy, Maze-Rothstein and Smith)
APPEARANCES
Ronald W. Stoia, Esq., for the employee
Edward M. Moriarty, Esq., for the self-insurer at hearing
Ellen Harrington Sullivan, Esq., for the self-insurer on brief
Frank Parker is presently fifty-three years old. After completing the tenth grade in high school he earned a G.E.D. and attended junior college. He has worked as a dock worker, ventilation technician, carpet installer and warehouseman. He began this last job in June 1986 at a Shaw's Supermarkets warehouse. The job entailed filling grocery orders by picking up and placing items on a pallet. He repeated this function approximately fifteen hundred times each shift. (Dec. 6.)
It was on February 5, 1993, when lifting a case of paper towels, that Mr. Parker felt a sharp pain in his back. Within minutes the pain radiated into his legs. (Dec. 7.) He immediately sought medical treatment and was given pain medication. An initial diagnosis of lumbar strain was made. Subsequent diagnostic radiology revealed a mild lumbar spondylosis and degenerative changes involving the facet joints, mild concentric disc bulges at L3-4 and L5-S1, a questionable small central or right paracentral disc herniation at L4-5, relatively mild bilateral L5-S1 radiculopathy and degenerative changes from L2 to L5. (Dec. 7.)
Parker underwent physical therapy followed by chiropractic treatment. This latter treatment was discontinued due to a heart condition. Between October 1993 and March 1994 he had six hospitalizations for cardiovascular problems including a second triple bypass, several angioplasties and vascular bypasses. (Dec. 8.) At the hearing Parker continued to complain of back pain and had not returned to work.
In April 1989 Parker underwent triple bypass surgery. He was out of work approximately four months before returning to his pre-surgery duties.
The employee filed a claim which the self-insurer initially resisted, giving rise to a § 10A conference. The claim was denied at conference and Parker appealed. Thereafter, the self-insurer agreed to pay § 34 total temporary incapacity benefits and Parker withdrew his appeal. Subsequently the self-insurer filed a complaint for discontinuance which was denied at conference, leading to a full evidentiary hearing after the self-insurer's appeal. At the outset of the hearing, the judge allowed Parker's motion to add a claim for § 34A benefits.
Two § 11A examinations were conducted, one by an orthopedist, Dr. Alemian, and one by a cardiologist, Dr. Sabra. Relying on the opinion of Dr. Alemian, the judge found Parker's orthopedic condition to be partially incapacitating and a significant and major cause of his incapacity. The judge ordered payment of weekly total incapacity benefits from February 6, 1993 to January 26, 1996 and weekly partial incapacity benefits thereafter. He denied the employee's claim for § 34A benefits.
On appeal the self-insurer advances one argument which has merit, namely that the assignment of January 26, 1996 as the day on which Parker's incapacity changed from total to partial is arbitrary. We see no merit in the issues raised on appeal by the employee in his cross appeal.
The date chosen for a change in weekly benefits must be based on competent evidence supporting a finding of a change in medical or vocational condition. See Monet v. Mass. Resp. Hosp., 11 Mass. Workers' Comp. Rep. ___ (November 17, 1997), and the cases cited therein.
The judge set out the following as the basis for choosing that date.
I use the date of January 26, 1996 as the significant date of my finding that the employee is partially disabled. That was the final proceeding in this case when the self-insurer moved that additional medical testimony be entered into evidence. On that day I reviewed the medical testimony, denied the Motion, and found the employee to be partially disabled.
(Dec. 16.) Because nothing of any medical or vocational significance occurred on January 26, 1996, we reverse the modification order and recommit the case for further findings on the nature and extent of incapacity during the claim period. In all other aspects the decision of the administrative judge is affirmed.
Because the administrative judge who issued the decision no longer serves in the department we forward this case to the senior judge for assignment to a new administrative judge for such further proceedings as are necessary in order to make the further findings called for by this opinion.
So ordered.
_____________________ William A. McCarthy Administrative Law Judge
_____________________ Susan Maze-Rothstein Administrative Law Judge
______________________ Suzanne E.K. Smith Administrative Law Judge
Filed: January 5, 1998