Opinion
BOARD No. 00769491
Filed: January 24, 1997
REVIEWING BOARD DECISION (Judges Wilson, Fischel and Kirby)
APPEARANCES
Joseph A. Bachorowski, Esq., for the employee.
Kevin T. Daly, Esq., for the self-insurer.
The employee appeals from a decision that awarded ongoing weekly § 35 benefits for temporary partial incapacity with an assigned earning capacity of $350. The parties stipulated to an average weekly wage of $436.38. (Dec. 6.) Because we are unable to determine the basis for certain of the judge's findings, we remand for further findings of fact.
At the time of the hearing, Rita Peters was a 43 year old widow with a tenth grade education. From March 1988, she was employed by the City of Salem Cemetery as a heavy motor equipment operator. Typically, the physical labor of the job included light to heavy lifting, kneeling, bending, stooping, climbing ladders, transporting and carrying sand, cement and equipment, mowing grass, raking, snow removal, pick and shovel work, digging and tree pruning. She operated and maintained equipment such as riding lawn mowers, tractors and power chain saws. (Dec. 6-7.)
On February 21, 1991, the employee was injured when she lost her footing while descending a ladder and landed on her buttocks. She was taken to a hospital where a L1 compression fracture was diagnosed. X-rays taken at that time also revealed: "wedging of L1 with only minor deformity compatible with acute injury. Rather prominent disc space narrowing [at] L5-S1." (Dec. 7.)
The self-insurer commenced payment of § 34 benefits for total, temporary incapacity. Thereafter, various notices and forms were sent and received. On March 7, 1991, the insurer sent a termination notice effective March 14, 1991, pursuant to the provisions of § 8 (1). On March 18, 1991, the self-insurer sent a second notice of payment. A second termination notice was sent on April 19, 1991, and the self-insurer also requested an extension of the sixty day pay-without-prejudice period on that day. The employee agreed to the extension on April 25, 1991. Finally, on June 6, 1991, the self-insurer sent a final notice of termination. (Employee exh. 2; Insurer exh. 2.) The employee thus received continuous § 34 benefits based on her pre-injury wage of $436.38 from February 26, 1991 to June 25, 1991. (Dec. 5.)
Following the final notice of termination, the employee filed a claim for benefits, which the self-insurer resisted. She also claimed entitlement to penalties for an illegal discontinuance. Following a conference, the administrative judge issued an order for continuing temporary, partial incapacity benefits under § 35 commencing June 25, 1991, based on an assigned earning capacity of $350. No ruling was rendered on the illegal discontinuance issue. The employee appealed and a full evidentiary hearing was held before the same administrative judge. (Dec. 5.) In her decision, the administrative judge found the self-insurer's actions did not constitute an illegal discontinuance and awarded continuing § 35 benefits from March 2, 1992, based on an earning capacity of $350. (Dec. 15.) It is from this decision that the employee appeals.
The employee argues that the finding of no illegal discontinuance is wrong because the self-insurer was stripped of the § 8(1) protections when it accepted her claim. The employee does not put forth an argument that the insurer's termination notices were not in compliance with the dictates of § 8(1), but rather maintains that those termination efforts were irrelevant because § 8(1) was not controlling due to acceptance of liability. It is unclear from the findings when liability was accepted or what the basis is for the judge's conclusion. The decision states:
Section 8, effective at the time of these transactions, stated in pertinent part:
(1) An insurer who begins payments of benefits in a timely fashion may make such payments for a period of sixty calendar days from the commencement of disability without affecting its right to contest any issue arising under this chapter. An insurer may terminate or modify payments at any time within such sixty day period without penalty if such change is based on the actual income of the employee or if it gives the employee and the division of administration at least seven days written notice of its intent to stop payments and contest any claim filed. The notice shall specify the grounds and factual basis for stopping payment of benefits . . . . St. 1985, c. 572, § 21, effective January 24, 1986.
(6) Any sixty day payment without prejudice period herein provided may be extended to one hundred twenty days by written agreement of the parties. St. 1987, c. 691, § 4, effective April 7, 1987.
Section 8 was subsequently amended by St. 1991, c. 398, § 25, effective December 23, 1991 and deemed procedural. Those statutory changes are of no moment to the facts of this case.
The employee's claims for compensation benefits arose out of an accepted industrial injury to the employee's back. The self-insurer paid section 34 compensation benefits without prejudice from February 26, 1991 to June 25, 1991.
(Dec. 5.)
Liability has been accepted in this case.
(Dec. 6.)
The accepted industrial injury occurred on February 21, 1991,
(Dec. 7.)
. . . the insurer terminated the employee's compensation benefits properly during the pay without prejudice period. (Dec. 15.)
If liability was accepted, is there any evidence that it occurred during the pay without prejudice period? Without the benefit of the answer to this question and more specific findings that establish the rationale for the judge's conclusion, we cannot begin our review of the validity of the judge's finding on the claimed illegal discontinuance.
We turn next to the employee's contention that the judge's findings do not support an assigned earning capacity of $350. In her decision, the administrative judge made the following findings.
I . . . find that the employee's pre-existing L5-S1, degenerative disc disease was incited by the fall at work, and is causally related . . . that her L1 fracture had fully healed [as of 9/15/92]. . . . I . . . find that the employee's obesity and terrible physical condition impact her condition.
I find that the employee may be able to drive a sit down lawn mower for ten to twenty minutes; That the employee is unable to carry a five gallon can of gasoline, load trucks, dig headstone foundations, load a cement truck, lift and carry rocks, shovel sand and/or snow, lift bags of chemicals and/or fertilizer at work, and nor is she able to perform her prior duties as a bus driver due to weakness in her lower spine and lower lumbar, and because her muscles have become atonic.
I am also persuaded by the employee's credible testimony regarding her physical limitations as it affects her daily living and incapacitation for work at the Cemetery. In considering all of the evidence, I find that she is unable to perform the modified job duties offered by the self-insurer. . . . I find that the employee is unable to return to her former employment . . . .
. . . I find that she is able to walk approximately two miles and that her walking condition has improved. I find that the employee drives, is able to go shopping and does light household chores. I find the employee cared for her husband until his death in September of 1991. I find that she cares for her brother-in-law, who has cerebral palsy i.e. getting him out of bed and preparing his breakfast etc.
Based on the employee biographical data form in evidence . . . I find the employment history is varied and extensive. The employee holds a valid class II drivers [sic] license.
Given the record as a whole, and the credible evidence of the employee's physical capabilities, causally related medical limitations, her age, education, training and work experience; I find that the employee is partially disabled and does have as earning capacity of $350 for work in the general labor market which is substantial and not trifling.
(emphasis supplied) (Dec. 12-14.)
We note that the employee's biographical data form, (employee exh. 1), lists her other, pre-injury work experience as hospital orderly and housekeeping, school bus driver, supermarket sausage maker, convalescent home housekeeping and laundry work, hardware store clerk, Tupperware house parties, door to door sales, "sub" shop operator.
While the administrative judge made token reference to the criteria for assessment of incapacity set forth in Frennier's Case, 318 Mass. 635, 639 (1945), we are hard pressed to accomplish our review when the judge has made so few findings that specifically address medical and vocational evidence that might support assignment of an earning capacity of $350 per week. See Praetz v. Factory Mut. Eng.g Research, 7 Mass. Workers' Comp. Rep. 45, 46-47 (1993). Although there are findings that detail the employee's activities, their relevance to the assigned earning capacity is not clear. To be sure, in the absence of direct evidence, an administrative judge may use personal judgment and knowledge in determining an earning capacity. SeeShaw v. Hoffman's, 5 Mass. Worker's Comp. Rep. 184, 186 (1991), and cases cited. The judge, nonetheless, must explain her conclusion. On remand the judge should set forth her analysis of the work-related medical condition and its impact on ability to earn in the context of the employee's education, training, age and experience. See Scheffler's Case, 419 Mass. 251, 256 (1994);Frennier's Case, 318 Mass. 635, 639 (1945).
The judge must also address the employee's extent of incapacity from February 27, 1991 to March 2, 1992. The hearing decision assigns an earning capacity as of March 3, 1992 based on the medical report of Dr. Lovejoy. (Dec. 11, 15.) The employee's claim was for incapacity benefits as of February 27, 1991, but the decision makes no general findings on the period of time prior to March 2, 1992. The judge must make findings for all periods of claimed incapacity based on the credible and probative evidence.
Lastly, the employee argues that the judge's refusal at hearing to allow an offer of proof on her husband's physical condition after his hospitalization, (Tr. 63), was error. We agree. Parties enjoy an absolute right to make an offer of proof on the record in order to preserve the gist of the testimony in question for appeal. See Mass. R. Civ. P. 43 (c). "The offer of proof requirement serves several purposes. An offer of proof may assist the trial judge in making the correct ruling. And the presence of an offer of proof in a record on appeal enables an appellate court to determine whether an error was made and, if so, how harmful it was to the [proponent]." Commonwealth v. Chase, 26 Mass. App. 578, 581-582 (1988) On remand the judge must open the record and allow the employee to make her offer of proof. Then the judge should determine whether or not to allow the testimony. If not, there will exist a record of what the testimony would be and, on appeal, that record will allow us to determine if it was error to exclude the testimony.
The employee correctly asserts as well that the judge erred in denying her request that a document be marked for identification. (Tr. 25, 27-28.) Marking a document for identification serves the same purpose as an offer of proof as to what a witness would testify. It preserves the evidence for review on appeal. The error here was harmless, however, as the documentary evidence was subsequently marked as employee exhibits 3 and 4.
We recommit this case to the administrative judge for further proceedings and findings consistent with this decision.
So ordered. __________________________ Sara Holmes Wilson Administrative Law judge
__________________________ Carolynn N. Fisch Administrative Law Judge __________________________ Edward P. Kirby Filed: January 24, 1997 Administrative Law Judge