Opinion
BOARD No. 08485989
Filed: May 28, 1998
REVIEWING BOARD DECISION
(Judges Fischel, Levine and Wilson).
APPEARANCES
John K. McGuire, Jr., Esq., for the employee.
Omar Hernandez, Esq., for the self-insurer at hearing.
Arthur Jackson, Esq., for the self-insurer at hearing and on brief.
The self-insurer appeals from the decision of the administrative judge awarding a closed period of § 34 total incapacity benefits, and ongoing § 35 partial incapacity benefits, contending that no medical evidence buttressed the compensation awarded. We agree that there is a gap in the medical evidence for the time period in which total incapacity compensation was awarded, and remand accordingly.
Harold Relihan, age sixty three at the time of hearing, worked for twelve years as an investigator for the Department of Industrial Accidents. His job required extensive travel between Worcester and the New York border, checking on uninsured employers, and issuing stop work orders. (Dec. 4-5.)
On February 16, 1989, while working, he slipped on ice and injured his head, back, and left shoulder. (Dec. 5.) The self-insurer accepted the case, and the employee received benefits for several closed periods of incapacity and after each period of incapacity returned to work. (Dec. 5.)
The employee sustained a concussion in the fall, and began having memory and speech problems, along with continued problems with his back. (Dec. 5, 6, 8, 12.) Prior to injury the employee had been a very thorough and helpful worker, but after injury the employee was disoriented and forgetful, with poor concentration, and deteriorating work habits and appearance. (Dec. 7, 9.) Ultimately, the employee stopped work on February 2, 1994 and has not returned since. (Dec. 1, 5, 13.)
The employee's claim for further compensation from February 2, 1994 was denied at conference. (Dec. 1.) At the hearing on his appeal the judge allowed the parties' requests for orthopedic and neuropsychological evaluations because the employee had both back problems and memory problems since the injury at work. (Dec. 3, 12.)
Dr. Russell Butler, a neurologist and neuropsychologist, conducted a § 11A exam on April 14, 1995, and Dr. J. Gordon Rich, the § 11A orthopedic physician, examined the employee on March 29, 1995. The depositions of the doctors were admitted into evidence. (Dec. 2.) The employee requested additional medical testimony due to medical complexity and inadequacy, but the administrative judge denied the motion. (Dec. 12.)
The judge adopted Dr. Butler's opinion that the 1989 fall contributed to the employee's present partial impairment due to chronic back symptomatology. (Dec. 8, 9, 10; Dep. Butler 28-31.) He rejected the opinions of Dr. Rich, setting forth his reasons therefor. (Dec. 11.) It is well established that an administrative judge can adopt all, none or part of the medical evidence proffered. Amon's Case, 315 Mass. 210 (1943).
The judge found the concussion that the employee sustained in the 1989 fall compromised his behavior and daily functioning, causing forgetfulness, poor concentration and deterioration in his appearance. (Dec. 9, 10, 12.) He noted Dr. Butler's opinion that the employee's cognitive function was improving, but that he remained disabled. (Dec. 10.) It was Dr. Butler's opinion that while the employee could be showing improvement on tests, he could be feeling worse. (Dep. Butler 45-46, 53-55.)
Dr. Butler opined that the 1989 injury contributed to the employee's depression problem, and that depression was a consequence of concussion and chronic back problems. (Dec. 10; Dep. Butler 45-46, 49.) The judge adopted Dr. Butler's opinion that the employee's back problems caused him to have memory problems and problems focusing on his job duties, but the judge was not persuaded that the employee's depression was causally related to the work injury. (Dec. 13.) The judge adopted the opinion of Dr. Butler, who believed that the employee's concussion did not restrict the employee from functioning intermittently as he had between 1989 and February 2, 1994, when he left work. (Dec. 13; Statutory Exhibit A.)
Accordingly, the administrative judge found the employee was totally incapacitated from February 2, 1994 through April 14, 1995, the date of Dr. Butler's examination. He found the employee was thereafter partially incapacitated, and ordered ongoing § 35 benefits based on an earning capacity of $280.00 per week.
The self-insurer contends that there is no medical evidence to support the judge's award of compensation for the periods of total and partial incapacity compensation ordered. We disagree. The opinion of Dr. Butler established causal relationship between the industrial injury and the employee's chronic back pain. (Dec. 8-10; Dep. Butler 28-31.) As to the extent of the employee's medical disability, Dr. Butler opined that low back pain was the current deterrent affecting the employee's ability to return to work. (Dep. Butler 28.) He testified that the employee's back remained unstable and would cause periods of disability. (Dep. Butler 29, 30.) We find ample support for the judge's finding of continuing partial incapacity in the adopted medical opinion of Dr. Butler. (Dec. 13.)
However, there is merit to the self-insurer's appeal from the award of total incapacity compensation for the interval from his leaving work on February 2, 1994 until examined by Dr. Butler on April 14, 1995. Dr. Butler did not opine that the employee was totally disabled for any period of time. The judge did not make a vocational analysis that would justify a total award where there was partial medical disability. See Scheffler's Case, 419 Mass. 251, 256 (1994). We are therefore left to speculate as to the basis of the judge's award of § 34 benefits from February 2, 1994 to April 14, 1995.
Accordingly, we recommit the case for further findings on the extent of the employee's incapacity between February 2, 1994 and April 14, 1995. A conclusion on incapacity at any particular time ordinarily requires expert medical testimony. George v. Chelsea Hous. Auth., 10 Mass. Workers' Comp. Rep. 22, 25 (1996). As there is no medical evidence to fill this "gap," we must remand this case. See Miller v. Metropolitan Dist. Comm'n, 11 Mass. Workers' Comp. Rep. 355 (1997); Wilkinson v. City of Peabody, 11 Mass. Workers' Comp. Rep. 263(1997). We note that the employee did request additional medical testimony on grounds other than the gap problem, and that request was denied. (Dec. 12.) On remand, the administrative judge may take such additional evidence or testimony as is necessary to determine the employee's extent of any incapacity from February 2, 1994 through April 14, 1995.
So ordered.
_____________________ Carolynn N. Fischel Administrative Law Judge
_____________________ Frederick E. Levine Administrative Law Judge
_____________________ Sara Holmes Wilson Administrative Law Judge
FILED: May 28, 1998