Opinion
BOARD No. 08829689
Filed: January 24, 1997
REVIEWING BOARD DECISION
(Judges Fischel, Wilson and Kirby)
APPEARANCES
Nancy L. Hall, Esq., for the employee on appeal.
Daniel C. Finbury, Esq., for the employee at hearing.
Frederick M. Fairburn, Esq., for the self-insurer.
The employee appeals from a decision in which an administrative judge denied his request for workers' compensation benefits due to a claimed 1989 work-related back injury. The employee had worked successfully in a light duty eight-hour per day capacity for more than two years after the 1989 work incident, and then alleged incapacity as of the time of a plant-wide change to twelve hour shifts in 1992. Because the decision fails to address properly and fully the issues in controversy, we recommit the case for further findings.
A summary of the judge's subsidiary findings follows. On December 11, 1989 the employee, who had been a manual laborer for the employer for twenty years, hurt his back while working. (Dec. 4.) He reported the incident to his foreman but did not miss any time from work. Id. He was subsequently placed on light duty capacity from that time until he finally left work in 1992. (Dec. 4-5.) The company policy then was to return their injured employees to work as soon as possible even if an easy "make work" position needed to be created. (Dec. 5.) Injured employees were also allowed to rest as needed. Id. Consistent with that policy, the employee's light duty job consisted mainly of assembling and labeling cardboard boxes. Id. It was stipulated that the employee received treatment for his back injury during the years 1989-1992. (Dec. 2.)
The employee had sustained two prior back injuries between 1985 and 1989 while working for the employer. After each incident, he was placed on light-duty for one month and did not lose any time from work. (Dec. 4.)
In March 1992, the employer changed the work schedules for all employees at the plant from eight-hour shifts to twelve-hour shifts. (Dec. 5.) The employee was required to work in twelve-hour shifts from 7:00 AM to 7:00 PM for three days one week and four days the next, and was required to work every second weekend. Id.
On the first twelve-hour work day the employee was assigned to drive a standard shift forklift, a task he had not done in the more than two years he had been on light duty. Id. He did not complain, fearing he would be fired. Id. After working that twelve-hour shift, his pain increased significantly. (Dec. 5-6.) That night he could not get comfortable and spent most of the night awake and in pain. (Dec. 6.) His wife and daughter spent those awake hours attempting to comfort him. Id.
The next day the employee complained about the forklift work and was placed back on labeling detail. Id. He worked the second twelve-hour shift, and then went home. Id. He was due to return to work on March 13, 1992 but did not return that day or any day since then. Id.
The employee's supervisor, David Valure, considered Mr. Zatsos to be an excellent employee, who had not always been able to perform the tasks he had been assigned to do in the past few years. Id.
The company discussed retirement with the employee several times both before and after March 10, 1992. (Dec. 7.) The employee had intended to work as long as he was able and was not interested in retirement. Id. On March 10, 1992 the employee met with James Kirkiles, the plant manager, and discussed his unhappiness with the new twelve-hour shifts. Id. As of the date of hearing, the employee, then sixty-eight years old, had not exercised his rights relating to retirement. Id.
Pursuant to G.L.c. 152, §§ 34, 30, the employee filed claim for compensation, and the self-insurer denied the employee's claim. (Dec. 1.) At hearing, the self-insurer raised the issues of liability, causal relationship, disability and extent thereof. Id. The Employer's First Report of Injury for the December 11, 1989 incident was placed in evidence. (Dec. 2; Employee's Ex. 4.) There was no § 11A impartial medical exam. (Dec. 3.) The parties submitted their own expert medical evidence in the form of reports and records. See (Dec. 2-3.) The judge summarized the opinions of several doctors who had seen the employee "since his 1989 injury". (Dec. 8.) The employer's witnesses acknowledged the significant restrictions the employee had at work because of his back pain. (Dec. 7.)
In further subsidiary findings, the judge found that the employee experiences current pain in his low back which radiates down his right leg to his foot. (Dec. 8.) He found that the employee took medication which relieved the right leg pain, but that the employee continued to experience a burning sensation in the right leg. Id. He also found that the employee experienced occasional pain in his left leg. Id.
The judge then made his General Findings of Fact. See (Dec. 11-12.) First, he found that "[t]here is no question that the employee suffers from a significant back ailment." (Dec. 11.) The judge then found that the employee left his employment due to his dissatisfaction with the change to the twelve-hour work shift, and not because of a worsening of his back condition. Id. He concluded that the employee's work activities in March 1992 had not exacerbated his prior industrially injured back condition to a degree that would have required more than a couple of days in which to recover. Id. He also found "[t]he back injury suffered by the employee is significantly disabling, and but for the great efforts of the employer to find work for him, his extent of disability would be at least a substantial partial disability. (Dec. 11-12.) Based on the continuing availability of the twelve-hour per day job labeling boxes at his past pay level, the judge decided that the employee was not entitled to any compensation for work related incapacity, and denied and dismissed his claim. (Dec. 12.)
Aggrieved, the employee appeals to the reviewing board. He argues that the decision fails to address the primary question of whether an industrial injury occurred in 1989. The employee also argues that the decision fails to apply the appropriate analysis under G.L.c. 152, § 35D(3), regarding the suitability of the light-duty job with twelve hour shifts, in view of the employee's medical impairments. We agree with both contentions, and recommit the case as a result.
We see no merit to the employee's contention that the judge's conclusion that there was no aggravation of his back impairment in March 1992 was erroneous. We summarily affirm the decision as to that issue.
This case involves the allegation of a 1989 work injury that involved no lost work time because after the 1989 incident the employee returned to "make work". The issue of liability for the December 1989 industrial injury was raised before the judge at hearing, but it appears he overlooked the fact that liability for the 1989 incident had never been adjudicated. (Dec. 1, 3, 4.) A determination of liability was essential, as entitlement to § 30 medical benefits was part of the employee's claim. Medical benefits may be payable even in the absence of entitlement to weekly incapacity benefits. See Buonopane v. Vappi Co., 10 Mass. Workers' Comp. Rep. 88, 91 (1996); Tigano v. Acme Boot Company, 8 Mass. Workers' Comp. Rep. 145, 148 (1994). The judge's general findings address only the question of whether an exacerbation or aggravation of the employee's back condition occurred in March 1992. While the judge's conclusion that there was no such "worsening" of the employee's medical condition in 1992 is not erroneous, the fact that it assumes — namely, the employee's "significant back ailment" since 1989 — has yet to be addressed. (Dec. 11.) As an "issue in controversy," the judge must address liability for that 1989 industrial accident. G.L.c. 152, § 11B. Recommittal is appropriate. G.L.c. 152, § 11C.
If, on recommittal, the judge determines that liability attaches for the 1989 industrial injury, he must then determine whether incapacity stemming from the 1989 injury was the reason the employee left work in March 1992. He must look to the provisions of G.L.c. 152, § 35D(3), which states, in pertinent part:
For purposes of sections thirty-four, thirty-four A and thirty-five, the weekly wage the employee is capable of earning, if any, after the injury, shall be the greatest of the following: . . .
(3) The earnings the employee is capable of earning in a particular suitable job; provided, however, that such job has been made available to the employee and he is capable of performing it. The employee's receipt of a written report that a specific suitable job is available to him together with a written report from the treating physician that the employee is capable of performing such job shall be prima facie evidence of an earning capability under this clause.
G.L.c. 152, § 35D (as added by St. 1985, c. 572, § 45). "For purposes of this chapter, a suitable job or employment shall be any job that the employee is physically and mentally capable of performing . . . ." G.L.c. 152, § 35D(5) (emphasis added). A "suitable" job, under this statute, can only be one which the employee is "physically . . . capable of performing."
The physical issue involved in the question of a suitable job offer requires an expert medical opinion. Here the offered job was modified from eight hour shifts to twelve hour shifts.
A general description of the employee's light duty job, which he had been performing since 1989, is contained in Insurer's Ex. 2. However, that document fails to mention the important distinction that put the theretofore performable job into question as of March 1992 — that the employee would be required to work twelve straight hours per shift.
The judge did not explain, based on the medical evidence, whether the employee could physically perform the revised work hours. In order to reach the determination of suitability, that question must be answered.
On recommittal this fact must be properly presented as a condition of the employer's light duty job offer, pursuant to § 35D(3). Any changes in the employer's rest policies must also be considered. Findings must be made as to both matters. The judge must then determine whether the alteration of the job "impose[d] requirements considerably more demanding" on the employee. See Scheffler's Case, 419 Mass. 251, 260 (1994).
We therefore recommit the case for the judge to make further findings regarding 1) liability for the 1989 industrial injury and, if liability attaches, 2) the employee's incapacity status, with particular regard to the provisions of G.L.c. 152, § 35D(3). The question of earning capacity for non-trifling work on the open labor market should be addressed as well. Scheffler's Case, supra. Ability to do "make-work" does not establish an earning capacity on the open labor market. See Frazier v. Conagra Inc., 552 So.2d 536 (La.Ct.App. 1989), writ denied, 559 So.2d 124 (1990). The judge may take further evidence in his discretion.
So ordered.
__________________________ Carolynn N., Fischel Administrative Law Judge
__________________________ Edward P. Kirby Administrative Law Judge
__________________________ Sara Holmes Wilson Administrative Law Judge
Filed: January 24, 1997