Opinion
BOARD No. 079491-90
Filed: December 30, 1997
REVIEWING BOARD DECISION
(Judges McCarthy, Maze-Rothstein and Smith)
APPEARANCES
James F. Fitzgerald, Jr., Esq., for the employee.
Jean M. Shea, Esq., for the insurer.
The insurer in this appeal to the reviewing board argues that an administrative judge's award of § 34A permanent and total incapacity benefits was arbitrary and capricious. The insurer asserts that the judge's subsidiary findings regarding the employee's physical limitations were largely unsupported by the evidence. The insurer is correct, and we recommit the case for a new hearing on the extent of the employee's incapacity.
As the administrative judge no longer serves in the department, we transfer the case to the senior judge for reassignment.
Kurt Sperber, now 67 years old, was educated through the eighth grade in Germany and emigrated to the United States in 1956. His entire work training and experience has been as a bricklayer. (Dec. 4.) The employee injured his right shoulder and left hip when he slipped and fell while working on June 6, 1990. (Dec. 5.) The insurer accepted the employee's injury and commenced payment of § 34 weekly temporary total incapacity benefits. (Dec. 5.) At the time of his injury the employee was sixty years old. (Dec. 4.) The employee was diagnosed as having suffered a complete tear of the rotator cuff of the right shoulder and an aggravation of pre-existing degenerative arthritis of the left hip. (Impartial Examiner Report, June 6, 1995.) The employee underwent surgery to repair his right shoulder on September 11, 1990. (Dec. 5.)
In 1995, the insurer brought a complaint for discontinuance of weekly incapacity benefits, to which the employee joined his claim for § 34A permanent and total incapacity benefits. After a § 10A conference, an administrative judge ordered that the insurer pay § 35 partial incapacity benefits based on an average weekly wage of $900.00 and a weekly earning capacity of $150.00. The insurer appealed to a full evidentiary hearing. (Dec. 2-3.)
At the hearing, the insurer defended against the employee's de novo claim for permanent and total incapacity benefits by raising the issues of causal relationship, disability and extent of incapacity, and the § 35E presumption of non-entitlement to temporary weekly compensation benefits due to eligibility for old age social security or pension benefits. (Dec. 3.) The judge concluded that the employee planned to continue working until at least the age of seventy and therefore denied the insurer's request for the § 35E bar. (Dec. 8.) That aspect of the decision, was not challenged on appeal by the insurer.
A § 11A impartial medical examiner restricted the employee from carrying more than twenty pounds at any time and from jobs which would require working at shoulder level, climbing ladders or work that required walking. (Impartial Examiner Report.) The doctor opined that the employee was permanently partially disabled by his work-related injuries, and that he could not return to his former work of laying bricks. (Dec. 6.) As to medical disability, the judge found the following physical limitations: The employee "is unable to lift heavy objects and cannot lift his right arm overhead. He is unable to stand for long periods and cannot bend, squat or walk on uneven ground or climb ladders and staging. The employee has to lie down frequently and suffers increasing pain when attempting to increase his activities." (Dec. 6.) The judge concluded that the employee's incapacity was permanent and total ". . . from performing any significant gainful employment." (Dec. 7.) Accordingly, the judge ordered that the insurer pay § 34A benefits. (Dec. 8.) The insurer appeals to the reviewing board.
The insurer argues that the judge's subsidiary findings on the employee's physical limitations are not based in the evidence. We agree that several of the findings are unsupported. Our review of the record reveals that the employee never testified that he could not bend or squat, that he could not walk on uneven ground, or that he had to lie down frequently. On the contrary, the employee affirmatively stated that he could bend and kneel, but kneeling "aggravates the hip." (Tr. 18.) Moreover, the employee did not testify that he could not lift his right arm overhead. Rather, his testimony was that he could not do so too often. (Tr. 19.) Nor did the doctor so opine. The doctor believed that the employee could not work at shoulder level or overhead. (Impartial Examiner Report; Dep. 11.) These factual errors go the heart of the incapacity determination and, therefore, a recommittal is necessary. Herrera v. Cambridge Imported Autobody, 11 Mass. Workers' Comp. Rep. ___ (October 17, 1997); Pernorio v. Ara-Smith Transfer, 8 Mass. Workers' Comp. Rep. 142, 143 (1994). All in all, "[s]ince we are unable to determine the effect the erroneous finding[s] had on the judge's general findings and award of benefits we have no choice but to set the decision aside." Collins v. Leaseway Deliveries, Inc., 9 Mass. Workers' Comp. Rep. 211, 212 (1995). See O'Neil v. E.G. G., 9 Mass. Workers' Comp. Rep. 72 (1995) (recommittal required where reviewing board unsure how much the judge's erroneous findings may have affected his reasoning and conclusions).
The only reference to walking on uneven ground was in a question to the doctor at his deposition, which the examining attorney withdrew upon objection. (Dep. 11.) The doctor did testify that the employee should not walk on "very irregular surfaces," such as a pile of bricks. (Dep. 20.) The employee testified that on a typical day he tried to walk . . . "maybe half an hour along the streets[,]" (Tr. 17), and could . . . "walk anywhere from a mile to maybe a mile and a half." (Tr. 18.)
We therefore reverse so much of the decision as addresses the employee's disputed incapacity status. We recommit the case for a hearing de novo on that issue, as the judge who filed the decision no longer serves in the department. In the meantime, we reinstate the 1995 conference order of § 35 partial incapacity benefits based on the stipulated average weekly wage of $900.00 and the assigned earning capacity of $150.00 per week, effective as of the filing date of this opinion.
So ordered.
________________________ William A. McCarthy Administrative Law Judge
________________________ Susan Maze-Rothstein Administrative Law Judge
________________________ Suzanne E.K. Smith Administrative Law Judge
Filed: December 30, 1997