Opinion
BOARD No. 075947-89
Filed: February 20, 1996
REVIEWING BOARD DECISION
(Judges Smith, Maze-Rothstein and Kirby)
APPEARANCES
James S. Aven, Esq., for the employee
Linda Scarano, Esq. at hearing, Paul Moretti, Esq. on appeal, for the insurer
The self-insurer appeals from the decision of an administrative judge which authorized it to discontinue § 34 temporary total incapacity benefits, but ordered it to commence payment of § 35 partial incapacity benefits. We find no error in the judge's allowance of additional medical testimony pursuant to G.L.c. 152, § 11A(2). However, because in his decision the judge failed to perform the legal analysis required by § 35D regarding an offer of suitable work, we remand. G.L.c. 152, § 11C.
Thompson, an admitting registrar at the Sturdy Memorial Hospital, injured her back while lifting a box of computer forms on October 27, 1989. She was able to work until January 16, 1990 when she could no longer perform her duties because of pain. As a result of this injury, Thompson underwent a surgical hemilaminectomy at the L5-S1 level, with disc removal.
The self-insurer assumed liability and paid § 34 incapacity benefits from January 16, 1990 and continuing. On August 17, 1992, the self-insurer filed a request for modification or discontinuance. The administrative judge denied that request in a conference order filed on December 31, 1992. The self-insurer appealed the order for continuing § 34 total compensation.
At the evidentiary hearing on July 15, 1993, the judge allowed the employee's motion to offer additional medical testimony on the grounds that the § 11A medical examiner's report and deposition constituted an inadequate medical picture. (Dec. 8-9.) The employee, Ms. Thompson, and Phyllis Howard, an employment specialist from the Sturdy Memorial Hospital, testified at this hearing. The judge listed a Mr. Corcoran, Director of Human Resources at the hospital, as a witness and recited in his decision that Mr. Corcoran testified as to the availability of a job accommodating Thompson's physical restrictions. (Dec. 2, 8.) It appears that the judge simply transposed the wrong name and job title for the actual witness who made these statements, Ms. Howard. As suggested in the insurer's brief, we construe this simply as a scrivener's error. (Ins. Brief 9.)
The relevant portions of § 11A read as follows: "(2) When any claim or complaint involving a dispute over medical issues is the subject of an appeal of a conference order pursuant to [G.L. c. 152, § 10A], the parties shall agree upon an impartial medical examiner from the roster to examine the employee and submit such choice to the administrative judge assigned to the case within ten calendar days of filing the appeal, or said administrative judge shall appoint such examiner from the roster. . . . The report of the impartial medical examiner shall be admitted into evidence at the hearing. Either party shall have the right to engage the impartial medical examiner to be deposed for purposes of cross examination. Notwithstanding any general or special law to the contrary, no additional medical reports or depositions of any physicians shall be allowed by right to any party; provided, however, that the administrative judge may, on his own initiative or upon a motion by a party, authorize the submission of additional medical testimony when such judge finds that said testimony is required due to the complexity of the medical issues involved or the inadequacy of the report submitted by the impartial medical examiner. The fact that the impartial examiner has not treated the employee shall not constitute sufficient reason for finding any report of an impartial medical examiner inadequate."
The judge found Thompson was totally incapacitated until December 6, 1993, and partially incapacitated thereafter. The judge relied on two medical opinions to make his incapacity determination. Both doctors were of the opinion that Thompson could perform a light-duty sedentary job that requires occasional bending with restrictions on lifting more than ten or fifteen pounds and with an opportunity to sit and stand, as needed. (Dec. 9.) The judge concluded that all the evidence, including the credible testimony of Thompson, warranted a finding of an ongoing partial medical disability causally related to the October 27, 1989 industrial injury.
December 6, 1993 was the date of receipt of Dr. Gibson's deposition. Neither party raised the issue of whether this date was a proper one at which to change the extent of incapacity. See Antonellis v.Raytheon Co., 8 Mass. Workers' Comp. Rep. 386, 388 (1994) (date chosen for decreasing level of incapacity must be grounded in the evidence).
Based upon these factual findings, the judge ordered the insurer to terminate § 34 compensation as of December 6, 1993 and commence payment of continuing § 35 partial incapacity benefits at the rate of $80.00 per week based on an average weekly wage of $245.00 with an earning capacity of $125.00 per week, as well as dependency benefits and related medicals. The judge authorized the self-insurer to credit itself with an amount not to exceed $10.00 per week for overpayment and ordered the self-insurer to pay Thompson's counsel fees pursuant to § 13A.
ISSUES
The self-insurer seeks reversal raising several issues on appeal. We address only two as they are dispositive of the appeal: 1) Did the judge err in allowing medical evidence in addition to the report of the § 11A impartial medical examiner? 2) Did the judge err in awarding an earning capacity which was less than the employer's offer of suitable work?
The other issues not reached by this opinion are: 1) Is the judge's finding that the employee's present disability is causally related to the industrial injury inconsistent with the opinion of the impartial examiner? 2) Did the judge fail to adopt the opinion of any of the medical experts? 3) Did the judge order recoupment at a rate inconsistent with G.L.c. 152, § 11D(3)? 4) Did the judge improperly award the employee counsel fees?
LEGAL DISCUSSION
I. THE JUDGE DID NOT ERR IN ALLOWING THE MOTION FOR ADDITIONAL MEDICAL EVIDENCE.
The self-insurer contends that the judge erred by allowing additional medical evidence without making a finding that the issues were complex or that the § 11A opinion was inadequate. We find no merit to this argument as the judge did rule on inadequacy.
The judge allowed the employee's motion "to offer additional medical testimony on the grounds that the impartial examiner's report and deposition constituted an inadequate medical picture. . ." (Dec. 8.) The judge set forth the rationale that he "based [his] allowance of the employee's motion upon a close and careful review of the impartial examiner's report and subsequent deposition which, upon reflection, I felt demonstrated that the . . . examiner was somewhat argumentative and intransigent in his opinions during the taking of his deposition." (Dec. 9.) In addition, the judge "noted that at one period of time during her incapacity, [The employee] was being treated for [a] motor vehicle accident, breast cancer, and low back pain as a result of her industrial accident." (Dec. 6.)
Whether the § 11A report is inadequate or complex is vested in the sound discretion of the administrative judge. G.L.c. 152, § 11A (2) (the administrative judge may authorize the submission of additional medical evidence); Dupras v. Water Div. of Millipore, 10 Mass. Workers' Comp. Rep. ___, slip op. at 5-6 (January 5, 1996). We find no abuse of discretion here. The reasons given by the judge for permitting additional medical evidence were not arbitrary, capricious or contrary to law.
To the contrary, the judge acted in accordance with the spirit of § 11A. Procedures must "further the accuracy" of a judge's determinations on pivotal contested issues or serious due process problems arise. George v. Chelsea Hous. Auth., 10 Mass. Workers' Comp. Rep. ___, slip op. at 5 (January __, 1996), citing Aime v. Commonwealth, 414 Mass. 667, 682 (1993). The judge's ruling to allow further medical evidence added to his ability to reach a fair and just conclusion. It was proper for the judge to permit additional evidence where he found it truly needed. See Mendez v. The Foxboro Co., 9 Mass. Workers' Comp. Rep. ___ (November 3, 1995) (judge's ruling of inadequacy upheld).
II. THE JUDGE'S FINDINGS ON EARNING CAPACITY ARE INADEQUATE FOR APPELLATE REVIEW.
When addressing earning capacity issues, a judge should determine the extent of the employee's medical limitations caused by the work injury and then considering such factors as age, education, training, work experience and any other elements that are relevant to her ability to earn, make a judgement as to the amount that the employee is capable of earning with such injury limitations. Scheffler's Case, 419 Mass. 251, 256 (1994);Frennier's Case, 318 Mass. 635, 639 (1945). In making an award of weekly benefits, the judge must apply the appropriate formula in §§ 34 and 35, using the amount of current earning capacity as determined pursuant to § 35D.
Section 35D provides four alternative means of determining current earning capacity and instructs the judge to use the greatest amount of the four: the actual weekly earnings of the employee; the earnings the employee is capable of earning in the job held at the time of injury, provided the job is made available to her and she is capable of performing it; the earnings an employee is capable of earning in a particular suitable job made available to her and which she is capable of performing; or the earnings the employee is capable of earning. Seaman v. A.T. T. Technologies, 8 Mass. Workers' Comp. Rep. 86, 88-89 (1994). See Major v. Raytheon Corp., 7 Mass. Workers' Comp. Rep. 90 (1993) (discussing application of § 35D).
Here the decision lacks both a Frennier analysis and specific findings regarding the offer of work. Section 35D requires the judge, when confronted with a job offer, to determine whether the job offer is bona fide, within the employee's physical and mental capacity to perform, and bears a reasonable relationship to the employee's work experience, education, or training either before or after the employee's injury. G.L.c. 152, § 35D (3) and (5). On remand the judge shall make appropriate factual findings on the evidence presented. See Tr. 61-69 (testimony of Ms. Howard).
Section 35D(3) provides that "[t]he 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 earnings capability . . ."
CONCLUSION
We affirm the judge's ruling on the motion for additional medical evidence. However, because the decision is inadequate for appellate review on the issue of the employee's earning capacity, we remand for further findings of fact pursuant to G.L.c. 152, § 11C. Because the extent of incapacity remains to be decided on remand, we are unable to determine whether the employee "prevailed" at hearing on the insurer's appeal from conference order. Such success is a necessary precondition for an award of counsel fees to the employee. On remand the judge is to apply G.L.c. 152, § 13A(5) and make the appropriate fee award.
As appearing in St. 1991, c. 398, § 45 which by § 103 applies to services performed after the effective date of that act, December 23, 1991.
Pending a remand decision, the hearing order of compensation shall remain in effect. In light of the passage of time during the pendency of the appeal, if either party alleges a change in medical condition or vocational skills since the date the record closed or the judge finds that justice so requires, additional evidence may be taken prior to the entry of the remand decision.
So ordered.
__________________________ Suzanne E. K. Smith Administrative Law Judge
__________________________ Edward P. Kirby Administrative Law Judge
_________________________ Susan Maze-Rothstein Administrative Law Judge
Filed: February 20, 1996