Opinion
BOARD No. 039323-94
Filed: May 27, 1998
REVIEWING BOARD DECISION
(Judges Fischel, Levine and Wilson).
APPEARANCES
Wayne Gallo, Esq., for the employee.
Mary Ann Calnan, Esq., for the insurer.
The employee appeals from a decision in which his claim for G.L.c. 152, § 34A permanent and total incapacity weekly benefits was denied and instead he was awarded § 35 partial incapacity benefits with an earning capacity of $81.25 per week. We recommit the case for further findings.
Mr. Thompson is presently sixty-three years old, has attained a seventh grade level education and has worked his entire life as a carpenter. (Dec. 288.) He began employment with Tom Hague III Builders in early 1994. (Dec. 288.) On August 17, 1994, while in the course of his employment, the employee fell nine feet from a roof and landed on a cement patio. (Dec. 288.) As he landed, his right leg twisted under his body and broke in four places. At the same time, his foot twisted 180 degrees and faced the wrong direction. (Dec. 288.) A co-worker pulled on the employee's leg and manipulated it back into place. "[S]ome time later[,]" the employee drove himself home. (Dec. 288.)
After resting at home for three days, without improvement to his leg, the employee went to the hospital. There, surgery was recommended. The employee declined and opted to use a knee brace and a cane. He then embarked upon a physical therapy program. (Dec. 288) The insurer accepted the case and initially paid § 34 temporary total incapacity benefits. Later, the insurer filed a request to modify the compensation payments. (Dec. 287.) On May 23, 1996, pursuant to § 10A, the matter was conferenced before an administrative judge. The administrative judge filed an order denying the insurer's motion. The insurer then appealed to a hearing de novo before the same administrative judge. (Dec. 287.)
On July 9, 1996, the employee was examined by Dr. Thomas Antkowiak, the § 11A physician. (Dec. 287.) Neither party deposed the doctor and his medical report was entered into evidence as statutory exhibit 1. (Dec. 287, 289.) The doctor diagnosed displaced compression fracture of the lateral tibial plateau of the right knee, which, left untreated, created a deformity of the right knee, including an articular cartilage and joint incongruity along with an instability related to the lack of bone substance of the lateral tibial plateau. Further, the doctor opined that if left untreated the condition would result in permanent partial disability. (Statutory Ex. 1, p. 4; Dec. 289-90.) Even with treatment, the doctor opined that the employee would not be able to return to work as a carpenter. The § 11A physician stated that the employee would always need walking aids regardless of the use of a knee brace. Additionally, the § 11A physician precluded the employee from any job that required lifting more than ten pounds, bending, climbing, walking on uneven ground, or prolonged standing or walking. The doctor limited the employee's work capacity to sedentary work. (Statutorq Ex. 1, pp. 4-5; Dec. 289-90.)
The administrative judge adopted the medical opinion of the impartial examiner, along with the physical restrictions he imposed, and determined that the employee was partially disabled. (Dec. 290.) Additionally, the judge credited the employee's testimony, except as to his [the employee's] assertion that he had no earning capacity. (Dec. 290.) He found that the employee had a "severe" disability (Dec. 290) which allowed him to "walk short distances with his cane and knee brace[.]" (Dec. 289.) He noted that sometimes the employee could walk as much as a mile, but it would take him about three hours. (Dec. 289.) The employee awoke with pain during the night and wore a knee immobilizer in bed to prevent his knee from popping out, which it had done several times since the work injury. (Dec. 289.) Concluding that the employee "is further handicapped by his lack of education, (seventh grade) and his advanced age (61)", the judge found that he had "only the smallest nontrifling [sic} earning capacity." (Dec. 291.) Nevertheless, the judge assigned the employee an earning capacity of $81.25 per week from July 9, 1996 forward (Dec. 291-292), reasoning:
[The employee] worked for 47 years in a respected and skilled trade. For part of that time, he employed his sons in his carpentry business. So he is uneducated in the academic sense, but not so much in the ways of the working world. His experience in the carpentry business provides him with some useful transferable skills, such as accountability, knowledge in the running of a generic business, and the skills inherent in a strong work ethic."
(Dec. 291.) We have the case on appeal by the employee, who raises several issues: (1) that the judge erred where he failed to consider the evidence submitted regarding the suitability of vocational rehabilitation; (2) that the administrative judge failed to consider all relevant and material findings in the impartial medical report; and (3) that the earning capacity assigned by the administrative judge is without support. (Employee's brief, 6-9.) The third issue is dipositive of this case.
The determination of loss of earning capacity involves both a medical evaluation of the employee's physical impairment and an economic assessment of how that impairment affects the employee's ability to earn wages. Scheffler's Case, 419 Mass. 251, 256 (1994). Because physical handicaps have a different impact on earning capacity in different individuals, a judge must consider how the employee's education, training, age and experience affect his ability to cope with the physical effect of an injury. Id.; see Frennier's Case, 318 Mass. 635, 639 (1945). Although a judge has considerable discretion in determining the amount of an employee's earning capacity, Mulcahey's Case, 26 Mass. App. Ct. 1, 3 (1988), such a determination cannot be arbitrary and capricious, and must be supported by adequate subsidiary findings grounded in the evidence. Beagle v. Crown Serv. Sys., Inc., 10 Mass. Workers' Comp. Rep. 282, 284 (1996). Findings that merely detail the employee's activities or make token reference to the criteria for assessment set out in Frennier's Case, supra and Scheffler's Case, supra are inadequate. Peters v. City of Salem Cemetery Dept., 11 Mass. Workers' Comp. Rep. 55, 58 (1997).
Here, the judge has failed to adequately explain the grounds for his determination that the employee has an earning capacity of $81.25 per week. (Dec. 289.) We are left to speculate what Mr. Thompson, unable to return to his heavy work as a carpenter, might actually do in the open labor market to earn more than trifling wages. See Russell v. Micron Engineering, 12 Mass. Workers' Comp. Rep., ___, slip op. at 5 (April 10, 1998). The judge's statement that `[h]is experience in the carpentry business provides him with some useful transferable skills, such as accountability, knowledge in the running of a generic business, and the skills inherent in a strong work ethic" (Dec. 291) is no more helpful than the inadequate statement made by the judge in Pappalardo v. J A Builders, 12 Mass. Workers' Comp. Rep. ___, slip op. at 3-5 (March 13, 1988). There, we found the judge's earning capacity assignment to be arbitrary and capricious where he supported his finding with the statement that the employee, a construction laborer with an eighth grade education, had "learned the very important life skill of arising in the morning for thirty years, getting to his job site on time and ready for work; and working for an obviously happy and satisfied employer for thirty years." Id at 3.
The judge's findings here, as in Pappalardo, supra, offer no meaningful explanation of the range and type of work activities the employee could perform. See Reid v. Westinghouse Elec., 10 Mass. Workers' Comp. Rep. 761, 763 (1996) (decision arbitrary and capricious where judge never made findings about type and amount of work which could be performed by a fifty-six year-old employee with a tenth grade education whose only relevant work experience was heavy labor as a millwright for three decades); Marckini v.Turner Constr. Co., 10 Mass. Workers' Comp. Rep. 723, 724-725 (1996) (decision lacks finding explaining basis for the award of an earning capacity where it does not contain information regarding the range and types of activities that can be performed by the employee, a fifty-nine year-old carpenter who is permanently and totally medically disabled from working as a carpenter but can perform light housework on good days and can sometimes walk half a mile.) We cannot fathom what the judge meant by the vague term "accountability" nor can we foresee the result of its application in the case before us. Additionally, there is insufficient evidence in the record to support the judge's finding that the employee ran a business and therefore has the skills necessary to run an imaginary "generic" business. SeeCottrell v. Union Street Bus Co., 9 Mass. Workers' Comp. Rep. 458, 460 (1995) (where erroneous finding may influence result in a case, error is not harmless). Finally, the existence of a strong work ethic does not automatically convert into tangible skills as reasoned by the judge. Regardless of the depth of an individual's work ethic, if he lacks the training or the physical ability to perform productive work, he is left only with the will and not the means.
The literal meaning of accountability is "1. Liable to being called to account; answerable . . . 2. That can be explained: an accountable phenomenon." The American Heritage Dictionary 9 (3d ed. 1993)
The entirety of evidence which could possibly be construed as referring to any employee-run business was a single ambiguous question by insurer's counsel at hearing:
"Q. You say your son was involved in the business?
A. He was, yes. He is not anymore. He works for another outfit." (Tr. 29, lines 23-25.)
It is not clear whether the employee understood "the business" to mean carpentry in general as opposed to a self-owned operation. This one question and answer in and of itself is not enough to sustain a finding that the employee was a self-employed businessman.
Because the decision lacks any true analysis of how the employee's age, education, training and experience combine with his medical condition to explain the earning capacity assigned, Beagle v.Crown Serv. Sys., Inc., supra at 284, we cannot tell whether correct rules of law have been applied. See Praetz v. Factory Mut. Eng'g Research, 7 Mass. Workers' Comp. Rep.45, 47 (1993). Therefore, we recommit this case to the administrative judge for further findings on the earning capacity issue consistent with this opinion. Whereas the vocational suitability documentation was admitted into evidence, (Dec. 287), the administrative judge should also consider that instrument when re-addressing earning capacity.
So ordered.
_____________________ Carolynn N. Fischel Administrative Law Judge
_____________________ Frederick E. Levine Administrative Law Judge
_____________________ Sara Holmes Wilson Administrative Law Judge
FILED: May 27, 1998