Opinion
BOARD No. 02504793
Filed: April 16, 1997
REVIEWING BOARD DECISION (Judges Smith, Maze-Rothstein and McCarthy)
APPEARANCES
Michael C. Akashian, Esq., for the employee.
Dennis Maher, Esq., for the insurer at hearing.
Gerald A. Pugsley, Esq., for the insurer on brief.
The employee appeals from a decision of an administrative judge denying and dismissing his claim for compensation. Because the decision is inadequate for appellate review, we find it appropriate to recommit for further findings of fact and conclusions of law. G.L.c. 152, § 11C.
Son Tran, currently twenty seven years old, has five years of schooling in his native Vietnam. He has studied English since emigrating to the United States in 1987 but is unable to effectively communicate in English. (Dec. 2.)
In 1992 Mr. Tran began working for the employer as a laborer and machine operator performing assorted tasks such as carrying heavy boxes, cutting metal using a torch, and shoveling snow. He has no other work experience. (Dec. 2-3.) On June 1, 1993 Mr. Tran fell at work injuring his back. He has treated for back pain with several physicians and a chiropractor. In May, 1995 he was involved in an automobile accident in which he injured his back. He had not returned to work as of the hearing date. (Dec. 3.)
Pursuant to G.L.c. 152, § 7, the insurer paid § 34 temporary total incapacity benefits on a without prejudice basis from June 2, 1993 to November 24, 1993. Thereafter the employee filed a claim for further benefits which the insurer resisted. A § 10A conference was held and the administrative judge issued an order denying the claim. The employee appealed to a hearing de novo. (Dec. 2.)
At hearing, the insurer did not challenge initial liability, but instead disputed "disability and extent thereof, causal relationship and entitlement to §§ 13 and 30 medical benefits." (Ins. Ex. 1.) The employee was the only lay witness to testify. The 11A impartial examiner provided the only medical evidence. After hearing, the judge issued a decision finding that the employee sustained a back strain while working for the employer on June 1, 1993 and that the injury arose out of and in the course of his employment, but denying the employee's claims for §§ 34 and 35 weekly incapacity benefits and 30 medical benefits. (Dec. 4, 6.)
The judge made an explicit credibility finding of fact: "I do not accept the employee's testimony as to the level of pain he experiences." (Dec. 3.) She acknowledged the prima facie effect of the impartial medical examiner's report as to the employee's medical condition and did not afford prima facie weight to nonmedical conclusions contained in the report, adding that she must also consider the employee's age, education, background, training, work experience, mental ability and other capabilities. (Dec. 5.) She made the further finding of fact:
I have made my own determination that the employee is not credible and therefore has not established the credibility of his claim to be experiencing ongoing, disabling pain. The report of the impartial medical examiner, while supporting a diagnosis of back strain resulting from the June 1, 1993 injury at work, does not support a finding that the employee is disabled from all employment. Even if the employee has some residual disability resulting from the June 1, 1993 injury, rather than the May, 1995 automobile accident, I find that he is capable of non-trifling employment that would not require heavy lifting, pushing or pulling, such as light assembly work. Accordingly, the employee's earning capacity is at least equal to his average weekly wage. The employee has failed to prove any need for ongoing medical treatment for the June 1, 1993 injury at work. Id.
On appeal, the employee argues that the judge erred in denying his claim after finding that a personal injury occurred. Because the judge failed to make adequate findings and rulings, we cannot determine the merit of this argument.
G.L.c. 152, § 11B requires that the administrative judge set forth the issues in controversy, make a decision on each issue and give a brief statement of the grounds for each such decision. The employee placed in controversy the nature and extent of incapacity during the entire period of his claim. We are unable to understand from the decision whether the undisputed work related injury never incapacitated the employee at any point during the claimed period of incapacity or, whether after some period of disability, the employee recovered full work capacity and no longer required any medical treatment. The judge must specifically decide this issue.
On recommittal, the judge should address the employee's medical limitations chronologically from November 25, 1993, the date when the insurer terminated its voluntary payments without prejudice. The benefits voluntarily paid from the date of injury, June 1, 1993, to November 24, 1993 are not in issue. The new decision should specify whether, when and how much the injury affected the employee's ability to work. When the judge finds a partial physical ability to labor, the judge should analyze the extent of incapacity by considering the employee's physical impairment and functional limitations together with his age, education, prior work experience and other factors as set forth in Scheffler's Case, 419 Mass. 251, 255-256, 643 N.E.2d 1023, 1026 (1994). Thereafter, at each change in the employee's medical condition, the judge should readdress the extent of incapacity. Dawson v. New England Patriots, 9 Mass. Workers' Comp. Rep. 675, 677 (1995). As liability for the work injury was accepted, the employee was entitled to adequate and reasonable health care services. The judge should determine when the employee recovered sufficiently to no longer need them. See G.L.c. 152, § 30 ("The provisions of this section shall be applicable so long as such services are necessary").
Section 8 (1) of c. 152 provides in pertinent part: "An insurer which makes timely payments pursuant to subsection one of section seven, may make such payments for a period of one hundred eighty calendar days from the commencement of disability without affecting its right to contest any issue arising under this chapter. An insurer may terminate or modify payments at any time within such one hundred eighty day period without penalty if such change is based on the actual income of the employee or if it gives the employee and the division of administration at least seven days written notice of its intent to stop or modify payments and contest any claim filed. The notice shall specify the grounds and factual basis for stopping or modifying payment of benefits and the insurer's intention to contest any issue and shall state that in order to secure additional benefits the employee shall file a claim with the department and insurer within any time limits provided by this chapter.
Because the payments received by the employee during that period were not the product of a conference order, they cannot be recouped. Section 11D(3) only allows recoupment of monies paid pursuant to a conference order.
The employee next argues that the judge's credibility findings are unwarranted because the interpreter's limited skills caused confusion at both the hearing and the § 11A exam. Because the issue was not raised below, we decline to address it. See Quintero v. Alberti Construction, 10 Mass. Workers' Comp. Rep., 1996 WL 229468 at 3 (April 30, 1996);Pierre v. TAD Power Temp, 11 Mass. Workers' Comp. Rep. ___, slip op. at 3-4 (1997) (objections to the form of interpretation or its absence must be raised when the translation is required).
The employee also attacks the facial constitutionality of G.L.c. 152, § 11A, arguing that it violates his due process rights. After he submitted his brief, the Supreme Judicial Court definitively settled this issue. In O'Brien's Case, 423 Mass. 16 (1996), the court held the provision in 11A(2) which gives prima facie status to the report of the impartial medical examiner does not necessarily preclude a party from fairly being able to make out his position on a disputed medical issue, and concluded that the statute was not unconstitutional on its face. Id., 424 Mass. at 22. Therefore, the employee's appeal on this issue fails.
In summary, because the decision is inadequate for proper appellate review, we find it appropriate to recommit it for further findings of fact and conclusions of law consistent with this opinion. 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 recommittal decision.
So ordered.
__________________________ Suzanne E. K. Smith Administrative Law Judge
__________________________ William A. McCarthy Administrative Law Judge
__________________________ Susan Maze-Rothstein Administrative Law Judge
Filed: April 16, 1997