Opinion
BOARD No. 56008-91
Filed: October 19, 1995
REVIEWING BOARD DECISION
(Judges Fischel, McCarthy and Wilson)
APPEARANCES
Antonio Leo, Esq., for the employee.
Matthew F. King, Esq., for the insurer.
The employee appeals from a decision denying her claim for further § 35 partial incapacity benefits related to an industrial accident, for which she already had received a closed period of compensation benefits. We find that the decision enunciates an erroneous legal standard, but that on the facts and findings in this case, the error was harmless.
The employee fell to the floor during a discussion with her employer that occurred while she was at work on October 8, 1991. Her claim for incapacity stemming from alleged injuries to her back and right lower extremity was not accepted by the insurer, and came on for conference on August 19, 1992. In the Order that was generated as a result of the conference, the administrative judge awarded the employee consecutive closed periods of § 34 and § 35 benefits, terminating on August 5, 1992. The employee appealed, but withdrew prior to hearing; the insurer did not appeal. The employee then filed a claim for further compensation benefits under § 35, from August 5, 1992 and continuing, which was denied at conference. The employee appealed to a hearing de novo. (Dec. 1-2, 5)
The employee testified at hearing, and medical evidence was introduced by way of the § 11A impartial examiner's report. The impartial examiner opined that the employee was capable of working full time at her regular occupation. Pursuant to § 11A, the judge adopted the examiner's opinion as prima facie evidence of the employee's medical condition, and found that "the employee has not met her burden of proving a deterioration or worsening of her condition" since August 5, 1992, when her § 35 benefits had been terminated pursuant to the first, unappealed conference order. (Dec. 1, 5-6) The judge therefore denied and dismissed the employee's claim. (Dec. 7)
The judge correctly pointed out that the employee was within her rights to file a claim for further compensation benefits. (Dec. 4) SeeLichtenstein v. Goodyear Tire and Rubber, 7 Mass. Workers' Comp. Rep. 33 (1993). Extent of incapacity is an issue which is not amenable to disposition once and for all. Goulet v. APA Transportation Corporation, 8 Mass. Workers' Comp. Rep. ___ (November 7, 1994). However, the judge then applied a standard for the employee to meet in this subsequent claim for compensation that was inaccurate, and could have held the employee to a higher burden of proof than that which is properly applied under the Act. The employee, of course, had to prove that she suffered from the incapacity that she claimed. See Himmelman v. A.R. Gree. Sons, 9 Mass. Workers' Comp. Rep ___ (March 20, 1995). But she did not have to prove a "worsening" in order to claim such benefits, for it is sufficient that the employee establish a further period of incapacity causally related to the original work injury. See c. 152 §§ 16, 34, 35.
G.L.c. 152, § 16 enunciates this rule of law by stating:
When in any case before the department it appears that compensation has been paid or when in any such case there appears of record a finding that the employee is entitled to compensation, no subsequent finding by a member or the reviewing board discontinuing compensation on the ground that the employee's incapacity has ceased shall be considered final as a matter of fact or res adjudicata as a matter of law. . . .
The employee may, pursuant to § 16, pursue a claim for further compensation, which may be attributable to a worsening, or may not reflect a worsening. For example, at the time of a conference an employee could have returned to work even though such employment was beyond her abilities, and at some subsequent point, given up the effort which was untenable in the first place.
The requirement to prove a worsening applies when an employee is collecting § 35 partial incapacity benefits as of the time the temporary benefit maximum is reached, and then files a claim for § 34A permanent and total incapacity benefits. See Foley's Case, 358 Mass. 230, 232 (1970): see also Lally v. K.L.H. Research Development, 9 Mass. Workers' Comp. Rep. ___ (July 31, 1995) (such "worsening" is not limited to the employee's medical condition, and includes as well vocational factors.)
Nonetheless, even though the judge wrongly held the employee to the standard of establishing a worsening in her condition, the error here is harmless. The medical evidence before the judge, adopted by the fact finder, was that the employee was capable of performing work activities full time and without restriction. The judge noted that the parties did not request permission to depose the impartial examiner, and that the employee failed to advance any argument of inadequacy of the medical report or complexity of the medical issues. (Dec. 3). Since there was no medical evidence of incapacity after August 1992, the issue of whether her condition had worsened was moot.
Therefore, we affirm the decision.
____________________________________ Carolynn N. Fischel Administrative Law Judge
____________________________________ William A. McCarthy Administrative Law Judge
____________________________________ Sara Holmes Wilson Administrative Law Judge
Filed: October 19, 1995