Opinion
BOARD No. 01373489
Filed: March 20, 1995
REVIEWING BOARD:
Judges Kirby, Smith, and Maze-Rothstein.
APPEARANCES:
John Gazourian, Esq., for the employee.
Daniel M. Wrenn, Esq., for the insurer.
The employee, Jimmie Beene, an electrician, appeals from a second amended decision of the administrative judge issued as the last in a sequence of three versions in which he made differing findings of average weekly wages, and earning capacity, with differing orders of weekly compensation for partial incapacity under § 35. The record reveals no sign that further evidence was received after the issuance of the first version. We vacate and remand the decision.
After evidence closed on September 10, 1990 the first order, issued in the decision dated October 28, 1991, found the average weekly wage of the employee to be $536.60, and the earning capacity to be $100.00 weekly. The judge ordered § 35 compensation of $291.06 weekly. After this was issued the judge was apparently reminded, in a possibly extrajudicial communication from the parties, that they had at the hearing stipulated the employee's average weekly wage to be $980.00. The judge next, on December 30, 1994, issued an amended decision changing the procedural history to show that his conference order was to compensate the employee under § 35 based on an average wage of $980.00. In what may have been a clerical error the judge in issuing his amended decision made no change in the order or in his subsidiary findings; nor did he mention the stipulation.
While this raises a question of extrajudicial communication, both parties to this appeal affirm this finding in their respective briefs, thus making it unnecessary to deal with the issue of extrajudicial communication.
The determination of wages was also consistent with employee's exhibit 2 admitted at the hearing showing a total of $50,959.77 paid over the relevant 52 weeks.
Any errors in the December 30, 1991 decision were mooted on March 12, 1992 when the judge issued a second amended decision. In this version the significant changes were in the order, which was then set forth as based on average weekly wages of $980.00 and an earning capacity increased to $300.00, and which provided § 35 weekly compensation of $444.20.
No additional subsidiary findings were made in the second amended order nor was any explanation given for the changes in either the employee's average weekly wages, (which was apparently the result of the unannounced stipulation) nor, more to the point, the increase in the employee's earning capacity from $100.00 weekly to $300.00 weekly.
Despite his earnest efforts and despite much to be admired in his overall writings in the case, the judge's efforts to make his order come out right failed.
There being in the record no factual basis for the changes in the final findings and orders as set forth in the second amended decision, that decision is arbitrary and capricious. See Scheffler's Case, 419 Mass. 251, 258 (1994). See also, Kilcullen v. San Vel Concrete, 4 Mass. Workers' Comp. Rep. 182, 184 (1990).
We find further error in the administrative judge's rejection of the opinion of the employee's medical expert, offered to prove that the employee suffered also compensable psychological injury as a result of the industrial accident.
The administrative judge in his "General Findings" dismissed the report with the remark that "(i)t is almost certain that any person just sitting around the house doing nothing after an injury, and constantly reflecting thereupon, may develop psychological problems." This remark, included in "General Findings" tends to support the doctor's opinion rather than the judge's conclusion not to credit that opinion, and is the sole basis for its rejection. Moreover, the insurer offered no medical evidence to rebut the contention of the employee.
If an administrative judge rejects uncontroverted medical testimony, he must state his reason and make sufficient findings of fact, based on evidence, to support his conclusion. Galloway's Case, 354 Mass. 427, 431 (1968). In this case the judge did not do so effectively, since his observation quoted above was an ambiguous statement of a reason to reject the doctor's medical opinion.
It may be well to note here that mental or emotional harm which has been directly caused by a compensable physical injury is compensable. McEwen's Case, 369 Mass. 851, 855 (1976).
For the foregoing reasons we vacate the decision of the administrative judge. Since the hearing judge no longer serves in the department, we remand the case to the senior judge for reassignment to a different administrative judge for hearing de novo. We suggest that in the interest of judicial economy and efficiency the case be decided, insofar as practicable and where there is no issue of witness credibility, on the transcript and extensive evidence admitted by the former judge. See Nartowicz's Case, 334 Mass. 684 (1956).
So ordered.
Judges Smith and Maze-Rothstein concur.