Opinion
BOARD No. 51010-88
Filed: August 28, 1995
REVIEWING BOARD DECISION
(Judges Smith, Kirby and Maze-Rothstein)
APPEARANCES
Jonathan C. Young, Esq., for the employee.
Norman Beane, Esq., for the insurer.
The employee, a fare collector for the M.B.T.A., appeals from the decision of an administrative judge dismissing her claim for temporary, total incapacity benefits and related medical expenses following a recommittal from the reviewing board for further subsidiary findings. SeeCarney v. M.B.T.A., 5 Mass. Workers' Comp. Rep. 26, 27 (1991) (hereinafter, "Carney I"). Carney contends that she sustained injuries to her lower back on June 19, 1988 when she fell off a metal stool after she observed a mouse in the collection booth where she was working. As a basis for this, her second appeal, the employee argues that the judge's decision that she failed to sustain a disabling injury, issued after recommittal (hereinafter "Carney II"), was arbitrary and capricious. We conclude that Carney II remains inadequate for appellate review and once again, vacate and remand the case for a decision anew.
In Carney I, the reviewing board recommitted this case for clarification and further subsidiary findings because the judge's findings were mixed with recitations of testimony, making it impossible to determine the basis for the ultimate conclusion. Carney I, 5 Mass. Workers' Comp. Rep. at 26-27. We specifically instructed the judge to make credibility findings on whether he believed the employee was at work on June 19, 1988 and suffered an injury as alleged. Id. at 27. This board noted that the express findings, 1) that the testimony of John Donovan, the employee's district manager and a non-witness to the incident, was credible while 2) that of the employee was not, were insufficient to resolve the credibility issue without more particularity where the testimony of each "would not necessarily be in conflict." Id.
Following the reviewing board's remand of Carney I, the judge conducted a hearing on May 2, 1991 and took the testimony of William S. Marsh, an M.B.T.A. supervisor present on the date of injury, who was not called at the previous hearing. Based on consideration of that evidence, as well as reconsidering the existing record, the judge issuedCarney II and once again found that the employee was not a credible witness and had failed to prove a "disabling" injury arising out of and in the course of employment. (Dec. 11, Findings 3 and 4.) The judge recited and adopted "in part" the opinion of Dr. John Davis, the self-insurer's expert, and concluded that Carney was capable of returning to her employment as a collector. (Dec. 11, Finding 5.) The subsidiary findings on the testimony of the supervisors, John Donovan, who previously testified, and William Marsh, consist of recitations. The decision recited that it was based not only on record evidence but undesignated "documentary evidence contained within the Board files." (Dec. 10.)
The parties waived the transcript of Mr. Marsh's testimony on this appeal.
The employee first argues in her appeal that the judge's decision is arbitrary and capricious because the new evidence in the form of testimony by William Marsh verified both the presence of the employee at work on June 19, 1988 and the employee's version of the incident. See Carney I,supra at 5 (judge reciting contrary testimony by Mr. Donovan that the employee called in sick on June 19, 1988, the date of injury). Secondly, she contends that the judge did indeed conclude that she suffered an injury on the date in question, although he did not consider it "disabling". Finally, she avers that the judge's incapacity findings were based on speculative medical testimony, contrary to law. After review, we find that Carney II still fails to adequately resolve the pivotal issues so as to provide a basis for proper appellate review.
Section 11B of G.L.c. 152 sets forth the minimum requirement that the decision of an administrative judge must . . . "set forth the issues in controversy, the decision on each and a brief statement of the grounds for each such decision." Pelletier's Case, 8 Mass. Workers' Comp. Rep. 249 (1994). Where, as here, there are conflicts in the lay and medical evidence, the fact finder is required to choose between the conflicts, and to make clear and specific findings of fact resolving the issues in controversy. Id.; G.L.c. 152, § 11B. Recitations of testimony do not constitute adequate subsidiary findings of fact or satisfy the obligations imposed by § 11B. See Messersmith's Case, 340 Mass. 117, 119 (1959). Furthermore, where the findings adopt "part" of a medical opinion, they must clearly specify what part so that the reviewing board can determine with reasonable certainty whether correct standards of law have been applied to facts that could properly be found. Thomas v. Wayland Millwork Corp, 8 Mass. Workers' Comp. Rep. ___ (March 31, 1994); see Lyons v.M.B.T.A., 9 Mass. Workers' Comp. Rep. ___ (January 31, 1995).
In Carney II, the judge once again recited Mr. Donovan's testimony that the employee called in sick and was not at work on June 19, 1988 and that he had never received or seen an injury report pertaining to an incident on that date. See (Dec. 5-6, Finding No. 4.) This is a mischaracterization of Mr. Donovan's testimony, however. Mr. Donovan testified, albeit grudgingly, that once he learned of the claimant's injury, he investigated and found there had been a first report of injury filed. (Donovan Dep. 22-23; Employee Ex. 4; Insurer Ex. 1.) Moreover, there was other evidence that the employee was at work on that date. (Dec. 9, recitation of Marsh testimony; compare Donovan Dep. Ex. 2.) Subsidiary findings which do not have support in the evidence are arbitrary and capricious. Harris v. Totten Pond Food Serv., 7 Mass. Workers' Comp. Rep. 107, 109 (1993).
In addition, the judge recited without making a finding, that Mr. Donovan testified the employee requested a leave of absence on June 29, 1988 because of problems with her children. (Dec. 6; Dep., at 11.) In his general findings, the administrative judge found that the employee requested a leave from July 1, 1988 to November 1, 1988 due to family problems. (Dec. 10.) This finding does not resolve the issue of whether the employee sustained an industrial injury on June 19, 1988, which is the issue the judge is required to decide and for which he must provide a rationale pursuant to § 11B. Perhaps the judge believed the employee's absence from work was due to family problems rather than from injuries sustained in the alleged fall, but without clear and specific findings on what did or did not occur on June 19, 1988, this finding in its present form cannot be a basis for his ultimate conclusion denying benefits.
In Carney II, the judge recited in his decision that Mr. Marsh testified he saw the claimant on June 19, 1988 after she complained of falling backwards in her chair because she saw a mouse. (Dec. 9.) He further recited March's testimony that he had filled out an incident/accident form and forwarded it to his superiors, and that a year later he filled out a new form and again sent it to his supervisors at their request. (Dec. 9.) The judge should make a factual finding on this critical testimony. See Messersmith's Case, 340 Mass. at 119.
Finally, we note that the judge concluded in the general findings, that "I find that [the] employee has failed to prove that she sustained adisabling injury arising out of and in the course of her employment." (emphasis ours) (Dec. 11, Finding 4.) It is not clear whether the judge is finding that the employee sustained an injury but that it was not disabling or did not cause her absence from work, or whether he is finding that she did not meet her burden of proving that she sustained an injury at all. If the employee sustained an injury at work, she may be entitled to reasonable medical compensation pursuant to G.L.c. 152, §§ 13 and 30 even if she did not become incapacitated. Tigano v. Acme Boot Co., 8 Mass. Workers' Comp. Rep. 116, 119 (1994); Jordan, v. Hilltop Steak House, 6 Mass. Workers' Comp. Rep. 25, 26 (1992).
There is no conflict in the evidence that at some point in time, both supervisors, Mr. Donovan and Mr. Marsh, knew about the employee's claim that she injured herself in a fall. While the judge is free to disbelieve this evidence, as calls on credibility are his exclusive province, on remand he must make the crucial findings necessary to resolve the issue. See Crawford's Case, 340 Mass. 719, 720-721 (1960); McCarthy v. M.B.T.A., 8 Mass. Workers' Comp. Rep. 55, 56 (1994) (where conflicts in evidence, fact finder required to choose between them if credibility findings necessary); Marcom's Case, 3 Mass. Workers' Comp. Rep. 187, 188 (1989) (reviewing board may order remand where discussion recites evidence and makes inadequate subsidiary findings); G.L.c. 152, § 11B (duty under § 11B is to make findings on all issues presented in controversy). Finally, on remand if the judge finds a work-related injury, he must then disclose what medical opinion or what "part" of a medical opinion he relies on in determining the extent of incapacity, if any. Zecco v. K K Industries, 9 Mass. Workers' Comp. Rep. ___ ___ (February 4, 1995).
Accordingly, the decision is vacated and recommitted for a decision anew. On remand, the judge must resolve the conflicts on the following issues: 1) whether an event occurred on June 19, 1988; 2) whether the event caused injury; if so, describe the injury and the diagnosis; 3) whether the diagnosed condition required medical treatment; if so, what, when, where and by whom; 4) whether the medical treatment rendered was reasonable and necessary; 5) whether the injury affected the employee's ability to work; if so, describe the impairments and functional limitations caused by the injury; 6) whether the employee had no capacity to work because of the injury, or if there is a partial incapacity; if there is a partial incapacity found, the judge must perform an analysis of its impact on her earning capacity by considering her age, education, experience and other factors as set forth in Frennier's Case, 635 Mass. 635, 639 (1945) and G.L.c. 152, §§ 35 and 35D. See Scheffler's Case, 419 Mass. 251, 255 (1994). The findings shall be based exclusively on evidence properly offered and admitted. Clifford v. AT T, 8 Mass. Workers' Comp. Rep. ___ (December 29, 1994).
In summary, because we find the decision flawed, we vacate it and remand the case to the administrative judge who rendered the decision for a new decision 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 remand decision.
So ordered.
_________________________ Suzanne E. K. Smith Administrative Law Judge
_________________________ Edward P. Kirby Administrative Law Judge
_________________________ Susan Maze-Rothstein Administrative Law Judge
Filed: August 28, 1995