Opinion
BOARD No. 013290-89
Filed: March 5, 1997
REVIEWING BOARD DECISION
(Judges Kirby, Fischel and Wilson)
Judge Kirby no longer serves as a member of the reviewing board.
APPEARANCES
Emily J. Novick, Esq., for the employee
Martin T. Sullivan, Esq., for the insurer at hearing
John G. Preston, Esq., for the insurer on brief
The employee appeals from the decision of the administrative judge, who awarded partial incapacity benefits pursuant to G.L.c. 152, § 35, but denied and dismissed her claims pursuant to G.L.c. 152, §§ 34A and 50. After review of the record, we conclude that recommittal and reassignment for hearing de novo are necessary.
Catherine Charles, the employee, was born and educated in Trinidad and emigrated to the United States in 1971. (Dec. 4.) She has a G.E.D. certificate, is trained as a home health care aide and holds a hairdresser's license. Id. This is the extent of her education and prior work history. Mrs. Charles began employment with Boston Family Shelter, Inc. in 1987 as a house manager. Id. Her duties included lifting, cooking, mopping, stocking boxes, and tending to children. Id.
On February 24, 1989, the employee experienced an onset of low back pain while moving a couch in the course of her employment.Id. As a result, the employee underwent a discectomy at L4-5 in 1991 and continued to treat with Dr. Ordia. (Dec. 5.) The insurer initially accepted the case and began paying benefits pursuant to G.L.c. 152, § 34. (Dec. 3.)
In 1992, the insurer filed a request to discontinue payment of weekly incapacity benefits. (Employee Ex. 3.) In the decision disposing of the insurer's complaint, filed February 2, 1994, the judge concluded that the employee continued to be temporarily and totally incapacitated due to her work-related back impairment. Id.
The insurer paid § 34 benefits through February 24, 1994, at which point the benefits were exhausted. (Dec. 3.) The employee's subsequent claim for § 34A benefits was heard at conference on September 13, 1994. Id. After conference, the judge assigned an earning capacity of $80.00 per week and ordered the insurer to pay § 35 benefits. (Dec. 3.) The employee appealed to a hearing de novo. (Dec. 3.)
The § 11A impartial examiner, Dr. John C. Molloy, examined the employee on May 25, 1993 and December 16, 1994. (Impartial Report, Board Ex. 1.) The parties deposed the § 11A examiner and the doctor's medical report and deposition were admitted in evidence. (Dec. 2.) The impartial examiner opined that the employee suffered from a herniated lumbar disc at L4-5 on the left, status postoperative discectomy with residual radicular symptoms, sciatica and loss of bladder control. (Board Ex. 1; Dec. 5.) He further opined that the employee was totally and permanently disabled from any gainful employment. (Board Ex. 1; Dec. 5.)
The judge concluded that the employee sustained an industrial injury to her back on February 24, 1989, and subsequently underwent a discectomy at L4-5 on the left on May 8, 1991. (Dec. 6.) He adopted Dr. Molloy's diagnosis of the employee's medical condition, but rejected the doctor's opinion that the employee was permanently and totally disabled. The judge noted that the employee was able to walk up five flights of stairs to her apartment on a regular basis, (Dec. 6), although not without difficulty. (Dec. 4.) The judge denied the employee's § 34 A claim, assigned an earning capacity of $80.00 per week and ordered that the insurer pay § 35 benefits from February 25, 1994 and continuing at a weekly rate of $135.62. (Dec. 7.) The insurer was ordered to make the appropriate adjustments to the employee's weekly benefits pursuant to the cost of living provisions of § 35F. The employee's claim for § 50 interest on the judge's § 34 award in the prior decision was denied. (Dec. 8.)
The employee maintains on appeal that the judge's decision is arbitrary, capricious and contrary to law because there is no evidence of a change in the employee's medical condition that warrants assignment of an earning capacity. The employee avers that the record facts are the same as those before the judge when the prior decision issued on February 2, 1994, and the result necessarily should be the same. We think that the employee's reliance on DeLuca v. Bingay Son Corp., 9 Mass. Workers' Comp. Rep. 59, 62 (1995) for the proposition that a remand is required when the second of two sequential decisions reaches a different result is misplaced. The pivotal issue in DeLuca was not that the judge issued a second decision with a result different from the first, but that he did so without any additional evidence to supplement the record or to justify another outcome. See DeLuca, id. Here, contrary to the employee's assertion, additional evidence was entered into the record at the second hearing, (Dec. 2, 3), rendering DeLuca inapposite to the case at hand.
The employee correctly asserts that the opinion of the § 11A expert was entitled to prima facie status. G.L.c. 152, § 11A (2); see Corderio v. Quaker Fabrics, 9 Mass. Workers' Comp. Rep. 470 (1995). Moreover, it was the sole medical evidence in the case and was uncontroverted. In his decision, the judge accepted the impartial examiner's opinion in part and rejected it in part. Generally, it is the prerogative of the judge to accept or reject medical opinion. The judge must, however, set forth his reasoning supported by sufficient findings of fact when rejecting an uncontroverted medical opinion. Robinson v. Contributory Retirement Appeal Bd., 20 Mass. App. 634, 639 (1985); Beene v. American Tool Machine, 9 Mass. Workers' Comp. Rep. 92 (1995). The judge did not do so. This case must therefore be recommitted.
As a final matter, the employee asserts that she is entitled to interest pursuant to § 50 for the § 34 compensation awarded to her in the first decision filed by the judge on February 2, 1994. Although § 50 is self-operative, and need not be raised by the employee in order to be awarded, the judge's failure to award it in his 1994 decision should have been pursued by the employee by either a request for an amended order, or an appeal of that decision. Because the employee's attempt to address that error in the present claim for benefits is untimely, the judge correctly denied the employee's claim for interest on the former award.
The employee is entitled as a matter of law, however, to § 50 interest on the § 35F cost of living adjustments (COLA) awarded by the judge in the second decision currently under appeal. Section 50 provides:
Whenever payments of any kind are not made within sixty days of being claimed by an employee, dependent or other party, and an order or decision requires that such payments be made, interest at the rate of ten percent per annum of all sums due from the date of the receipt of the notice of the claim by the department to the date of payment shall be required by such order or decision. Whenever such sums include weekly payments, interest shall be computed on each unpaid weekly payment.
G.L.c. 152, § 50, as amended by St. 1991, c. 398, § 77. There can be little doubt that the § 35F adjustment is a "payment of any kind" within the meaning of § 50. The insurer shall pay § 50 interest on the § 50F COLA award.
Since the judge who heard the case has retired, we transfer it to the senior administrative judge for reassignment to another judge and a 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 evidence admitted by the former judge. SeeNartowicz's Case, 334 Mass. 684, 686 (1956).
So ordered.
____________________________________ Sara Holmes Wilson Administrative Law Judge
____________________________________ Carolynn N. Fischel Administrative Law Judge