Opinion
BOARD No. 01293991
Filed: May 10, 1995
REVIEWING BOARD:
Judges McCarthy, Wilson, and Fischel.
APPEARANCES:
Lori J. Harling, Esq., for the employee.
Michael J. Grace, Esq., for the insurer.
The employee fell down a flight of stairs on March 25, 1991 sustaining trauma to his back, head, neck, and left knee with minor hematomas to his forehead and left knee. The insurer did not accept his claim but paid § 34 benefits without prejudice from March 26, 1991 through May 13, 1991. (Dec. 4) The employee sought further benefits beyond the closed period, and following a conference the insurer was ordered to pay § 34 benefits from March 26, 1991 through January 31, 1992 and § 35 benefits from February 1, 1992 through June 1, 1992. (Dec. 4) Both parties appealed from the order and a hearing de novo was held before another administrative judge. The hearing judge awarded § 34 benefits from January 15, 1992 through September 16, 1992 and § 35 benefits from September 17, 1992 through October 29, 1992. (Dec. 16-17)
The administrative judge at conference no longer served in that capacity on the hearing date.
The employee appeals from the decision on the grounds that the judge's subsidiary findings are erroneous and not supported by the evidence and the general findings are based on incorrect facts and facts not in evidence. We find sufficient evidence in the record to support the administrative judge's ultimate conclusion that the employee suffered an industrial accident on March 25, 1991. (Dec. 15) The conclusion is supported by the testimony of the employee and the witness to the accident, both of whom the judge found credible on this issue. (Dec. 6) Credibility determinations are the sole purview of the administrative judge. Roberts v. R.L.W.C., Inc., 7 Mass. Workers' Comp. Rep. 258 (1993). The review board does not have authority to substitute its judgment. G.L. ch. 152, § 11C.
We do, however, find error in the following subsidiary finding of the judge.
Significantly, the employee attempted to apply for a job in April of 1992 with the successor corporation to his former employer without success. (Dec. 8)
All of the record evidence suggests that Collins applied for the job prior to his March 25, 1991 industrial injury. The employee testified that he knew prior to the injury that his employer was being acquired by another company and that he had applied to work with the new company. He testified further that but for his injury, he would have gone to work for the successor company. A fellow employee also testified that the company takeover happened in April, 1991. Presumably the judge thought it "significant" that Mr. Collins was looking for work in April, 1992 and at the same time claiming chapter 152 benefits as incapacitated. Although the judge ultimately found the employee to be entitled to weekly incapacity benefits until October, 1992 it is impossible to know how deeply the "significant" (but erroneous) fact permeated her calculation of the extent and duration of incapacity.
The employee alleges other factual errors. In particular he points to the findings that physical therapy ended on September 21, 1992 due to inadequate medical coverage, that Dr. McGillicuddy did not treat the employee and that Dr. Salib found the employee's condition resolved. Because of our determination of substantial error in the job application finding we need not address these additional facts.
Since we are unable to determine the effect the erroneous finding had on the judge's general findings and award of benefits we have no choice but to set the decision aside. Accordingly, we affirm that much of the decision which finds that an industrial accident occurred on March 25, 1991 and set aside the remainder. Since the judge who filed this decision no longer serves in the capacity of administrative judge, this matter is referred to the senior judge for reassignment for a hearing de novo and new findings on the medical effects, if any, of the employee's industrial injury and the causal relationship between his accident and any incapacity.
Judges Fischel and Wilson concur.