Opinion
BOARD No. 03983192
Filed: October 10, 1996
REVIEWING BOARD DECISION (Judges Fischel, Wilson and Kirby)
APPEARANCES
James N. Ellis, Jr., Esq., for the employee on appeal. Robert Marquis, Esq., for the employee at hearing. James J. Brennan, Esq., for the insurer.
The employee appeals from a decision in which the administrative judge terminated his weekly incapacity benefits. The employee argues that he should have been allowed to present evidence regarding his medical status at the time of his failed attempt to return to work, subsequent to the § 11A examination. The employee also argues that the judge's determination that he was capable of returning to work was arbitrary and capricious. While we agree that the judge should have allowed additional medical evidence on the issue of the employee's medical status at the time of his failed return to work, we affirm the decision because that error was harmless in light of the judge's consideration of the case as a whole.
The employee sustained an industrial injury to his back when he fell off a ladder on August 7, 1992. The insurer paid temporary total incapacity benefits from the date of injury until June 15, 1993, when the parties agreed to an earning capacity of $100.00, and payment of ongoing partial incapacity benefits. The insurer then filed a complaint to discontinue or further decrease the employee's weekly compensation benefits. The judge declined to order any change in the employee's weekly compensation as a result of a February 14, 1995 conference. The insurer appealed to a hearing de novo. (Dec. 1-3.)
The employee underwent an impartial examination under the provisions of G.L.c. 152, § 11A on May 4, 1994. The § 11A examiner diagnosed the employee as having a lumbosacral strain with minimal degenerative joint disease, causally related to the August 7, 1993 industrial accident. The doctor opined that the employee could work, so long as he avoided lifting more than fifty pounds, as well as repeated bending, twisting, stooping or crawling. The doctor further opined that the employee would benefit by increasing his activity level. (Dec. 3.) The judge denied the employee's motion that he find the impartial examiner's report inadequate. Neither party chose to depose the impartial physician. (Dec. 2.) The judge adopted the § 11A physician's opinion that the employee was capable of working within the restrictions outlined in his report. (Dec. 4.)
The judge made the following subsidiary findings of fact, pertinent to the employee's arguments on appeal: The employer offered the employee a full time light duty position designed to conform with the restrictions which the impartial physician had imposed. On July 14, 1994, the employee returned to work at the light duty position offered. On that day the employee met with Judith Riordan, president of the company. She told the employee to notify his supervisor if any task was too demanding, and to come in to see her if there were any problems. (Dec. 3.) The employee was to earn more than his $306.58 average weekly wage at the $10.00 per hour pay rate offered. (Dec. 1, 3.) The employee worked for four and a half days. On his last day, July 15, 1994, the employee went to Ms. Riordan's office. Upon finding that she was not in, he told the secretary that he was not feeling well, and that he was going home. The employee made no further attempts to contact Ms. Riordan, and did not attempt a further return to work. Ms. Riordan testified at the October 26, 1994 hearing that the light duty position was still available. (Dec. 3-4.)
The judge concluded that the employee was no longer disabled from earning his pre-injury wage, based on the impartial physician's opinion, and the good faith offer of light duty employment. The judge determined that the employee gave up on his return to work effort without complying with the MS. Riordan's instructions that he come to her if he had any problems. The judge found that there was sufficient flexibility in the light duty job offer such that the employee's initial problems did not require that he cease to work. (Dec. 4-5.) Thus finding that the offered position was within the employee's capabilities, the judge authorized the insurer to discontinue the payment of weekly benefits. (Dec. 5.)
The employee first argues generally that § 11A's limitation of admissable medical evidence unconstitutionally deprives the employee of due process rights. We have previously been asked to address the issue of whether § 11A may adversely affect the constitutional rights of the parties in proceedings at the department. See Umbrianna v. Wear Guard Work Clothes, 9 Mass. Workers' Comp. Rep. 306, 309 (1995). We note the employee's argument and preserve the issue for the employee pending resolution by the Supreme Judicial Court in the case of O'Brien v. Blue Cross/Blue Shield, 9 Mass. Workers' Comp. Rep. 16 (1995), appeal docketed, No. 07058 (SJC October 30, 1995).
The employee next argues that the judge's denial of the employee's motion to have him find the § 11A report inadequate and hereby to allow additional medical evidence was erroneous, specifically with regard to the effect of that denial given the facts of this case. The employee contends that the May 4, 1994 examination and report could not address the employee's medical condition as of the pertinent date in this case, the employee's return to work on July 11, 1994.
The employee is correct. We think that the fairest application of § 11A would have been to allow additional medical evidence that might have addressed the employee's medical status when he attempted to go back to work. Where an important event-such as an attempt to return to work — occurs months after the impartial examination, the medical evidence derived therefrom is inadequate as a matter of law. Cf. George v. Chelsea Housing Authority, 10 Mass. Workers' Comp. Rep. ___ (January 25, 1996) (where impartial physician's opinion cannot address issues regarding extent of medical disability in gap between industrial accident and examination, judge must allow additional medical evidence). The judge should have allowed additional medical evidence in this case.
However, the error is harmless. The judge based his conclusion that the employee was capable of earning in excess of his average weekly wage as much on lay testimony as on the impartial examiner's opinion. The judge specifically found that the light duty job offered was consistent in its physical requirements with the impartial physician's restrictions. (Dec. 4-5.) Most importantly, the judge concluded that the employee had simply not given the light duty position an honest effort. The judge stated, "I am convinced and find there to have been sufficient flexibility in the light duty job offer such that [the employee's] initial problems did not require his ceasing work." (Dec. 5.) The judge also found probative the employee's failure to adhere to the employer's stated procedures for addressing problems regarding his reentry into the work force. "Whatever problems he may have had with the work . . . [the employee] left the light duty position and gave up on his return to [work] without bringing those issue to Ms. Riordan." (Dec. 4-5.) The judge's termination of weekly compensation benefits was sufficiently grounded in these findings of fact regarding the employee's return to work effort. We think the two month gap in medical evidence is, under these circumstances, of little consequence.
As the decision is not arbitrary, capricious, contrary to law, or beyond the scope of the judge's authority in any other respect, we affirm it.
So ordered. _________________________ Carolynn N. Fischel Administrative Law Judge
_________________________ Sara Holmes Wilson Administrative Law Judge
_________________________ Edward P. Kirby Administrative Law Judge