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Deluca v. Bingay Son Corp., No

Commonwealth of Massachusetts Department of Industrial Accidents
Feb 21, 1995
Board No. 100386-85 (Mass. DIA Feb. 21, 1995)

Opinion

Board No. 100386-85

Filed: February 21, 1995

REVIEWING BOARD:

Judges Maze-Rothstein, Kirby, and Smith.

APPEARANCES:

Lynn Coffin Brendemuehl, Esq., for the employee.

David W. Perry, Esq., for the insurer.


By decision the administrative judge granted the employee G.L.c. 152, § 34A benefits. The insurer appeals charging the judge was arbitrary, capricious and acted contrary to law. It avers the judge erred when he issued a decision that awarded § 35 partial incapacity benefits retroactively two years prior to the filing date (hereinafter, "the Decision") and shortly thereafter, without hearing new evidence, filed a second decision awarding § 34A permanent and total benefits (hereinafter, "the Amended Decision"). The insurer accurately asserts the claims, issues, stipulations, witnesses, exhibits, indeed all of the evidence considered was identical in both versions. The insurer argues the only new information the judge had prior to issuance of the Amended Decision was notice that the employee had exhausted all available benefits under §§ 34 and 35 of the Act. We find on filing the Amended Decision the judge acted both arbitrarily and capriciously. We, therefore, vacate the decision and recommit for a hearing de novo before a different administrative judge.

On August 2, 1985 the employee, a carpenter, fell from scaffolding. He thereby damaged vein structures in his leg, with a resultant pulmonary embolism and multiple episodes of deep vein thrombosis of his right leg. (Amended Decision, at 4). These conditions leave him with chronic thrombophlebitis, chronic swelling and pain in his right calf. Id. Additionally, the employee continues to have recurrent bronchitis, chest pains and headaches. Id. He further suffers from chronic pulmonary disease and decreased lung function. Id. The administrative judge adopted a medical opinion that all of the above conditions resulted from damage to vein structures in the employee's leg or pelvis caused by the injury. ( Id., at 5).

The parties agree that the insurer paid compensation benefits under both §§ 34 and 35 from August 8, 1985 through May 15, 1990 at a weekly rate of $341.06 based on a $779.00 average weekly wage. Nor do they dispute that the employee received the statutory maximum under §§ 34 and 35 for his date of injury during this period.

Section 34A as applicable where a date of injury was on August 2, 1985 provides for weekly compensation following payment of the maximum amount of compensation as provided in §§ 34 and 35. See St. 1976, c. 474, §§ 6, 12 (applicable to injuries after October 1, 1978). Section 34 on the applicable date provides that where an employee had received compensation for the same injury under § 35, the combined amount of compensation under § 34 could not exceed the maximum amount set forth in § 35. See St. 1976, c. 474, §§ 3, 12 and St. 1981, c. 572, §§ 1, 5. Section 35 on the applicable date provides that the total combined amount payable under §§ 34 and 35 could not exceed the average weekly wage at the time of injury multiplied by 250. See St. 1981, c. 572, §§ 2, 5 and St. 1976, c. 474, §§ 8, 12. The insurer states that it paid $85,266.00, the maximum combined amount allowed under the applicable provisions of §§ 34 and 35. (Emphasis added). See (Insurer's Brief, at 4; Insurer's Brief, Exhibit B, at 1).

On January 15, 1990, undoubtedly anticipating exhaustion of his §§ 34 and 35 benefits, the employee filed a claim for § 34A permanent and total incapacity benefits. Following a conference, an administrative judge awarded § 34A benefits from May 15, 1990 to date and continuing. That judge retired before a hearing could be scheduled. The case was then assigned to the subject administrative judge who reaffirmed the prior conference order.

Hearings on the § 34A claim were conducted on September 28, 1992 and December 9, 1992. On April 15, 1994, the administrative judge issued the Decision. He ordered discontinuance of § 34 benefits retroactively to February 5, 1991 and ordered commencement of continuing § 35 benefits from February 6, 1991 at a $341.06 weekly rate based on the above mentioned average weekly wage and a $170.00 assigned earning capacity, together with §§ 13 and 30 medical benefits.

Although the judge ordered discontinuance of § 34 benefits, as noted above, the employee was receiving § 34A benefits pursuant to the conference order and its reaffirmation, from May 15, 1990 and continuing.

In the decision the judge made his findings "considering all the evidence and testimony presented including that of Drs. J. Edward Connors and Christopher Kent Wood, my observation of the employee, his demeanor as a witness and judging his veracity as well as the medical evidence presented." (Emphasis supplied). (Decision I, at 6). The judge also adopted the medical opinions of Drs. Vishniavsky and Basu and weighed the employee's vocational factors of age, education and work experience. Frennier's Case, 318 Mass. 635, 639 (1945). After apparent careful contemplation, the judge decided the employee had a long standing capability to earn income from three years prior to the Decision filing date. (Decision, at 6).

Drs. Connors and Wood are vocational experts.

Standing alone, the Decision appears legally sufficient on its face. However, the employee, injured in 1985, had exhausted both his available §§ 34 and 35 benefits. There was, thus, no statutory authority for a § 35 compensation award. See supra n. 1 (discussing applicable statutory provisions).

Both parties apprised the judge that all entitlement to either § 34 or § 35 compensation had expired. The insurer requested an amended decision arguing that its obligations under §§ 34 and 35 had been met as benefits under these sections were exhausted. The employee filed a Motion for Reconsideration and to Reopen Hearing Record. She argued that § 35 benefits were exhausted and requested permission to submit further medical evidence on the § 34A claim.

Without ruling on either motion and without reopening the record for additional offerings, on May 6, 1994, the administrative judge issued his Amended Decision awarding section ". . . 34A benefits from May 15, 1990 to date and continuing." (Amended Decision, at 9). It is in this overnight change of heart that we find error. Facially, the judge's Amended Decision appears legally sufficient, as did the first, but when analyzed in light of the first decision, it becomes clear that the Amended Decision lacks any logical foundation in the findings. It is, therefore, arbitrary and capricious.

When determining the ultimate outcome in a case, a fact-finder "is permitted to draw such inferences from the evidence and all the circumstances as a reasonable man could draw. . . ." Sanderson's Case, 224 Mass. 558, 561 (1916). And without doubt, evidence may be capable of raising different, but no less rational inferences. See Herbert v. Hicks, 299 Mass. 538, 542 (1938); Woolfall's Case, 13 Mass. App. Ct. 901, 1072 (1982); Swasey's Case, 8 Mass. App. Ct. 489, 496-497 (1979). A judge's discretion permits "reasonable inferences" from facts with evidential support, and where evidence does not compel one conclusion or another, a judge does not abuse his discretion in making a decision based on such reasonable inferences. Judkin's Case, 315 Mass. 226, 230 (1944); see Machado's Case, 356 Mass. 715, 720-721 (1969). Where a judge reconsiders the outcome reached in a case the same principles apply. Nevertheless, that discretion does not extend to arbitrary determination, capricious disposition, or whimsical thinking. Eddins v. F T Corp., 7 Mass. Workers' Comp. Rep. 143, 144 (1993). Any reconsidered case that results in a contrary outcome should reveal reasoning that justifies the contrary result.

Here, we find the administrative judge engaged in mental vagaries in reaching the respective determinations. See Id. It is whimsical for the same judge to re-decide a case and come to different conclusions where identical evidence is considered without more. In the Decision, the employee was found to be partially incapacitated with earning power reaching two years into the past. In the Amended Decision he was found to be permanently and totally incapacitated with no ability to engage in any work of more than a trifling nature. The findings in the two decisions are nearly indistinguishable, save several additional sentences appearing in the Amended Decision which fail to explicate a rationale for the polar contradiction in the conclusions based on the same evidence. The Amended Decision fails to disclose reasoned decision making to justify the contrary results. See Scheffler's Case, 419 Mass. 251, 258 (1995). Issuance of a new decision with orders oppositional to an earlier decision without receipt of additional evidence, argument or even a rational explanation justifying the difference between the two, is clearly arbitrary, capricious and contrary to law within the meaning of § 11C. Finally, the judge's treatment of the case reveals he failed to appreciate the statutory and procedural law he is charged to apply. See, Picard v. Plumb House, 8 Mass. Workers' Comp. Rep. 408 (1994) (where all statutory maximums have been exhausted benefits award erroneous).

The Amended Decision was the same as Decision I with no further findings, but with further recitations of the medical and vocational testimony on pages 5-8 and the changed order on page 9.

Accordingly, we vacate and remand the decision. We forward the case to the senior judge for reassignment to another administrative judge for a hearing de novo inclusive medical and vocational updates given the passage of time.

So ordered.

Judges Kirby and Smith concur.


Summaries of

Deluca v. Bingay Son Corp., No

Commonwealth of Massachusetts Department of Industrial Accidents
Feb 21, 1995
Board No. 100386-85 (Mass. DIA Feb. 21, 1995)
Case details for

Deluca v. Bingay Son Corp., No

Case Details

Full title:ARTURO DELUCA, EMPLOYEE vs. BINGAY SON CORP., EMPLOYER, SENTRY INS. CO.…

Court:Commonwealth of Massachusetts Department of Industrial Accidents

Date published: Feb 21, 1995

Citations

Board No. 100386-85 (Mass. DIA Feb. 21, 1995)

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