Opinion
Board No. 70590-91 and others
Filed: April 18, 1995
REVIEWING BOARD:
Judges Maze-Rothstein, Kirby and Smith.
APPEARANCES:
Dale M. Morgan, Esq., for the employee.
Paul Mancini, Esq., for the insurer.
The employee appeals a decision denying his claims for temporary total incapacity and medical benefits under §§ 34, 13 and 30. The employee contends that the administrative judge's failure to make findings on a crucial piece of medical evidence and on the employee's testimony is arbitrary and capricious. We agree. We therefore vacate and remand the decision for a hearing de novo.
We begin with the pertinent findings of the judge. The employee, a twenty-one year old male with a ninth grade education, alleges to have injured his back on November 15, 1991. On that date he had been employed as a receiver and loader for approximately three months. (Dec. 3.) His only prior work experience appears to have been three years as a glass cutter and installer.
On November 15, 1991 as the employee was unloading a large truck, the employee felt a "pop" in his back. The following evening he began to experience severe pain in his back. At 1:00 A.M. the next morning, the morning of the 17th, the employee was admitted to a hospital complaining of lower back pain "from heavy lifting yesterday." The employee was treated and told to rest for 48 hours. (Dec. 3.) The employee did not go to work the following Monday but returned on Tuesday the 19th. The employee worked the rest of the week, but "took it easy" which he alleges to have done on the advice of his manager, Daniel Barboza. (Dec. 3-4.) When the employee's pain did not abate by that week's end, his manager advised him to see his primary care physician. On November 27, 1991, the employee saw Dr. Earl Potts who gave the employee a no work slip "until such time as the employee consults an orthopedist." (Dec. 4.)
On November 27, 1991, the employee sought care with Dr. Barry Lang, an orthopedic surgeon. Diagnostic testing revealed disc herniations at three lumbar spinal levels. Dr. Lang informed the employee his back was seriously damaged and that he could expect lifelong aggravation. (Employee Ex. 2; Dec. 4-5.)
The employee saw a neurosurgeon, Dr. David DiSanto for his continued low back pain which radiated into the buttocks, left leg and calf. Dr. DiSanto was of the opinion that the employee had a partial disability due to disc pathology and should avoid sitting, standing or very heavy lifting greater than 20 pounds. (Employee Ex. 2.)
While it is undisputed that the employee's back ails him, whether the employee injured his back at work was hotly contested. The employee contends that on Tuesday, November 19, 1991, he told his manager, Daniel Barboza, that he had hurt himself at work on Friday, November 15, 1991. (Dec. 4.) However, at the hearing Mr. Barboza had no such recollection. Rather, Mr. Barboza testified the employee told him that he had injured himself over the weekend. Though he and the employee spoke numerous times between November 15, 1991 and January 28, 1992, at no time did the employee mention his alleged need to receive workers' compensation for his back injury. (Dec. 7.) Mr. Barbosa also denied recommending the employee lighten his work activities during the week following the injury. The administrative judge appears to have credited Mr. Barboza's detailed renditions of all the conversations and correspondence between himself and the employee. (Dec. 7.) Similar testimony was given by a second corroborative witness Natalie Roderick, a personnel assistant at Cameo Curtains. (Dec. 7-8.)
Based upon the evidence before him the administrative judge found that the employee suffered a partial incapacitating injury to his back sometime prior to one forty-five in the morning on November 17, 1991. But he did not "find any evidence on the record that casually relates the employee's present condition to his work activities on November 15, 1991." (Dec. 8.)
Here the decision, awash on evidentiary shoals, capsizes and we are constrained to find error. Dr. Lang's report of November 27, 1991, which states that "patient about two weeks ago was doing a lot [ sic] of heavy lifting at work on a Friday afternoon and injured his low back," is clearly record evidence that causally relates the employee's injury to his work activities on November 15, 1991. (Employee Ex. 2.)
The administrative judge may have intended to find that the record contained no credible evidence on causation or, perhaps that he was not persuaded by that evidence. But because the judge failed to make clear his findings, such assumptions would be mere conjecture. Where we can only speculate about the judge's reasoning and basis for his general conclusions, the appellate review to which the claimant is entitled is not possible. Berger v. Intermedia Systems Corp., 7 Mass. Workers' Comp. Rep. 1, 2 (1993), citing Vouniseas's Case, 3 Mass. App. Ct. 133 (1975).
Given the explicit causal opinion of Dr. Barry Lang, the finding that there was no evidence of a causal connection between the employee's injury and his work activities is wholly unsupported. A finding completely without evidentiary moorings is arbitrary and capricious. G.L.c. 152, § 11C. As the error goes to a central issue of the case, the decision cannot stand.
We vacate the decision. Since the hearing judge no longer serves in the department, we remand the case to the senior judge for reassignment to a different administrative judge for 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 extensive evidence admitted by the former judge. See Nartowicz's Case, 334 Mass. 684, 686 (1956).
So ordered.
Judges Kirby and Smith concur.