Opinion
13-P-1900
11-18-2014
DOUGLAS EVANS'S CASE.
NOTICE: Decisions issued by the Appeals Court pursuant to its rule 1:28 are primarily addressed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, rule 1:28 decisions are not circulated to the entire court and, therefore, represent only the views of the panel that decided the case. A summary decision pursuant to rule 1:28, issued after February 25, 2008, may be cited for its persuasive value but, because of the limitations noted above, not as binding precedent.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
The petitioner, Douglas Evans, appeals from an adverse decision by the reviewing board of the Department of Industrial Accidents which summarily affirmed the decision by an administrative judge denying his claim for partial incapacity benefits pursuant to G. L. c. 152, § 35. See G. L. c. 152, § 12(2); G. L. c. 30A, § 14. For the reasons that follow, we vacate the judgment and remand for further proceedings consistent with this memorandum and order.
Background. On October 5, 2000, in the course of his workplace activities for Geneva Construction Company (Geneva Construction), Douglas Evans suffered various injuries, including an injury to his abdomen and to his right eye as the direct result of an explosion which produced shrapnel. Evans made a claim with his insurer, which accepted the claim and paid benefits. The only claim at issue in this case is for the plaintiff's incapacity benefits.
Thereafter, he also filed a claim for scarring and disfigurement which is pending.
An administrative judge made a number of findings related to Evans's job duties at the time of the workplace accident and at his subsequent employment positions. The only firsthand source of evidence as to the employee's job duties was the testimony of Evans. Specifically, the judge found that Evans's work duties while at Geneva Construction from 1985 until he was laid off several years after the injury "were primarily conducted in the office but also in the field at job sites." However, the evidence is to the contrary. For example, when asked whether there was a lot of field work involved when he worked at Geneva Construction, Evans answered, "Yes." He was next asked whether his work was primarily done in the field. His answer was, "Yes, that was my biggest." The plaintiff's vocational expert, Paul Blatchford, also discussed Evans's job responsibilities at Geneva Construction, indicating in his report that "[p]art of [Evans's] job responsibilities included measuring the project, determining them ordering the materials needed and monitoring the flow of materials i.e. cost factors. He would inspect and monitor the progress of the repair or replacement of the water/sewer/utility lines."
He also testified that he did a lot of work around trenches, including "lay[ing] the pipe, [a] couple of times" and using ladders "all the time."
After Geneva Construction, Evans worked for S.B. General Contracting where, as the administrative judge found, Evans "performed duties much the same as those he had been performing [at Geneva Construction]." After S.B. General Contracting, Evans found work with Fed. Corp. General Contractors (Fed. Corp.). Once again, the administrative judge made a finding that Evans performed mostly office work. This finding is contrary to the record evidence, which shows that Evans did field work and office work for Fed. Corp.
Following his employment with Fed. Corp., Evans contacted an old friend who arranged for him to work in the office at P. Gioioso & Sons, Inc. (Gioioso). In this position, Evans clearly performed bid work and other paperwork that did not require him to go into the field. The administrative judge again made a finding that is not supported by the evidence: he found that Evans "perform[ed] duties consistent with those he performed with Geneva Construction postaccident, S.B. General and Fed. Corp. . . . ." Evans kept his office job with Gioioso for less than three months, until he alone was laid off.
We assume that work paying similar wages to what Evans made doing field work and office work is not available given his short tenure in this last job. However, this question remains open on remand.
The plaintiff has not worked in any capacity since 2009. In May, 2011, Evans was evaluated by an impartial medical examiner, Dr. Glen K. Goodman, whose opinion was taken as the sole medical foundation in the administrative judge's decision. The examiner's report recommended that the plaintiff should not be allowed to work in any type of industrial environment that might endanger his left eye or that involved going in and out of manholes or trenches or "using ladders where there is machinery going overhead and around him." At Dr. Goodman's deposition, on recross examination, he was asked whether it was true that Evans "clearly should not go back to the type of work that he was doing at the time when he sustained his industrial injury; correct?" The lawyer clarified this type of work as being "[t]he work in the field that he was doing prior to his injury working with blasting caps, working with ladders, working with trenches or working around trenches and working around machinery?" Dr. Goodman replied, "I would generally answer that, yes, that is my testimony."
Discussion. 1. Standard of review. We review the decision of the administrative judge to determine whether it is "factually warranted and not '[a]rbitrary or capricious,' in the sense of having adequate evidentiary and factual support and disclosing reasoned decision making within the particular requirements governing a workers' compensation dispute." Dalbec's Case, 69 Mass. App. Ct. 306, 312 & n.8 (2007), quoting from Scheffler's Case, 419 Mass. 257, 258 (1994).
2. Earning capacity. The question before the judge was whether, by reason of any disability caused by the workplace explosion, Evans's earning capacity is now diminished. A necessary preliminary question is thus what Evans's job entailed at Geneva Construction and whether he is capable of obtaining and performing work that compensates him at or above his former levels. See Ballard's Case, 13 Mass. App. Ct. 1068, 1069 (1982).
a. Job duties at Geneva Construction. Evans clearly testified that the "biggest" part of his job was working in the field. His vocational expert reiterated that fact. Therefore, the administrative judge's finding that Evans's duties "were primarily conducted in the office but also in the field at job sites" lacks evidential support and constitutes reversible error. See Dalbec's Case, 29 Mass. App. Ct. at 312 & n.8.
b. Reduced earning capacity. Compensation is "awarded not for the injury as such but rather for an impairment of earning capacity caused by the injury." Ziegale's Case, 325 Mass. 128, 129-130 (1949). For an injury to be compensable, it must be one that lessens the employee's ability to work. Ibid. The administrative judge's conclusion that "[t]he historical facts of his employment history effectively defeat his claim" was made in error. See Ballard's Case, supra at 1069. It appears, based on his prior work experience and skills, that Evans is unable to obtain office work that pays him at or above his former pay at Geneva Construction, unless he is willing to perform duties in the field that expose his good eye to an unacceptable risk.
First, the fact that the plaintiff continued to perform his duties at Geneva Construction after the workplace accident is irrelevant to whether he was legally incapacitated from performing that work. Secondly, the administrative judge found that because the plaintiff's job duties in his positions after Geneva Construction "were primarily conducted in the office . . . ," the physical impairment caused by the accident did not cause a loss in earning capacity. That conclusion does not fairly represent his prior responsibilities at Geneva Construction that he could no longer perform at subsequent jobs or the independent physician's recommendation of the scope of work Evans was capable of performing after the accident, as required by law. See Dimitropoulos's Case, 343 Mass. 341, 345 (1961).
The Supreme Judicial Court has articulated that "a finding of partial incapacity is warranted where an employee, under competent medical advice, refrains from engaging in his former work because of the considerable risk of reinjury, and pursues less remunerative work in order to avoid that risk." Dimitropoulos's Case, supra. The plaintiff could not be expected to return to his work without risk of reinjury to his functioning eye, and Dr. Goodman's clearly testified at his deposition that Evans could not return to field work given the condition of his eyesight after the explosion.
Conclusion. The decision made by the administrative judge that the injury to Evans's eye did not result in any loss of earning capacity after November 19, 2009, was arbitrary and capricious within the meaning of G. L. c. 30A, § 14(7)(g), because it was based on subsidiary findings of fact that are not supported by substantial evidence. See Ballard's Case, 13 Mass. App. Ct. at 1069. For these reasons, the judgment is vacated, and the case is remanded to the Department of Industrial Accidents for further proceedings consistent with this memorandum and order.
We are confirmed in our assessment of the evidence in this case by the acknowledgement by counsel for the appellee-insurer at oral argument that Evans's work history prior to 2009 was characterized by both work in the field and work in the office.
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So ordered.
By the Court (Green, Rubin & Agnes, JJ.),
Clerk Entered: November 18, 2014.