Opinion
BOARD No. 2710584
Filed: June 30, 1995
REVIEWING BOARD:
Judges Kirby, Smith, and Maze-Rothstein.
APPEARANCES:
James N. Ellis, Esq., for the employee.
Joseph MacLellan, Esq., for the insurer.
The employee appeals from the decision of an administrative judge awarding him § 34 temporary and total incapacity benefits for two prior closed periods and denying his claim for § 35 partial incapacity benefits from the date of the cessation of the latter closed period and continuing. Because of inconsistencies in the judge's second set of findings made after a prior remand from the reviewing board, we are unable to determine the basis upon which the judge reached his conclusions regarding the employee's extent of incapacity. Our appellate function being hindered, we recommit this case.
The employee, a laborer, originally injured his knee on April 30, 1984 (Dec 1). He "suddenly experienced an onset of pain after he twisted his left knee" (Dec. 4). An arthrogram, performed on May 23, 1984, revealed that the employee had tom the lateral meniscus of his left knee (Dec. 4). The employee was placed on an exercise program and returned to work on June 11, 1984 (Dec. 4). The employee underwent an arthroscopic operative procedure on the same knee on February 15, 1985, and returned to work with a different employer on August 5, 1985 (Dec. 4). According to the employee, his new job as an asbestos removal worker was "easier and lighter than his former job as a warehouse laborer." (Dec. 4). The employee's new position paid him significantly less money than had his prior job.
The parties had stipulated that the employee's average weekly wage with his previous employer, Rand-Whitney Container Corp., had been $348.48. (Dec. 2). The employee's new job as an asbestos removal worker paid him only $225-$250 per week. (Employee's Brief at 4).
By conference order dated October 3, 1985, the insurer was ordered to pay § 34 benefits from February 15, 1985 to April 15, 1985 in addition to the prior accepted claim from May 1, 1984 to June 11, 1984. The employee filed a timely appeal and a hearing was held. The administrative judge found that the employee sustained a workrelated personal injury as a result of the April 30, 1984 accident. He found the employee totally incapacitated from May 1, 1984 until June 11, 1984 and again from February 15, 1985 until April 5, 1985. Both the employee and the insurer appealed from this decision and the case came before the reviewing board on September 27, 1990. The board recommitted the case to the administrative judge, inter alia, for further subsidiary findings regarding the extent of the employee's incapacity. See Joppas v. Rand Whitney Corp., 6 Mass. Workers' Comp. Rep. 73 (1992). The administrative judge's new decision dated May 11, 1992 denied § 35 benefits and the employee appealed for review.
Upon recommittal, the administrative judge declined to open the record. He found, on the basis of the previous testimony, that the employee's assertion as to the comparative physical activities of the former and new jobs was unpersuasive (Dec. 5). Moreover, the judge found that the employee's failure to earn his previous wages was not caused by any medical disability (Dec. 5).
The judge's decision stated that the insurer's medical expert, Doctor Moore, was "of the opinion" that it was unlikely that the trauma of the injury suffered by the employee on April 30, 1984 caused the February 15, 1985 surgical findings of osteocondritis involving the condyle. He made note also that Doctor Moore opined that the severe strain of the left knee from the April 30, 1994 injury would not likely persist to the second period of claimed incapacity beginning on February 15, 1985 (Dec. 5). The judge did not adopt these opinions.
The judge set forth also the opinion of the employee's medical expert, Roland R. Caron, M.D., that the employee's continuing difficulties with his left knee were causally related to the industrial injury of April 30, 1984. Doctor Caron was "of the opinion" that the employee was partially disabled and suffered a 15% loss of function to his left knee (Dec. 5). In his general findings, the judge adopted the opinion of Doctor Caron including that the employee suffered a 15% loss of function to his left knee and that the "[e]mployee's disability is causally related to the industrial injury of April 30, 1984 . . ." (Dec. 6).
Based on these findings, the judge ordered payment of temporary total compensation from May, 1984 to June 11, 1984 and from February 15, 1985 to April 15, 1985, as well as medical benefits and § 36J benefits for the 15% loss of function in his left knee (Dec. 6). The employee appealed this second decision to the reviewing board.
The employee argues on appeal that the decision of the administrative judge, finding that the employee had no partial incapacity that is, loss of some but not all earning power after April 15, 1985, was arbitrary and capricious. We agree. Where evidence of a work restriction or a partial physical disability enters the record, a judge must, before reaching an extent of incapacity determination, analyze vocational factors including age, education, training, work experience and other circumstances which may affect the employee's earning capacity, in his ability to cope with the physical effects of injury, and consequently, to make earnings of a substantial and not trifling nature. Scheffler's Case, 419 Mass. 251, 256 (1994); Frennier's Case, 318 Mass. 635, 639 (1949); Fragale v. MCF Industries, 9 Mass. Workers' Comp. Rep. 168 (1995). G.L.c. 152, § 35D. Here, the judge, despite having found that the employee suffered a 15% loss of function in his left knee, concluded that the employee was nevertheless not partially incapacitated.
The judge would have been justified depending on the outcome of an appropriate analysis, to find that the employee was not incapacitated notwithstanding his work-related medical disability. Medical disability and work incapacity are "distinct concepts married generally through examination of vocational factors." Fragale, id.; Medley v. E.F. Hauserman Co., 7 Mass. Workers' Comp. Rep. 97, 99 (1993). Here the judge acknowledged that the employee suffered from an ongoing physical limitation resulting from the injury when he awarded the employee benefits pursuant to § 36(j). But we cannot determine from the record how the conclusion was reached that the employee did not suffer also from an ongoing partial incapacity. Even if the judge did not believe the employee's testimony about the reason he was working at a lower paying job, he was obliged to do the required vocational analysis. The order stopping the employee's benefits entirely could be justified only when it is based on that appropriate analysis which should be apparent in the record. See Lagasse v. Dennison International, 8 Mass. Workers' Comp. Rep. 246, 247-248 (1994).
We vacate the decision and remand to the same judge for a new decision consistent with this opinion. If either party alleges a change in medical condition, vocational skills or other economic factors since the date the record closed or if the judge finds that justice so requires, additional evidence shall be taken prior to the entry of the remand decision.
So ordered.
Judges Smith and Maze-Rothstein Concur.