Opinion
BOARD No. 02484395
Filed: March 30, 1998
REVIEWING BOARD DECISION (Judges Fischel, Levine Wilson).
APPEARANCES
David L. Rubin, Esq., for the employee.
John G. Preston, Esq., for the insurer.
The employee appeals from the decision of an administrative judge establishing liability for his work injury and awarding a closed period of § 34 total temporary incapacity benefits and medical treatment for the closed period only. Because the decision contains errors requiring additional findings, we recommit the case to the administrative judge.
Laurindo Monteiro was thirty-seven years old at the time of hearing. Born and raised in the Cape Verde Islands, he attended two years of college, but did not complete a degree program. (Dec. 4.) He immigrated to the United States in 1989, and worked thereafter as a house painter, general laborer and cleaner. Id. He is not fluent in the English language, and a translator was required at hearing. Id.
In September 1993 he commenced work for this employer as a cleaning supervisor; he both oversaw the work of fifteen people and performed manual labor, including cleaning, waxing, washing and stripping floors and shampooing carpets.
While working on June 7, 1995, the employee suffered an injury when a ladder struck him on the head, knocking him to the floor. (Dec. 5.) He was found lying face down on the floor by Geraldine MacArthur, a store employee. (Dec. 5, 6, 9.) He may have experienced a brief loss of consciousness. (Dec. 5.) The employee was transported by ambulance to a hospital where cervical, chest and rib x-rays were taken and a cervical CT scan of his head was performed. All radiological studies were interpreted as normal and he was given medication for headache and pain. (Dec. 6.)
In the months thereafter he sought treatment for blurred vision, headaches, hearing noises, nose-bleeds, and `a sense of pressure in the top of his head.' Id. He has not worked since June 7, 1995. (Tr. II, 16.)
Testimony was taken on two days, May 22, 1996 and June 4, 1996. Tr. I indicates the May hearing date and Tr. II indicates the June hearing date.
The employee filed a claim for benefits which the insurer denied. Following a § 10A conference denial of his claim, the employee appealed to a hearing de novo. Pursuant to section 11A, the employee was examined by Dr. Daniel Sax on January 26, 1996. Dr. Sax opined that the employee suffered from post concussion syndrome, post-traumatic headaches and cervical strain, which he causally related to the industrial injury. (Statutory Ex. 1.) Dr. Sax further opined that the employee was no longer physically disabled as of the examination date but that psychological factors added to his complaints of pain and prevented him from returning to work. (Dec. 7.) The employee moved to have the report declared inadequate, but the motion was denied. Id. The judge then allowed additional medical evidence due to the complexity of the medical issues, and to address the period of time prior to the § 11A examination. (Dec. 8, 9; Employee's Ex. 3.)
The employee does not argue that the judge failed to evaluate whether the psychological factors bear a causal relationship to the work injury and contribute to present incapacity.
Among the thirty-three additional medical records submitted by the employee was that of Dr. J. Berger of the Massachusetts Eye and Ear Infirmary, who postulated, following his July 3, 1995 neurological examination, that the employee's claimed loss of sight was non-organic. (Employee's Ex. 3[6].) The judge specifically adopted Dr. Berger's opinion. (Dec. 8, 10.)
In his decision, the judge found that the employee had suffered a compensable work injury on June 8, 1995, when he sustained a scalp laceration, post-concussion syndrome and cervical strain, but that he was no longer incapacitated as of July 3, 1995. (Dec. 9-10, 13.) The judge ordered the insurer to pay § 34 benefits from June 8, 1995 to July 3, 1995 based on an average weekly wage of $317.81, as well as reasonable and necessary medical treatment incurred during that closed period.
The employee's appeal asserts three judicial errors. First, the employee argues the judge erroneously based his determination of the employee's average weekly wage on an unauthenticated wage computation schedule. We agree. See Faille v. US Concrete, 11 Mass. Workers' Comp. Rep. 473 (1997). At the hearing the employee presented, without objection, three pay stubs to establish his average weekly wage as $480.66 (Dec. 11; Employee's Ex. 2; Tr. 29.). The insurer offered no counter evidence at hearing. Instead, the insurer sent a letter to the judge on July 1, 1996, requesting permission to submit the employee's average weekly wage computation statement prepared on May 30, 1996. (Dec. 11; Insurer's Ex. 2) The employee objected and a status conference was held after which the judge allowed the form into evidence. (Dec. 11.)
The admissibility of evidence in Department hearings is governed by the rules of evidence applicable to the courts of the Commonwealth. Haley's Case, 356 Mass. 678, 681-682 (1970); 452 Code Mass. Reg. 1.11(5). Unless an exception exists, hearsay evidence is not allowed. Wingate v. Emery Air Freight Corp., 396 Mass. 402, 405-406 (1982). One exception to the hearsay rule is the business records statute, G.L.c. 233, § 78, which allows business records to be admitted into evidence to prove the facts contained therein, provided four prerequisites are met. The record must have been made in good faith, in the regular course of business, before the start of the proceeding, and it must have been in the usual course of business to make the record at the time of such act or within a reasonable time thereafter. DiMarzo v. American Mut. Ins. Co., 389 Mass. 85, 105-106 (1983).
Because such records are routinely made by persons who are responsible for making accurate entries and because those records are relied upon in the course of business, a presumption of reliability ensues. Wingate, supra, at 405-406. The party seeking to enter the records into evidence must show that it was the responsibility of the preparer of the record to make the record, or entry on the record, as a matter of business duty. Id. at 406.
In this case no witness appeared to authenticate the wage statement. The preparer of the wage statement is unknown. Further, the wage statement was created on May 30, 1996, eight days after the hearing began. Having failed the requirements of G.L.c. 233, § 78, the wage statement should not have been admitted and could not have been relied upon as a basis for the judge's average weekly wage finding. We reverse the finding on the issue of average weekly wage, and recommit for further findings based on competent evidence.
Next, the employee alleges that the judge erred in choosing July 3, 1995 as the date to terminate incapacity benefits. We agree. While Dr. Berger, whom the judge adopted, stated the employee's loss of sight was non-organic as of July 3, 1995, loss of sight was not the only complaint resulting from the employee's injury. Indeed, the judge found the employee sustained a compensable injury consisting of a scalp laceration, post-concussion syndrome and cervical strain. (Dec. 13.) The July 3, 1995 medical report does not address any of these injuries, and is silent as to disability.
There is uncontradicted expert evidence of continuing disability, subsequent to July 3, 1995 and prior to the § 11A examination. (Employee's Ex. 3.) One such expert, Dr. Albert A. Ackil, a neurologist, found the employee had persistent symptoms of post traumatic headaches and post concussion syndrome causally related to the work injury when examined on July 11, 1995. (Employee's Ex. 3) A judge must give reasons for disregarding uncontroverted medical opinion.Dineen v. Trial Court of the Commonwealth of Massachusetts, 10 Mass. Workers' Comp. Rep. 833, 836 (1996). He may reject it only if he or she clearly and sufficiently states the reasons for doing so in findings with an adequate base in the record. Galloway's Case, 354 Mass. 427, 431 (1968); Wenetta v.J.C. Penney Catalog Outlet Store, 10 Mass. Workers' Comp. Rep. 403, 406 (1996). On remand, the judge must make findings, grounded in the credible medical evidence, as to when the employee's incapacity ceased, if it did cease, for all the injuries resulting from the employee's industrial accident. Bursaw v. B.P. Oil Co., 8 Mass. Workers' Comp. Rep. 176, 179 (1994).
Finally, the employee argues that the judge erred in restricting the payment of §§ 13 and 30 medical benefits to those incurred on or before July 3, 1995. We agree. G.L.c. 152, § 30 states, in pertinent part, "The insurer shall furnish to an injured employee adequate and reasonable health care services . . ." Nothing in § 30 requires the employee to be incapacitated from work in order to receive benefits for medical services related to the work injury. Even if the employee had been denied all weekly benefits he still would be entitled to on-going medical benefits as long as they are reasonable, necessary and related. Matthews v. The Gillette Co., 11 Mass. Workers' Comp. Rep. 471, 472 (1997). Liability having been established, the medical benefits must remain open.
We reverse the finding on average weekly wage. The decision of the administrative judge is hereby recommitted for additional findings consistent with this decision.
So ordered.
___________________ Carolynn N. Fischel Administrative Law Judge
___________________ Frederick E. Levine Administrative Law Judge
___________________ Sara Holmes Wilson Administrative Law Judge
FILED: March 30, 1998