Opinion
BOARD No. 01214093
Filed: December 16, 1997
REVIEWING BOARD DECISION (Judges Smith, Maze-Rothstein and McCarthy)
APPEARANCES
Eric P. Finamore, Esq., for the employee.
John B. Schulte, Esq., for the insurer at hearing.
Joseph J. Durant, Esq., for the insurer on brief.
The employee appeals from the decision of an administrative judge which awarded § 35 temporary partial incapacity benefits from the date of receipt of the deposition transcript and continuing. Because the initial twenty one months of the employee's incapacity claim were not addressed, we reverse the limited compensation order and recommit for further findings of fact on the nature and extent of incapacity during the entire claim period.
Wilfredo Montero was fifty-four years old at hearing. A native of Cuba, he completed three years of college in that country before emigrating to the United States in 1963. He began his employment with Raytheon Corp. in 1983 as a Missile Systems Division supervisor, a job he held until August 10, 1994 when he was laid off as part of a general downsizing. (Dec. 3-4, 9.)
Montero injured his left wrist at work on September 19, 1986. Since that time he has undergone nine surgical procedures and further surgical intervention is anticipated. (Dec. 5, 7.) Montero initially filed a claim only for §§ 13 and 30 benefits. The insurer denied the claim and a § 10A conference was held. The judge issued a conference order denying the medical claim and Montero filed a timely appeal. Thereafter, Montero filed a motion to join a claim for § 34 temporary total weekly incapacity benefits from August 11, 1994 to date and continuing. The motion was allowed and a hearing de novo was held to address all issues. Montero provided the only lay testimony. The medical evidence was limited to the § 11A impartial medical examiner's report and deposition. (Dec. 1, 3.)
In his decision, the judge adopted the impartial medical opinion of Dr. Ertel and found that Montero was able to work with limitations. He determined that Montero was able to earn $400.00 per week. (Dec. 9.) The judge ordered the insurer to pay § 35 partial weekly incapacity benefits from May 7, 1996 to date and continuing. He also awarded reasonable and related medical expenses. (Dec. 10.) On appeal, Montero attacks the choice of May 7, 1996 to commence weekly incapacity benefits. We agree that the date is arbitrary and capricious, and contrary to law.
Factual findings as to when incapacity, be it total or partial, begins or ends must be grounded in the evidence found credible by the judge. Ortiz v. N.A.A.C.O., 10 Mass. Workers' Comp. Rep. 324, 327 (1996). As we have stated repeatedly, a purely procedural date does not satisfy this requirement. See, e.g., Sullivan v. Commercial Trailer Repair, 7 Mass. Workers' Comp. Rep. 8 (1993) (utilization of a decision filing date to terminate benefits was improper); Rossi v. Mass. Water Resources Authy., 7 Mass. Workers' Comp. Rep 101 (1993) (utilization of hearing date, absent explanatory subsidiary findings, to change benefits was improper). Our position on this issue remains unchanged.
Sanchez v. City of Boston, 11 Mass. Workers' Comp. Rep. 235 (1997) does not require a contrary stance because, in the majority's view of that case, the appealing party could gain no more favorable relief than the judge had awarded. Such is not necessarily the situation here.
The decision fails to explain the choice of the date the judge ordered benefits to commence, May 7, 1996. The only apparent significance to the date is that it is when the administrative judge received the deposition transcript. (Dec. 2.) As such, it bears no relationship to any medical or vocational factor relevant to a determination of weekly incapacity benefit entitlement. SeeScheffler's Case, 419 Mass. 251, 255-256 (1994) (discussing the incapacity analysis). The commencement of benefits on such a date is arbitrary and capricious, and contrary to law.
We therefore reverse the order commencing benefits as of May 7, 1996. We return the case to the judge to make further findings on the nature and extent of the employee's incapacity from August 11, 1994, the commencement of period of his claim. Due to the passage of time, the judge may take such additional evidence as he deems necessary to do justice.
So ordered.
________________________ Suzanne E.K. Smith Administrative Law Judge
________________________ Susan Maze-Rothstein Administrative Law Judge
________________________ William A. McCarthy Administrative Law Judge
Filed: December 16, 1997