Opinion
Board No. 09607185
Filed: February 28, 1995
REVIEWING BOARD:
Judges Wilson, McCarthy, and Fischel.
APPEARANCES:
Richard E. Daly, Esq., for the employee.
Gerald T. MacCurtain, Esq., for the insurer.
The employee had worked for the employer in professional recruiting since 1972 when, on February 2, 1985, she left her position as senior personnel administrator due to stress at work. She was hospitalized for nearly two weeks that February and three weeks in March, and was diagnosed with acute depression (Dec. 4). The employee's subsequent claim for compensation resulted in an award of § 34 weekly benefits for temporary and total incapacity and payment of medical expenses from April 25, 1985 and continuing. When the § 34 statutory maximum was reached, the employee sought weekly benefits for permanent and total incapacity under § 34A and was awarded such benefits by conference order for the closed period from March 22, 1991 to June 1, 1992. After the parties' cross-appeals and de novo hearing, the administrative judge denied and dismissed the claim for § 34A benefits from February 14, 1990 and continuing, finding the employee no longer totally incapacitated and therefore ineligible for such benefits.
The employee testified that, among other things, she was bypassed for a promotion (Dec. 4)
The employee now appeals from the decision, arguing that she met her burden of proving continuing total and permanent incapacity and that the lay and medical evidence supports such a finding.
Upon examining the decision and the record, we cannot say that there is insufficient evidence to support the administrative judge's ultimate conclusion of nonentitlement to § 34A benefits. Nonetheless, the judge erred in finding that Dr. Zargaj, whose opinion the judge adopted along with that of Dr. Weiner, opined that "the employee is able to work on a part-time basis" (Dec. 8). Only Dr. Weiner so testified as to the employee's work capacity; Dr. Zargaj did not think she was employable. In a December 12, 1990 medical report, Dr. Zargaj stated that the employee's condition had worsened since previous psychiatric evaluations in March 1988 and August 1989. As of December 1990, Dr. Zargaj opined that the employee's "degree of distress is such that I do not consider her as employable" (Zargaj Dep., Exhibit 4). At a deposition held on June 30, 1992, Dr. Zargaj reiterated his December 1990 opinion that the employee could not work (Zargaj Dep. 16-17, 21).
Notwithstanding the error as to Dr. Zargaj's opinion, Dr. Weiner's medical opinion that the employee is not mentally disabled from all forms of employment, considered together with the administrative judge's thorough findings on the employee's emotional condition, age, education and experience, is sufficient to support the judge's ultimate conclusion. Nevertheless, we are unsure how much the judge's erroneous characterization of Dr. Zargaj's opinion may have affected her reasoning and conclusion.
Accordingly, we recommit the case for clarification of the findings with respect to the conflicting expert medical opinions regarding the extent of medical disability. Those findings made, the judge should review her findings on the extent of incapacity, consistent with the principles set out in Scheffler's Case, 419 Mass. 251, 256 (1994).
So ordered.
Judges McCarthy and Fischel concur.