Opinion
BOARD No. 033633-90
Filed: March 13, 1998
REVIEWING BOARD DECISION
(Judges Maze-Rothstein, McCarthy and Smith).
APPEARANCES
Alan S. Pierce, Esq., for the employee
Michael A. Fager, Esq., for the insurer
This is the employee's appeal from a second decision filed after an earlier recommittal from the reviewing board. We conclude that the new decision is arbitrary and capricious, because the earning capacity findings were inadequately supported and because not all of the issues on recommittal were addressed. Thus, it is appropriate that we again recommit this case. See G.L.c. 152, § 11C.
We briefly review the facts more fully set out in our previous decision. Pappalardo v. J A Builders, Inc., 10 Mass. Workers' Comp. Rep. 143 (1996) ("Pappalardo I"). The Italian born employee, emigrated to the United States when he was thirteen years old. His education ended at the eighth grade. By then he was sixteen years old and had repeated various grades three times. For over thirty years since then, with no further education or training, J A Builders was his only employer. His duties included jackhammering, shoveling, picking, operating a backhoe and a lot of heavy lifting. (Dec. 4.) He performed no supervisory or bookkeeping duties. (Dec. 5.)
On June 5, 1990, Pappalardo injured his lower back while working with a pick and shovel to clean the edge of a road prior to re-paving. (Dec. 5.) The insurer accepted liability for the injury, and paid temporary total incapacity benefits. (Dec. 2.) It filed a complaint to discontinue payment of incapacity benefits on January 21, 1992. The judge assigned the insurer's last best offer for an earning capacity after a § 10A conference. (Dec. 2.) Mr. Pappalardo appealed to a de novo hearing, which by decision, resulted in an assignment of the same earning capacity. (Dec. 22.) The employee appealed to the reviewing board.
Parties are required to submit a last best offer at conference pursuant to G.L.c. 152, § 10A(2)(b).
In Pappalardo I, the reviewing board reversed the earning capacity finding because it was inadequately supported. It also determined that the findings on causal relationship were internally inconsistent. Finally, the board determined that a retroactive modification of benefits, effective September 26, 1991, nearly four months before the insurer filed its complaint, was error. See Cubellis v. Mozzarella House, Inc., 9 Mass. Workers' Comp. Rep. 354, 356 (1995). We therefore recommitted the case to the judge.
In the decision on recommittal, the judge considered the opinion of the employee's treating neurologist, who opined that the employee suffered radiating low back pain as the sequelae of a herniated L5-S1 disc. (Dec. 9.) While the doctor reported that the employee could return to light duty work, when deposed he changed his mind and stated that the employee could not perform any gainful employment, due to his persistent symptomatology. (Dec. 10-11.) The judge adopted the doctor's opinion on causation, but rejected his views on the extent of medical disability. (Dec. 13.)
The judge also considered the opinion of the insurer's medical expert who felt that the employee was capable of modified work with restrictions on lifting when first examined on September 26, 1991 and at all times thereafter. (Dec. 14-16.) The judge specifically adopted this opinion on the extent of medical disability.
The judge discredited the employee's testimony on the severity of his pain and his physical limitations. (Dec. 19.) He also rejected the employee's testimony that he was illiterate in English. (Dec. 20.) He reasoned that because the employee had lived in the United States for thirty years, had attended school here, had repeated three years between the third and eighth grades, and had submitted no evidence of any learning disability, that he must have some ability to recognize written words. (Dec. 20.) The judge also rejected the opinion of the employee's vocational expert, that Pappalardo was unemployable. (Dec. 19.)
By way of support of his conclusion that the employee would have learned many transferable skills in his thirty years as a construction laborer, the judge observed that:
[The employee] . . . learned the very important life skill of arising in the morning for thirty years; getting to his job site on time and ready for work; and working for an obviously happy and satisfied employer for thirty years.
. . .
The employee is a middle aged, otherwise healthy, and intelligent man. I find that with a little effort the employee should be able to learn how to complete a job application and attempt to find entry level gainful employment.
(Dec. 19.)
Specifically adopting the medical opinion of the insurer's expert, the judge concluded that the employee was partially incapacitated, and could return to modified work with lifting restrictions. (Dec. 16, 21.) On only this medical evidence, § 35 weekly partial incapacity benefits were awarded. As in his first decision, the identical earning capacity was assigned running from the same pre-complaint date of September 26, 1991. (Dec. 19, 22.) The employee appeals again to the reviewing board.
The employee argues that the findings are inadequate to support the earning capacity assignment. He further contends that the retroactive modification of benefits prior to the date the insurer's complaint was filed was legal error. These arguments have merit.
The determination of the loss of earning capacity involves more than a medical evaluation of the employee's physical impairment. Scheffler's Case, 419 Mass. 251, 256 (1994). It requires an analysis of education, training, experience, age and the ability of an individual employee to cope with the physical effects of injury in obtaining remunerative work of a non-trifling nature in the open labor market. Id.; Frennier's Case, 318 Mass. 635 (1945). The goal is to make a realistic appraisal of the medical effect of a physical injury on the individual claimant and award compensation for the resulting impairment of earning capacity. While the judge is free to assign an earning capacity in the absence of direct testimony on the issue, his decision must demonstrate findings that are "not arbitrary and capricious, in the sense of having adequate evidentiary and factual support and disclosing reasoned decision-making. . . ." Scheffler, supra at 258. Findings in a decision are arbitrary and capricious where they do not have support in the evidence. Lichenstein v. Goodyear Tire and Rubber, 7 Mass. Workers' Comp. Rep. 6, 7 (1993).
The decision before us fails to provide such reasoning. The employee is no longer able to perform construction work. We are at a loss as to what, if any, transferable skills he had learned in his thirty years as a construction laborer that could be put to work in a non construction job suitable to his physical limitations and vocational profile. See Ballard's Case, 13 Mass. App. Ct. 1068, 1069 (1982). The judge found that the employee's "very important life skill of arising in the morning for thirty years; getting to his job site on time and ready for work; and working for an obviously happy and satisfied employer for thirty years." (Dec. 19.) We fail to see what relevance these factors have on the employee's post-injury ability to perform non-trifling work on the open labor market. Further, the conclusion that, with a little effort, this employee "should be able to learn how to complete a job application and attempt to find entry level gainful employment", Id., where he only completed the eighth grade, which he attained after being held back three times speaks volumes about what he can not do presently. (Dec. 17-18.) Where findings are speculative, conclusory and wanting in adequate support in the record, recommittal is required.Lichenstein supra at 7; Roldan v. H W Motor Lines, 8 Mass. Workers' Comp. Rep. 410, 412 (1994).
Therefore, we reverse and recommit this matter for a decision anew on the employee's earning capacity with evidentiary support grounded in the employee's vocational capacities considering his work-related physical limitations. Scheffler, supra at 256.
The employee's second argument is that the judge did not address the retroactive modification of benefits as ordered by the reviewing board in Pappalardo I. It was an error of law to once again order § 35 benefits to begin prior to the date of the filing of the complaint. The reviewing board determined inCubellis v. Mozzarella House Inc., 9 Mass. Workers' Comp. Rep. 354, 356 (1995) that benefits may not be modified or discontinued prior to the date the insurer's compliant was filed. If, on remand, a modification of benefits is determined to be in order, it must not commence prior to January 21, 1992, the filing of the insurer's complaint.
Accordingly, we reverse and recommit this case. Since the administrative judge who heard this case is no longer serving in the department, we forward this case to the senior judge for reassignment to a different judge and for a hearing de novo on the extent of the employee's earning capacity. We affirm the decision as to continuing causal relationship between the industrial injury and the present incapacity.
So ordered. ______________________________ Susan Maze-Rothstein Administrative Law Judge
______________________________ William A. McCarthy Administrative Law Judge
______________________________ Suzanne E.K. Smith Administrative Law Judge
Filed: March 13, 1998