Opinion
Board No. 03363390
Filed: February 26, 1996
REVIEWING BOARD DECISION
(Judges Kirby, Smith and Maze-Rothstein)
APPEARANCES:
Alan S. Pierce, Esquire, for the employee
Michael A. Fager, Esquire, for the insurer
The employee appeals from a decision in which the administrative judge granted the insurer's request for a reduction in benefits. The employee argues that the decision is arbitrary and capricious because the judge failed to support his conclusions with adequate subsidiary findings, and did not award an attorney's fee for the hearing. Finding error, we vacate the decision in part, reverse it in part, and recommit the case to the administrative judge.
The employee, a graduate of eighth grade, had worked in heavy construction for thirty years when, on June 15, 1990, he suffered an injury to his lower back while clearing the edge of a road with a pick and shovel in preparation for repaving. (Dec. 6.) The insurer accepted liability and paid temporary total incapacity benefits. The insurer then filed a request for discontinuance or reduction of benefits on January 21, 1992, which was the subject of a conference on March 20, 1992. An order issued on March 23, 1992 adopting the insurer's last best offer. The judge assigned the employee an earning capacity of $156.67, and awarded ongoing partial incapacity benefits of $200.00 per week, based on the stipulated average weekly wage of $456.67. (Dec. 3.) The employee appealed to a hearing de novo, claiming that he was entitled to ongoing temporary total incapacity benefits. (Dec. 2.)
At hearing the employee presented expert medical testimony of his treating physician, Dr. Carandang, by way of reports and deposition. (Dec. 14-20.) The judge rejected Dr. Carandang's opinion that the employee was incapable of any employment, and that his present medical disability was causally related to the 1990 industrial injury. (Dec. 28.) The insurer's medical expert, Dr. Levine, testified at deposition that the employee was capable of returning to modified work with restrictions on lifting. (Dec. 20-24.) The judge adopted the opinion of Dr. Levine (Dec. 28) and awarded continuing partial benefits at the same rate of $200.00 per week he ordered in his March 23, 1992 conference order, but related that reduction in benefits back to the date of Dr. Levine's first examination of the employee, September 26, 1991. The judge also found that the employee's medical treatment was reasonable and necessary, and ordered the insurer to pay §§ 13 and 30 benefits for that treatment. The judge denied the request for counsel fees. (Dec. 28-29.)
The judge's decision comprises lengthy recitation of testimony. There are no subsidiary findings of fact. We cannot determine how the judge arrived at his general findings, and thus we vacate his finding of an earning capacity and recommit the case.
The principles by which we must determine whether a hearing decision as written satisfies the need for findings of fact is well settled. ". . . [I]t is the duty of the [administrative judge]. . .to make such specific and definite findings upon the evidence reported as will enable this court to determine with reasonable certainty whether correct rules of law have been applied. See Judkins's Case, 315 Mass. 226, 227 (1943), citingZucchi's Case, 310 Mass. 130, 133 (1941). The court added, ". . . mere general conclusions unaccompanied by findings of fact 'as a basis to support them do not comply with the intention of the Legislature as expressed in the workmen's compensation act,'" Id., citing Craddock's Case, 310 Mass. 116, 125 (1943). In Craddock, the court stated a narrow exception, citing Rozek's Case, 294 Mass. 205, 207 (1936): general conclusions may satisfy the statutory requirement of findings of fact if the evidence reported is of such a character that no reasonable inference to the contrary may be drawn.
We follow the holding of Ballard's Case that ". . . the [judge's] conclusion that the employee is capable of 'light adjusted [modified] work' rests on no adequate subsidiary findings. . ." Ballard's Case, 13 Mass. App. Ct. 1068, 1069 (1982). An award of § 35 benefits must be based upon evidence of partial incapacity and findings based on that evidence applying the principles in Scheffler's Case, 419 Mass. 251 (1994). See Mulcahey's Case, 26 Mass. App. Ct. 1, 3 (1988); Frennier's Case, 318 Mass. 635 639 (1945).
A worker who has performed nothing but heavy labor for over thirty years of his vocational life, with a limited eighth grade education, may not have transferrable skills. If the judge finds he has such skills, an assignment of earning capacity may be in order, but must be supported by sufficient subsidiary findings to allow this reviewing board to fulfill its appellate function and determine whether such a conclusion has evidentiary support and is untainted by error of law. Such findings were not made in this decision.
Another concern involves the judge's general finding that he did "not adopt the medical opinion of Dr. Carandang when he opined that the when he opined that the employees's present disability was causally related" to the accident of June 15, 1990. (Dec. 28.) The judge concluded nevertheless, that the employee's medical disability was such that he was entitled to ongoing § 35 benefits. Since there was no other evidence before the judge to support a causal relation between the industrial accident and the employee's disability, these two conclusions are inconsistent and must be resolved.
We vacate the judge's finding of an earning capacity and recommit this case for further subsidiary findings in accord with this decision. We further note that the judge's retroactive modification of benefits, effective on September 26, 1991, was error.Cubellis v. Mozzarella House, Inc., 9 Mass. Workers' Comp. Rep. 354, 356 (1995) See Welch v. A.B.F. Systems, 9 Mass. Workers' Comp. Rep. 407 (1955).
We affirm the judge's decision denying the award of attorney's fees to employee counsel. As the employee appealed the conference order there is no statutory basis for such award. G. L. c. 152, § 13A(7).
So ordered.
_________________________ Edward P. Kirby Administrative Law Judge
_________________________ Suzanne E.K. Smith Administrative Law Judge
_________________________ Susan Maze-Rothstein Administrative Law Judge
Filed: February 26, 1996