Opinion
Board No. 04687090
Filed: December 31, 1996
REVIEWING BOARD DECISION
(Judges Fischel, Kirby, and Wilson)
APPEARANCES:
Thomas M. McGee, Esq., for the employee at hearing.
Robert D. Armano, Esq., for the employee on review.
Timothy M. Dunlavey, Esq. and Richard Allen, Esq. for the self-insurer at hearing.
Diane J. Bonafede, Esq., for the self-insurer on review.
The employee appeals from the decision of an administrative judge denying and dismissing his claims for compensation because of a lack of initial causation between a July 13, 1990 work injury and any existing medical disability. Because original liability for the back injury was not an issue before the judge, we vacate and remand the case for a hearing de novo.
The self-insurer did not dispute the occurrence of an injury to the employee's back on July 13, 1990. (Dec. 2; Tr. 36-37, 40.) On that date, Mr. Perez, a packer and shipper for Bull-Honeywell Information Systems, Inc., sustained injury while attempting to lift a box filled with heavy computer parts. (Dec. 3.) He sought benefits for incapacity resulting from the lower back injury and from the recurrence of hernia injuries for which he had previously received compensation. (Dec. 4.) The insurer paid G.L.c. 152, § 34 temporary total incapacity compensation without prejudice until August 7, 1990.
The employee then filed claims for benefits pursuant to §§ 30, 13A, 34 and 36. The judge denied the claim, and the employee appealed to a hearing de novo. In connection with that hearing, Dr. Glazer examined the employee pursuant to G.L.c. 152, § 11A, on April 14, 1993. Dr. Glazer opined that the lifting incident at work was the cause of the employee's back problem, and that physically he could do a sedentary job involving no heavy lifting, but was prevented from returning to work because he was very depressed. (Dec. 5-6.) Dr. Glazer did not offer an opinion as to the hernia condition. The judge found Dr. Glazer's report to be inadequate with respect to both the back and hernia conditions. (Dec. 11.)
The judge allowed the additional medical evidence of Dr. Walker, the employee's treating physician, who was deposed on January 6, 1994. The judge recited the testimony of Dr. Walker. (Dec. 7-8.) Dr. Walker performed left side hernia surgery on the employee in December 1986. (Dec. 7.) Dr. Walker then saw the employee on November 6, 1990, when he related a history of recurrent right sided hernia problems while lifting a heavy box of computer parts at work. (Dec. 7.) Dr. Walker performed surgery for the right sided hernia on March 5, 1991. (Dec. 7-8.) Dr. Walker found a recurrent right sided hernia when he re-examined the employee in July, 1992. (Dec. 8.) Doctor Walker repaired the employee's right inguinal hernia recurrence again on July 17, 1992. (Dec. 8.) Dr. Walker said that after a period of recovery, the employee would have a capacity for some work. (Dec. 8.) Doctor Walker stated that a history of lifting heavy computer parts at work would be consistent with the type of incident causing a recurrence of a hernia. (Dep. 15.)
The judge's decision, consisting of recitations of the lay and medical evidence rather than the requisite subsidiary findings, was filed on October 21, 1994. He adopted the parties' stipulation that the industrial injury occurred on July 13, 1990. (Dec. 9.) Although the insurer had stipulated to the back injury, and raised no objection to the employee's description of the circumstances of the back injury, the judge found that the employee's testimony was not credible in his description of the industrial accident. (Dec. 10; Tr. 36-37, 40.) It was not open to the judge to find the work injury caused no back injury, because initial liability for the back was not in issue. (Insurer's Ex. No. 1; Dec. 7; seeMiller v. Massachusetts Turnpike Authy., 10 Mass. Workers' Comp. Rep. ___ (August 26, 1996).
Although no medical opinion supported his finding, the judge found the insurer not liable for the employee's back complaints. (Dec. 10.) He rejected the opinion of Dr. Glazer, the § 11A examiner, that a lifting episode at work caused the employee's back problems and concluded that neither the back nor inguinal hernia problems were caused at work. Id. He adopted the opinions of both Dr. Glazer and Dr. Walker and construed them to mean the employee could perform a light duty job. (Dec. 11.) The Judge found that the employee would be able to earn approximately his average weekly wage while at Honeywell-Bull and denied and dismissed the claim. (Dec. 11.)
The employee's appeal from this decision is before us. Because the judge misperceived the issues before him, and recited testimony without making adequate findings of fact, we vacate and remand for a decision de novo consistent with this opinion.
Section 11B requires the judge to set forth the issues in controversy, a decision on each, and a brief statement of the grounds for each such decision. G.L.c. 152, § 11B. Recitations of testimony are not adequate findings of fact.Messersmith's Case, 340 Mass. 117, 118 (1959). Without findings on all issues raised by the parties, the reviewing board cannot perform its proper appellate function.Crawford's Case, 340 Mass. 719, 721 (1960).
On remand, the judge must address, with clear and specific findings of fact: 1) whether the employee's residual back condition continues to bear a causal relationship to the stipulated back injury; 2) whether the employee's recurring hernias bear a causal relationship to the July 13, 1990 accepted industrial injury, 3) whether the employee has any continuing incapacity as a result of such injuries, and 4). the extent of any such incapacity.
In matters beyond the realm of common knowledge, any decision on the extent of incapacity or on continuing causation requires support from expert medical testimony. Costa v. AT T Technologies, 8 Mass. Workers' Comp. Rep. 298, 300 (1994). A judge may disregard all, none, or some of the medical evidence, but where the judge rejected uncontradicted medical opinion linking the employee's back problem to the July 13, 1990 incident, and rejected uncontroverted medical opinion linking the hernias to the same work injury, he must state his reasons. Galloway's Case, 354 Mass. 427 (1968);Silveira v. Bull Information System, 8 Mass. Workers' Comp. Rep. 136, 137 (1994). While disbelief of the employee's testimony regarding the history on which the experts relied would be a basis for such a determination, that would not apply to the back injury here, where original liability was not disputed. See Whitaker's Case, 354 Mass. 4, 5 (1968).
Finally, we note the judge's finding that the employee could return to work and earn approximately his pre-injury wage appears to be based only on his adoption of the doctor's opinion that the employee could after recovery from surgery perform a light duty job. (Dec. 11.) This opinion will not support a failure to award compensation for any time period when the employee is still recovering from surgery.
In determining the extent of any earning capacity, a judge may use his own judgment, and in addition to considering physical or medical disability, must give a reasoned analysis of the effects of the medical sequelae combined with the factors of age, education, training, work experience, mental capacity and any other consideration relative to an ability to perform remunerative work that is not trifling in nature. Scheffler's Case, 419 Mass. 251, 256 (1994);Frennier's Case, 318 Mass. 635, 639 (1945).
Due to the passage of time, in the interests of justice, the judge may adduce whatever further lay and medical evidence as he deems necessary to aid in his determinations.
_________________________ Carolynn N. Fischel Administrative Law Judge
_________________________ Sara Holmes Wilson Administrative Law Judge
_________________________ Edward P. Kirby Administrative Law Judge
Filed: December 31, 1996