Opinion
BOARD No. 044126-92
Filed: April 9, 1997
REVIEWING BOARD DECISION
(Judges Maze-Rothstein, McCarthy and Smith)
APPEARANCES
Joseph P. Collins, Esq., for the employee
Debora A. Di Bella, Esq., for the self-insurer
Margaret H. Paget, Esq., for the self-insurer on brief
The employee appeals from a decision that awarded him a closed period of weekly total incapacity and medical benefits pursuant to G.L.c. 152, §§ 34 and 30. We affirm the decision.
Victor Acosta Sanchez, the employee, worked as a housekeeping and maintenance man for the Boston City Hospital approximately eight years prior to his 1992 work injury. (Dec. 3.) His duties included mopping, stripping, waxing and buffing floors with a 150 pound machine. (Dec. 3-4.) On July 30, 1992, the employee, then sixty-one years of age, tripped in a doorway, lost his balance and fell backwards striking his lower back against a metal railing. Id. He treated conservatively for this injury. Id.
The self-insurer initially accepted liability for the payment of benefits on the case, but later sought to modify or discontinue them. (Dec. 2.) The matter went to a § 10A conference and an order issued denying the request. Id. The self-insurer then appealed to a hearing de novo. Id.
The employee was examined pursuant to the provisions of § 11A on June 28, 1994 and a report issued on the same date. (Dec. 4.) The parties deposed the doctor. He opined that the employee's lower back had preexisting degenerative disc disease that was temporarily exacerbated by the July 30, 1992 work injury. (Dec. 4; Dr. Anas Rep. 2.) The doctor believed the pain of the initial trauma should have subsided within six months of the event. (Dec. 4, 5; Dr. Anas Rep. 2.) He concluded the employee was at a medical end result and that any current complaints of pain were caused by the degenerative condition without any relationship to the work injury. (Dec. 5; Rep. 2, 3; Dr. Anas Dep. 21, 24-25, 27-28, 34-35, 36, 38.)
Whenever a claim or complaint involves a dispute over medical issues a § 11A medical examination is required. G.L.c. 152, § 11A. But see, 452 Code Mass. Regs. 1.10 (5)(6)(7).
Upon being deposed, the § 11A examiner reaffirmed most of his opinion. (Dep. 21, 39.) But when pressed on how he derived a six month period to resolution following the work injury, the § 11A examiner responded that the basis was essentially epidemiologic and that a cross-section of the normal population would have resolved by then. (Dep. 16.) He did, however, consistently answer that the current cause of the employee's pain was his degenerative process. (Dep. 21, 24-25, 27, 28, 34, 35, 36, 38.)
The judge adopted the opinion of the § 11A examiner except for the six month recovery aspect. (Dec. 5.) The judge terminated benefits on the doctor's August 16, 1994 deposition date. (Dec. 5.) Accordingly, § 34 temporary total weekly incapacity and § 30 medical benefits were awarded from the date of injury to August 16, 1994. (Dec. 6.)
Apparently, employee counsel filed a motion to submit additional medical testimony or in the alternative to strike findings of the § 11A examiner's report. (Tr. 6, dated July 15, 1994. That motion was again renewed at hearing. (Tr. 2, dated October 21, 1994.) The administrative judge ruled the impartial examiner's report and deposition adequate, and denied the employee's motion. (Tr. 15, dated October 21, 1994.)
The employee raises a number of issues on appeal. Among them, he argues the date of the § 11A doctor's deposition is an improper evidentiary date for the discontinuance of benefits. We address this issue and summarily affirm the other issues raised. Specifically, the employee argues that the deposition date was not proper because "there is no evidence in the medical record upon which the judge could support this finding. . . ." (Employee's Brief, 2-4.)
The general proposition advanced by the employee is accurate: "Findings without evidentiary support cannot stand."Palermo v. Worcester State Hosp., 9 Mass. Workers' Comp. Rep. 665, 666 (1995). Moreover, as a general practice, an administrative judge should avoid utilizing a purely procedural date not grounded in the evidence as the date to terminate benefits. See, e.g., Sullivan v. Commercial Trailer Repair, 7 Mass. Workers' Comp. Rep. 8 (1993) (utilization of the decision filing date to terminate benefits was improper); Rossi v. Mass. Water Resources Authy., 7 Mass. Workers' Comp. Rep. 101 (1993) (inappropriate to terminate benefits as of the hearing date without subsidiary findings explaining why that date would be proper). The key is that the date utilized by the administrative judge to terminate benefits must contain some evidentiary basis. Our position on this point has not changed.
Here, it was not until the deposition that the rationale for the § 11A examiner's duration of medical disability opinion was revealed, to the judge's dissatisfaction. And though an earlier termination date, if believed, could have found support in the evidence, the insurer has not filed an appeal. As such, we limit our inquiry to only those arguments advanced by the employee. See (Dep. 16.) In the light most favorable to him, on the evidence before the judge there certainly was no more advantageous date upon which to conclude benefits.
The judge questioned and seemingly rejected this six month opinion. (Dec. 5.)
Accordingly, we affirm the decision of the administrative judge.
So ordered.
_________________________________ Susan Maze Rothstein Administrative Law Judge
_________________________________ William A. McCarthy Administrative Law Judge
The employee has appealed, raising the sole issue that the date chosen by the judge to terminate his benefits was arbitrary and capricious. I agree that "The general proposition advanced by the employee is accurate: `Findings without evidentiary supportcannot stand' (emphasis supplied)." The employee is entitled as a matter of law to the relief he requests because the termination was arbitrary and capricious.
The date on which benefits are modified or discontinued must correlate to a change in the employee's medical or vocational status. D'Angeli v. McDonald's Restaurant, 1 Mass. Workers' Comp. Rep. 193, 195 (1987); Laroche v. Revere Housing Authority, 10 Mass. Workers' Comp. Rep. (issued October 25, 1996). A deposition date has no more significance than a hearing date or decision filing date, which the board has ruled arbitrary. See decisions cited by the majority, slip op. at 3-4. The termination date which the judge chose merely reflects the day on which two busy attorneys and one busy doctor were able to find some mutually agreeable time to meet. The medical and/or vocational status of the employee was completely dissociated from it. Therefore the termination decision was arbitrary and capricious.
Section 11C requires its reversal of an arbitrary and capricious decision. Burrill v. Litton Industries, 11 Mass. Workers' Comp. Rep. ___, slip op. at 8 (January 30, 1997). This record does not compel the outcome of an earlier termination date; therefore recommittal is appropriate. Compare Medeiros v. San Toro Mfg. 7 San Toro Mfg. 7 Mass. Workers' Comp. Rep. 66, 68 (1993) (reversal rather than remand required where record could support only one result).
See fn. 3 supra.
I would reverse the termination and recommit the case for a new decision on causal connection, and nature and extent of the employee's incapacity from the date of this discontinuance proceeding's conference order. I would permit the employee to renew his motion for additional medical evidence. See O'Brien v. Blue Cross/Blue Shield, 424 Mass. 16, 23-24 (1996). As has been our tradition, I would leave the scope of recommittal proceedings to the judge's discretion — giving instructions to take additional evidence if justice so requires. See Wheaton v. New England Pump, 11 Mass. Workers' Comp. Rep. ___, slip op. at 7 (January, 1997).
_________________________________ Suzanne E.K. Smith Administrative Law Judge