Opinion
BOARD No. 07594789
Filed: December 30, 1997
REVIEWING BOARD DECISION
(Judges Maze-Rothstein, McCarthy and Smith)
APPEARANCES
James S. Aven, Esq., for the employee.
Linda Scarano, Esq., for the self-insurer at the hearing.
Paul M. Moretti, Esq., on brief for the self-insurer.
This is the self-insurer's appeal from a decision of an administrative judge following recommittal from the reviewing board. Finding some error both legal and factual, we affirm in part, reverse in part and once again recommit the case for further findings consistent with this decision. See G.L.c. 152, § 11C.
The facts in this accepted case are as they are set out inThompson v. Sturdy Memorial Hospital, 10 Mass. Workers' Comp. Rep. 133 (1996). In his first decision, the administrative judge authorized a December 6, 1993 modification from § 34 weekly temporary total incapacity benefits to § 35 weekly partial incapacity compensation and related medicals without mention of whether the job offered by the employer at hearing, was bona fide or suitable, available and within her capacity to perform. See G.L.c. 152, § 35D;Noel v. Innovative Informations Systems, Inc., 11 Mass. Workers' Comp. Rep. ___ (December 16, 1997).
December 6, 1993 was the date of the deposition of Dr. Gibson, the self-insurer's expert. See Thompson, supra at 134 n. 2.
The self-insurer appealed that first decision raising several issues. The reviewing board found two dispositive and ruled that: 1) there was a permissible allowance of additional medical evidence and that 2) the findings on earning capacity were inadequate for appellate review requiring recommittal for further findings. On recommittal, the judge was instructed to make findings regarding whether the employer's job offer was bona fide within the employee's physical and mental capacity to perform and bore a reasonable relationship to the employee's work experience, education, or training as required by Scheffler's Case, 419 Mass. 251, 256 (1994) and G.L.c. 152, § 35D. Dependent on the outcome of that determination was the question of whether the employee "prevailed" for purposes of an attorney fee under G.L.c. 152, 13A(5).
Having found two issues dispositive, the reviewing board did not reach the issues of: 1) whether the finding of causal relationship of present disability was inconsistent with the § 11A opinion; 2) whether the judge did not adopt an opinion; 3) whether the recoupment rate was consistent with § 11D(3); 4) whether counsel fees were improperly awarded, Thompson, supra at 135 n. 3. Contrary to the judge's understanding, we did not affirm his ruling on these issues. See (Hearing Dec. II, 1)
General Laws c. 152, § 11A gives an impartial medical examiner's report the effect of "prima facie evidence with regard to the medical issues contained therein," and expressly prohibits the introduction of other medical evidence to meet it unless the judge finds the additional medical testimony is required due to the complexity of the medical issues involved or the inadequacy of the report.
Section 5 of G.L.c. 152, § 13A provides in pertinent part:
Whenever an insurer files a complaint or contests a claim for benefits and then either (i) accepts the employee's claim or withdraws its own complaint within five days of the date set for a hearing pursuant to section eleven; or (ii) the employee prevails at such hearing the insurer shall pay a fee to the employee's attorney in an amount equal to three thousand five hundred dollars plus necessary expenses. An administrative judge may increase or decrease such fee based on the complexity of the dispute or the effort expended by the attorney.
Upon receipt of the recommitted case, the judge made further findings on the existing record. (Hearing Dec. II.) Since a written job offer was not introduced into evidence, he focused on the employee's testimony and that of Phyllis Howard, an employment specialist for the employer, Sturdy Memorial Hospital. (Hearing Dec. II, at 1-2.)
The job, at issue, was that of hospital admissions registrar, the position which the employee previously held on the October 27, 1989 night shift when she injured her back. Thompson, supra at 134; (Hearing Dec, II, at 2-3.)
After making pertinent findings on the numerous tasks the admissions registrar job required, the judge further found that the accommodations suggested by the employer, such as educating co-employees to assist her as needed, requiring the employee to seek help to perform her duties, and taking rest as needed were effectively impossible on the 11:00 PM to 7:00 AM night shift, since normally only one admissions registrar worked during that shift. Because of the impracticability of these tasks on the night shift, he concluded that the job offer was not bona fide. (Hearing Dec. II 3.)
The judge found that the admissions registrar job included, but was not limited to, sitting at a computer, entering data into a computer, filling out the appropriate forms for patients entering the emergency room, assisting patients getting into wheel chairs, carrying boxes of computer forms, walking back and forth from the front desk to conference booths with patients, wearing a telephone headset, making telephone calls, greeting patients, and assisting in the preparation of paper work for the oncoming shift. (Hearing Dec. II, at 3.)
The judge further concluded that the employee could not carry out the assigned duties of the job because of her current physical and mental condition and because the combination of pain and the effects of medication rendered her unable to have the concentration required. Id.
Reiterating the adoption of the medical opinions of a physical capacity for some light work and considering the employee's prior work history, the judge concluded that she could only perform part-time employment. (Hearing Dec. II, at 4.) He assigned a $125.00 earning capacity based on 25 hours a week at $5.00 per hour. Id. Thus, the outcome on the weekly benefits determination in Decision II was identical to that of Decision I. (Hearing Dec. II, at 5-6.) Reasoning that weekly benefits were not discontinued on the self-insurer's appeal of the conference order, the judge found the employee had prevailed and awarded attorney's fees. G.L.c. 152, § 13A(5) and 452 Code Mass. Regs. 1.19.
The judge found in Hearing Dec. I that both the self-insurer's expert and the employee's expert opined there was an ongoing partial disability with significant restrictions on lifting with a limit of approximately 10 to 15 pounds and only occasional bending. Both experts thought that the employee could do a job within these restrictions and an opportunity to sit and stand as required in order to avoid the pain engendered by staying in the same position. (Hearing Dec. I, at 9; see (Fathallah Dep. 33-34, 37, 56-57; Gibson Dep. 10-15, 18, 29; Gibson Reports, April 17, 1990, October 9, 1991, July 14, 1992, November 16, 1993.) The judge also noted that the § 11A examiner suggested a lifting restriction of 30 pounds, and opined that the employee had a 10 to 15 percent loss of function in the low back area. (Hearing Dec. I, at 9; see Cares Dep. 51-52, 54-55, 57-58, 64-66, 70.)
The Code of Massachusetts Regulations 1.19(4) provides in pertinent part:
In any proceeding before the Division of Dispute Resolution, the claimant shall be deemed to have prevailed, for the purposes of M.G.L.c. 152, § 13A, when compensation is ordered or is not discontinued at such proceeding, except where the claimant has appealed a conference order for which there is no pending appeal from the insurer and the decision of the administrative judge does not direct a payment of weekly or other compensation benefits exceeding that being paid by the insurer prior to such decision . . . .
The self-insurer once again appeals from the decision. It makes several arguments: 1) that the findings of fact do not support the judge's award of an earning capacity less than the offered job where there was an accommodation for the employee's restrictions; 2) that the award of attorney's fees was error; 3) that the judge failed to specifically adopt any physician on continuing causation and disability and that; 4) the partial incapacity finding was inconsistent with the § 11A opinion.
The self-insurer's first argument has merit. As we stated inThompson, supra at 136, when addressing earning capacity issues, the judge must consider the medical limitations caused by the work injury and then, after considering factors such as age, education, training, work experience and other elements relevant to an ability to earn, make a determination of the amount the employee is capable of earning. Thompson, supra at 136, citing Scheffler's Case, supra at 256; Frennier's Case, 318 Mass. 635, 639 (1945). In addition, the judge should apply § 35D.
Section 35D provides four alternate means of determining an earning capacity and instructs the judge to use the greatest amount of the four: 1) the actual weekly earning; 2) the earnings the employee was capable of earning in the job held at the time of injury, provided the job is made available and is within the employee's capacity to perform; 3) the earnings the employee is capable of earning in a particular suitable job provided it is made available and is within an employee's capacity to perform; or 4) the earnings and employee capable of earning. Thompson, supra at 136, citing Seaman v. A.T. T. Technologies, 8 Mass. Workers' Comp. Rep. 86, 88-89 (1994); Major v. Raytheon Corp., 7 Mass. Workers' Comp. Rep. 90, (1993); see G.L.c. 152, § 35D(5).
The judge did a generally thorough earning capacity analysis when he considered the medical evidence in addition to the employee's age, experience, training and other factors in making his determination. See Scheffler's Case, 419 Mass. 251, 256 (1994);Frenniers' Case, 318 Mass. 635, 639 (1945); Ballard's Case, 13 Mass. App. Ct. 1068, 1069 (1982). However, we agree with the self-insurer that it was error to only address the suitability and accommodations of the 11 PM to 7 AM shift, as that offer was not limited to the night shift.
The testimony of Ms. Howard was that other shifts were available and that the employer would make accommodations for whatever one the employee preferred. (Tr. 56-58, 62.) She also testified that more staff support to aid the employee was available on the day and early evening shifts.
To determine whether an employer's job offer is suitable, a judge must consider whether the employee is physically and mentally capable of the work, considering the injury and whether the job bears a reasonable relation to the employees vocational capabilities. Walker v. Augat, Inc., 9 Mass. Workers' Comp. Rep. 776, 778 (1995); Alexander v. New England Tel., 7 Mass. Workers' Comp. Rep. 209, 211 (1993); G.L.c. 152, § 35D(5); see alsoGreelish v. Boston Park Plaza Hotel, 10 Mass. Workers' Comp. Rep. 465; 467 (1996). If the job is suitable and available, then § 35D(3) requires the use of its earnings in establishing the earning capacity if those wages exceed the wages the employee can earn in the general labor market.
It is not clear whether the finding that the employee could not perform the "assigned duties of the job", because of her current physical and mental condition in combination with her pain and medications, refers only to the 11 PM to 7 AM shift or to all shifts. On recommittal, the judge must clarify this and make findings on whether the job offer on these other shifts are available, suitable and whether the tasks required are within the employee's ability to perform.
In its first argument, the self-insurer also argues error in the judge's finding that G.L.c. 152, § 35D(3) requires that a job offer be accompanied by a written report from the treating physician stating that the employee is capable of doing the job. See (Dec. 3-4.) We agree. There is no such requirement. Section 35D(3) reads in pertinent part:
. . . The employee's receipt of a written report that a specific suitable job is available to him together with a written report from the treating physician that the employee is capable of performing such job shall be prima facie evidence of an earning capability under this clause.
G.L.c. 152, § 35D(3). As is plain in its language, this aspect of § 35D(3) only establishes when and on what conditions, job related evidence is to be treated as prima facie evidence of an earning capacity. Thus, we reverse the errant finding. Since the findings regarding the unsuitability of the night shift are sound, we view this error as harmless as to those findings.
The self-insurer next argues that the award of attorney's fees under G.L.c. 152, § 13A(5) was error. For purposes of § 13A(5), 452 Code Mass. Rep. 1.19(4) provides that "in any proceeding before the division of dispute resolution, the claimant shall be deemed to have prevailed . . . when compensation is ordered or is not discontinued at such proceeding, except where the claimant has appealed a conference order for which there is no pending appeal from the insurer . . . ." See supra note 3. In this case, the self-insurer appealed the conference order and the § 35 benefits were not discontinued. Though on further recommittal the fee award is still contingent on the judge's appraisal of the job offer, the award of counsel fees was properly analyzed.
Finally, the self-insurer argues that the findings were inadequate on causation, medical disability and were inconsistent with the § 11A opinion. Subsidiary findings must be clear and specific enough to enable the reviewing board to determine with reasonable certainty whether correct standards of law have been applied to facts that could be properly found. Praetz v. Factory Mat. Eng'g Research, 7 Mass. Workers' Comp. Rep. 45, 46-47 (1993). While there is evidence in the record to support continuing causation and medical disability, with this recommittal the judge should make more definite his findings in this regard. Compare (Gibson Dep. 12, 18; Hearing Dec. II 3; Tr. 44-45; Fathallah Dep. 63; self-insurer's Brief 19-20.)
We therefore, reverse the finding that the job offer did not meet the requirements of c. 152, § 35D(3). We affirm the finding that the night shift is unsuitable and not within the employee's ability to perform and recommit this case for further findings on the other shifts offered with the appropriate analysis underScheffler, supra and § 35D and on the issue of continuing medical disability and causal relationship. Since even more time has passed since the 1993 formulation of the record relied on for Decision II, in the interest of justice, the parties should be permitted to present evidence updating the employee's medical and vocational condition, if it has changed.
So ordered.
________________________ Susan Maze-Rothstein Administrative Law Judge
________________________ William A. McCarthy Administrative Law Judge
________________________ Suzanne E.K. Smith Administrative Law Judge
Filed: December 30, 1997