Opinion
BOARD No. 00295993
Filed: December 31, 1997
REVIEWING BOARD DECISION
(Judges Levine, Wilson and Fischel)
APPEARANCES
Gerald McTernan, Esq., for the employee.
Ana Mari de Garavilla, Esq., for the insurer.
The parties cross-appeal from a decision of an administrative judge awarding a closed period of temporary total incapacity benefits followed by ongoing partial incapacity benefits, together with related §§ 13 and 30 medicals. We affirm the judge's finding of liability and remand for further findings consistent with this opinion.
The employee, a maintenance man at New England Insulation Company (employer), sustained an industrial injury on January 12, 1993 when he tripped on a piece of carpet while carrying a 50 pound container full of recycled paper and fell down a stairway. (Dec. 4, 6.) He suffered a fracture of the thoracic spine, a concussion and an aggravation of pre-existing degenerative disease. (Dec. 6.) The insurer did not accept the employee's claim. Following a conference on July 22, 1993, the judge issued an order of payment of § 34 benefits from January 13, 1993 and continuing. The insurer appealed for a hearing de novo, which the judge conducted over two days, December 20, 1993 and May 21, 1996.
A § 11A physician examined the employee on October 27, 1993 and was deposed on January 24, 1994. (Dec. 5.) He opined that the employee sustained a concussion, a compression fracture and multi-level disc bulges of the lumbar spine causally related to the work injury of January 12, 1993. Id. He diagnosed a permanent partial disability of 10% to the lumbar spine and right leg, and recommended avoidance of repetitive bending and stooping or lifting over 20 pounds. Id. The § 11A physician further opined that the employee was capable of performing a light duty job which would accommodate his medical restrictions.Id.
The employer's workers' compensation administrator testified at the December 20, 1993 hearing that the employer was offering light duty work that included courier and mail deliveries as well as light maintenance work. Id. The employee testified that he did not feel capable of performing those duties. Id.
At the May 21, 1996 hearing, the case came on for updated medical and lay testimony. (Tr. 3.) In addition, the employee joined a claim for § 34A permanent and total incapacity compensation and related §§ 13 and 30 medical benefits. Id. The judge admitted in evidence on behalf of the insurer the updated medical report of Dr. Alemian, dated March 5, 1996, and on behalf of the employee the updated medical reports of Dr. Lowney, dated February 28, 1996 and Dr. Ackil, dated March 12, 1996. Id. The judge took further testimony from the employee. The updated medical reports were not listed as exhibits in the judge's decision, nor did he make any findings as to them. The § 11A physician who examined the employee in October, 1993 did not submit an updated report.
Drs. Lowney and Ackil, for the employee, apparently opined that he was permanently and totally disabled. (Tr. 19-20.) Dr. Alemian, for the insurer, apparently found an ongoing partial disability with a fair prognosis and restrictions on bending, pushing, pulling, and lifting over 20 pounds on a regular basis. (Tr. 20, 21.)
On this record, the judge found the employee to be temporarily and totally disabled from January 20, 1993 through February 14, 1994 and partially disabled from February 15, 1994 and continuing. The judge ordered the insurer to pay § 34 benefits from January 20, 1993 through February 14, 1994 and then § 35 benefits in the weekly amount of $164.82 with an assigned earning capacity of $170.00. (Dec. 7.)
The employee argues, in part, that the judge erred in failing to list or consider medical reports introduced as evidence and in relying on a § 11A opinion based on an examination that took place three years prior to the decision. The insurer's contention on appeal is that the judge erred in not discontinuing all benefits on February 15, 1994, the date that § 35 benefits began. The decision is inadequate and must be remanded.
Section 11B of the Act mandates that a decision of an administrative judge "set forth the issues in controversy, the decision on each and a brief statement of the grounds for each such decision." Gorrell v. Town of West Boylston, 8 Mass. Workers' Comp. Rep. 78, 79 (1994). The reviewing board cannot perform its appellate function without findings on all issues raised by the parties. See Crawford's Case, 340 Mass. 719, 721 (1960);Praetz v. Factory Mut. Eng'g Research, 7 Mass. Workers' Comp. Rep. 45, 47 (1993).
The judge erred by failing to list as exhibits and to make findings on the updated medical evidence which was admitted in evidence at the May 21, 1996 hearing. A judge should clearly identify in his decision all documents offered by the parties, marked as exhibits, and considered by him in reaching his conclusions. Rossi v. Massachusetts Water Resources Auth., 7 Mass. Workers' Comp. Rep. 101, 102 (1993). It is fundamental that the judge weigh and consider the evidence he has admitted. In the present case, the judge did not consider the updated medical reports which he had admitted at the hearing. On remand, the judge is to list all exhibits and make adequate subsidiary findings, taking into consideration all the medical evidence. See Praetz, supra at 46-47.
In deciding the issue of incapacity, an employee's medical condition is only one factor to be considered. Scheffler's Case, 419 Mass. 251, 256 (1994); Pappalardo v. J A Builders Inc., 10 Mass. Workers' Comp. Rep. 143, 144-145 (1996). A judge must also consider the employee's age, education, background, training, work experience, mental condition and other relevant factors to determine the vocational capability. Scheffler's Case, supra. In the present case, the judge must also, on remand, make findings as to whether the offered job is available and bona fide, and if it is, whether it is suitable for the employee, including consideration of his work-related medical condition. See G.L.c. 152, § 35D(3) and (5). Walker v. Augat, Inc., 9 Mass. Workers' Comp. Rep. 776, 780 (1995).
Finally, if the judge on remand finds that the employee's incapacity status has changed from total to partial, assignment of a date for such change must be anchored in the evidence. Ortiz v. N.A.A.C.O., 10 Mass. Workers' Comp. Rep. 324, 327 (1996).
Accordingly, we summarily affirm the judge's finding of liability. For the above stated reasons, we also find the decision inadequate and we remand for further findings considering all the evidence and claims. Since the judge who heard and decided this case is no longer with the Department, we forward the matter to the senior judge for reassignment and a hearing de novo. We order that the conference order, effective as of the filing date of this opinion, be reinstated pending the new hearing. The judge who is to hear the case anew should determine whether the § 11A medical opinion is stale and/or inadequate and take whatever medical or other evidence, including the employee's testimony, he deems necessary for his determination.
So ordered.
________________________ Frederick E. Levine Administrative Law Judge
________________________ Sara Holmes Wilson Administrative Law Judge
________________________ Carolynn N. Fischel Administrative Law Judge
Filed: December 31, 1997