Opinion
Board No. 07425388
Filed: September 27, 1995
REVIEWING BOARD:
Judges Wilson, McCarthy, and Fischel.
APPEARANCES:
Kevin J. Gaffney, Esq., for the employee.
John G. Preston, Esq., for the insurer.
The employee was working on June 18, 1984, when he injured his back while lifting a generator onto a truck. He was paid § 34 total temporary benefits until his benefits were exhausted. The employee then filed a claim for permanent and total incapacity benefits under § 34A, which was the subject of a conference on June 13, 1990. As a result of that conference, the employee received benefits under § 34A. The insurer appealed and hearing de novo followed (Dec. 1-2, 11).
In her decision the administrative judge made general findings, based on the testimony of two medical experts, that the employee had at least a light duty earning capacity and therefore was not entitled to permanent and total incapacity benefits. In so finding, however, the judge stated the standard for "permanent and total disability," as "that which prevents the Employee from engaging in any occupation and performing any work for compensation or profit, that is from obtaining and retaining remunerative employment of any kind within his ability to perform." (Dec. 11.) The judge then found, "the employee has failed to prove by a preponderance of the evidence that he has had a worsening of his medical condition related to his industrial injury since June 18, 1984. I therefore conclude that the Employee is not a candidate for permanent and total disability benefits." (Dec. 12.)
Without addressing all the employee's arguments, we vacate the decision because the judge based her order dismissing the employee's claim on a misapprehension of the law. As such, it cannot stand. G.L.c. 152, § 11C.
It is axiomatic that the standard to be applied in claims for permanent and total incapacity benefits under § 34A is that the evidence must "show that the employee's disability is such that it prevents him from performing remunerative work of a substantial and not merely trifling character, and regard must be had to the age, experience, training and capabilities of the employee." Frennier's Case, 318 Mass. 635, 639 (1945); see Gramolini's Case, 328 Mass. 86, 88-89 (1981). As the judge did not apply this standard, we cannot know whether her conclusions are in accordance therewith. Moreover, the judge seems to have understood that this employee, who had collected temporary total incapacity benefits for a number of years, had the burden to prove a "worsening of his medical condition" in order to qualify for § 34A permanent and total benefits. (Dec. 12.) Certainly, the burden of proving every element of his case "remains with the employee when § 34 benefits are exhausted and he must show that he is totally and permanently rather than temporarily totally incapacitated." Cambria v. M.B.T.A., 9 Mass. Workers' Comp. Rep. 277 (1995). As we have stated, the employee must withstand the Frennier test in order to show that he is permanently and totally incapacitated. "Worsening" is not an element of this test where an employee has been temporarily and totally incapacitated until exhaustion of benefits. Compare and contrast Foley's Case, 358 Mass. 230, 232 (1970) (employee who is partially incapacitated must show deterioration of his condition to prove total incapacity).
The decision is vacated, and the case is returned to the senior judge for reassignment to another judge for hearing de novo. We reinstate the conference order of June 13, 1990, as of the date of the filing of this decision.
The judge's order awarding the employee counsel attorney's fees is also erroneous. The employee did not prevail, and therefore no fee is due.
So ordered.
Judges Fischel and McCarthy concur.