Opinion
BOARD No. 28411-90
Filed: January 31, 1997
REVIEWING BOARD DECISION
(Judges Fischel, Kirby and Wilson)
APPEARANCES
Edward J. Spence, Esq., for the employee.
Kimberly D. Crear, Esq., for the insurer.
The employee appeals the administrative judge's decision denying her claim for G.L.c. 152, § 34A permanent and total incapacity benefits, contending it was arbitrary, capricious, and contrary to law. We agree that the decision contains internal inconsistencies and misapplies the vocational criteria under Scheffler's Case, 419 Mass. 251, 256 (1994).
The employee, Holly Atherton, sustained an industrial injury on May 23, 1990 by aggravating an underlying condition in her right arm while performing her duties at Steinerfilm (employer). (Dec. 2-3.) She never returned to work. (Dec. 2.) The employee underwent three surgical procedures, despite which the judge found her right major arm to remain "basically useless." (Dec. 2.) He found her to have "constant pain in the forearm, and numbness into the fingers." (Dec. 2.)
The insurer accepted initial liability and began G.L.c. 152, § 34 temporary total incapacity payments. (Dec. 2; Insurer's Brief, 1.) The case came before the administrative judge on the insurer's motion to discontinue, which the judge denied. (Dec. 2.) During the pendency of the insurer's appeal of that order, the employee exhausted her § 34 temporary total benefits and filed for G.L.c. 152, § 34A permanent and total incapacity benefits. That claim was joined at hearing with the insurer's appeal. Id.
A hearing de novo commenced on November 17, 1995. An impartial physician, Dr. White, examined the employee pursuant to G. L. c. 152, § 11A and diagnosed long-standing chronic lateral epicondylitis aggravated by several work related injuries and surgeries. (Dec. 3.) Dr. White attributed her continuing lateral epicondylitis to her May 23, 1990 work injury, which was responsible for her chronic elbow pain. Id.
Adopting the § 11A opinion, the judge concluded that the employee's "work injury of May 23, 1990 continues to be a major factor in her continuing arm problems and restrictions." (Dec. 3.) The judge found that she no longer could perform either the repetitive work performed for this employer or her limited past work that included hands-on food preparation, which is "clearly not within her present capabilities." (Dec. 3.) He found that because of limitations caused by the May 23, 1990 work injury "any sort of re-employment [was] problematic." (Dec. 4.) The judge found that her "physical condition . . . is likely to be permanent." (Dec. 4.)
The employee here would be treated "as is", since "several work related injuries" were sustained prior to the present injury. (Dec. 3.)
The judge concluded that "[a]t this time she appears to be totally disabled from the work force." (Dec. 4.) He further stated in his general findings: "I find that [the employee] remains totally disabled from the open labor market as a result of her work injury of May 23, 199[0]." (Dec. 5.)
The judge found that "[s]ince the date of her injury, Ms. Atherton has completed her G.E.D., and taken a few computer courses. However, due to her inability to use her right hand because of the numbness, computer work is problematic for her." (Dec. 3.) He found that the employee "has actively sought vocational counseling and re-training, but a recommended vocational retraining plan has not been funded by the insurer." Id.
Funding of a vocational retraining program has no relevance in earning capacity analysis. See G.L.c. 152, § 35D(5) (as amended by St. 1991, c. 398, § 65).
Despite his finding that she was totally disabled, the judge denied the employee's claim for § 34A permanent total incapacity benefits and limited her entitlement to § 35 partial incapacity benefits, stating that "[w]hile I find the physical restrictions are likely to remain permanent, I find that vocational factors are not likely to remain so, given that a vocational rehabilitation plan has been created for her, and she is willing to attempt it." (Dec. 5.)
The employee appeals this decision. The employee contends that internal inconsistencies and erroneous application of law render the judge's decision arbitrary, capricious, and contrary to law. We agree. There are clear inconsistencies in the decision: the judge finds the employee has no present earning capacity and that she is totally disabled for work. (Dec. 4, 5.) Despite finding her presently lacking an earning capacity, he assigns incapacity benefits based upon an earning capacity. (Dec. 4.)
In his decision, the judge reasoned that "what does not seem to be permanent in terms of employment for this employee is the vocational outlook . . . ." and therefore "[a]ssuming [vocational retraining] is undertaken, then permanent disability from the open market cannot be assumed, and an award of total and permanent disability benefits under Section 34A is premature." (Dec. 4.) The judge assumes that the employee's present incapacity determination should be based not only on her present physical restrictions and present vocational factors but should also include the chance that she could undergo vocational rehabilitation that could create earning capacity. In the absence of further findings, this appears speculative.
The goal of disability adjudication is to make a realistic appraisal of the medical effect of physical injury in view of an employee's particular vocational situation. See Scheffler's Case, supra, at 256; Frennier's Case, 318 Mass. 635, 639 (1945); Lally v. K.L.H. Research Development, 9 Mass. Workers' Comp. Rep. 427, 429 (1995). Thus, in realistically determining the current incapacity of Holly Atherton for work, the judge must look at her existing vocational attributes, and those that are within reason in a fairly definite time. See Yoffa v. Metropolitan Life Ins. Co., 304 Mass. 110, 111 (1939). But the judge is not at liberty to speculate on possible future changes based on retraining that has not occurred.
The possibility that the employee's future vocational capacity could improve does not bar a finding of permanent and total incapacity. See Lauble's Case, 341 Mass. 520, 523 (1960) ("It is no bar to finding of the fact [of entitlement to §§ 34, 34A, 35 or § 36 benefits] in such cases that there is possibility that the claimant's condition will improve [citations omitted] or that a risky operation may improve it."). Thus, the mere fact that "a vocational rehabilitation plan has been created for [the employee], and she is willing to attempt it" (Dec. 5.) would not ordinarily render her ineligible for permanent total incapacity benefits and serves no basis for decreasing her entitlement to benefits. See Khachadoorian's Case, 329 Mass. 625, 630-631 (1953). The decision was thus error.
As to the employee's burden of proving each element of her permanent total incapacity claim, "[c]omplete physical or mental incapacity of the employee is not essential to proof of total and permanent disability . . . . It is sufficient if the evidence shows that the employee's disability is such that it prevents him from performing remunerative work of a substantial and not merely trifling character . . . ." Frennier's Case, 318 Mass. 635, 639 (1945). Here the judge did find her "physical condition . . . is likely to be permanent." (Dec. 4.) In Yoffa v. Metropolitan Life Ins. Co., supra, the court defined the word `permanent' in an action for disability benefits under a policy of life insurance:
The word `permanent' is the opposite of temporary or transient. It is not a synonym for eternal, endless or life long. For example, a contract for permanent employment gives no right to employment for life. See the cases collected in Weiner v. Pictorial Paper Package Corp., 303 Mass. 123, 133, 134. Under an insurance policy, a disability is permanent if it will continue for an indefinite period which is likely never to end, even though recovery at some remote or unknown time is possible. But if recovery is reasonably certain after a fairly definite time, the disability cannot be classed as permanent.
Id. at 111. This definition of "permanent" applies when an employee seeks permanent and total incapacity benefits under 34A. Himmelman v. A.R. Green Sons, 9 Mass. Workers' Comp. Rep. 99, 101 (1995); DiMaggio v. Miles-Chrysler-Plymouth, 2 Mass. Workers' Comp. Rep. 299, 301 (1988); Burrill v. Litton Industries, 10 Mass. Workers' Comp. Rep. ___ (January 31, 1997). A finding of permanent and total incapacity does not forever bar inquiry into the extent of incapacity. Id. at 301. In the event that an employee's actual medical or vocational circumstances change, further proceedings can be pursued.
We recommit this matter to the administrative judge for further findings consistent with this opinion. So ordered.
______________________________ Carolynn N. Fischel Administrative Law Judge
______________________________ Edward P. Kirby Administrative Law Judge
______________________________ Sara Holmes Wilson Administrative Law Judge
Filed: January 31, 1997