Opinion
BOARD No. 073315-90
Filed: March 27, 1996
REVIEWING BOARD DECISION
(Judges Maze-Rothstein, Smith and Kirby)
APPEARANCES
Arthur J. Lewis, Jr., Esq., for the employee
Edward F. McGourty, Esq., for the insurer
The employee appeals from a decision authorizing discontinuance of his temporary total compensation benefits. He argues that neither the evidence nor the judge's subsidiary findings support her determination that he was able to earn his pre-injury average weekly wage. Finding that aspects of his argument have merit, we vacate the decision and remand the case for further findings.
On December 31, 1990, the employee injured his left ankle in the course of employment when, while carrying three or four carpets for delivery, he twisted his foot stepping on to a curbstone. The insurer accepted liability and paid temporary total weekly benefits under G.L.c. 152, § 34. Following a § 10A conference on the insurer's complaint for discontinuance or modification, an order was issued on August 18, 1992 terminating the weekly benefits as of that date. The employee appealed. After an evidentiary hearing, the judge affirmed the August 18, 1992 discontinuance, finding the employee capable of earning his pre-injury wage. The parties stipulate that when the employee was injured his weekly earnings averaged $554.28.
The pertinent and undisputed facts are as follows. See (Dec. 3-4.) The employee had a high school education with special training as a machinist. Prior to working for the employer, he unloaded trucks, put away stock, and delivered auto parts for a car dealership. After the industrial injury in 1990, the employee earned about $1970.80 a year or $37.90 per week as a bartender. Also subsequent to his injury, the employee worked as a landscaper. At the time of hearing, he was delivering automobile parts. (Dec. 3-4.)
The employee testified that in that job, he earned $350.00 a week, based on an $7.00 hourly wage for a 47 to 50 hour work week. (March 29, 1993 Tr. 16.) He also testified that his post-injury employment efforts caused him daily swelling and pain in his left ankle. (Tr. 12.)
Dr. Joel Saperstein, an orthopedic surgeon, examined the employee on November 11, 1991 pursuant to G.L.c. 152, § 11A. He opined that the December 31, 1990 work-injury resulted in a left ankle ligament tear, which necessitated surgery. (Saperstein Report, Statutory Ex. 1.) He stated that the employee had reached a medical end result with a permanent partial disability in his left ankle and that, if his ankle was taxed, he would suffer pain. (Dec. 3; Statutory Ex. 1.) The doctor restricted the employee's lifting to no more than 15 pounds and limited his stooping and climbing. Id. Running was medically prohibited. Id. Dr. Saperstein testified that the employee could not return to his former occupation without restrictions and that he had a partial disability for performing work as a landscaper, bartender, or machinist. (Dec. 3; Dep. 14-15.) The § 11A doctor gave a prognosis of future worsening secondary to the probable development of osteoarthritis. (Dec. 3; Saperstein Report, Statutory Ex. 1.)
The parties do not challenge any aspect of the § 11A procedures. See O'Brien v. Blue Cross/Blue Shield, 9 Mass. Workers' Comp. Rep. 16 (1995) appeal docketed, No. 07058 (SJC October 30, 1995); Kaminsky v. Univ. of Massachusetts, 9 Mass. Workers' Comp. Rep. ___ (October 31, 1995) appeal docketed, No. 95-J-908 (AC November 29, 1995).
In her decision, the administrative judge adopted the doctor's diagnosis, prognosis, and causation opinions. While finding that the employee had a partial disability to his ankle which arose out of the work injury, the judge concluded: ". . . it is plain that he is able to earn as much as he did before his injury and is therefore not entitled to any further weekly benefits." (Dec. 4.)
On appeal the employee argues that the judge's decision is not supported by the facts or by her subsidiary findings. Though our standard of review does not permit us to re-weigh the facts of the case, we do find the judge's earning capacity conclusion devoid of the necessary analysis required for a determination of that issue. See G.L.c. 152, § 11C;Gonsalves v. Cape Cod Sportsware Co., Mass. Workers' Comp. Rep. 238 (1991). We therefore vacate and remand for further findings consistent with this opinion.
A judge has considerable discretion and may use her own judgment in determining the amount of an employee's earning capacity. Mulcahey's Case, 26 Mass. App. Ct. 1, 3 (1988). However, those determinations are meaningless unless adequately supported by subsidiary findings that are in turn grounded in the evidence. Altshuler v. Colonial Hilton Hotel, 7 Mass. Workers' Comp. Rep. 62, 65 (1993). Moreover, it is the duty of an administrative judge to make such specific and definite findings upon the evidence reported as will enable this board to determine with reasonable certainty whether correct rules of law have been applied. Praetz v.Factory Mut. Eng'g Research, 7 Mass. Workers' Comp. Rep. 45, 47 (1993). See also Judkins' Case, 315 Mass. 226, 227 (1943). Finally, at minimum the employee is entitled to a decision explaining why his claim for benefits falls short. Donahue v. Petrillo, 8 Mass. Workers' Comp. Rep. 36, 43(1994); See also, G.L.c. 152, § 11B. The decision before us discloses no rationale for the finding that the employee who is medically permanently partially disabled was nonetheless capable of earning his pre-injury average weekly wage ($554.28). We are concerned that the administrative judge may have overlooked the employee's testimony that his then present earnings amounted only to $350.00 a week delivering auto parts and approximately $37.90 a week as a bartender. (3/29/93 Tr. 16.)
This record, absent evidence indicating that the employee had the ability to earn his pre-injury wages, could support an inference that the employee's incapacity continued to some extent after the benefits were terminated as of August 18, 1992. However, this is a determination that the administrative judge, not we, must make. G.L.c. 152, § 11C. Accordingly, we remand this case for further findings on the issue of an earning capacity.
To reach a sound incapacity finding, the employee's medical disability must be evaluated in light of his education, training, age, work experience and any other factors relevant to his ability to earn. Medley v. E.F. Hauserman Co., 7 Mass. Workers' Comp. Rep. 97, 99-100 (1993) [citingLaFlam's Case, 355 Mass. 409, 410-411 (1969)]; see also Scheffler's case, 419 Mass. 251, 256 (1994). Consideration must also be given to the guidance in § 35D regarding the establishment of an earning capacity. That section provides four alternative means to determine earnings: 1) the actual weekly earnings during each week; 2) what an employee is capable of earning in the job held at the time of injury, provided the job is made available and he is capable of performing it; 3) earnings from a suitable job made available to an employee, which he is able to perform; or 4) that which he is capable of earning. Seaman v. AT T Technologies, 8 Mass. Workers' Comp. Rep. 86, 88-89 (1994), citing Major v. Raytheon Corp., 7 Mass. Workers' Comp. Rep. 90, 91-94 (1993); See also, G.L. c. 152, § 35D.
Once the evaluation of the foregoing indices is complete the decision must contain a brief statement explaining the earning capacity conclusion ultimately reached. The present decision provides merely a conclusion in that regard without analysis, frustrating our appellate function to determine whether the conclusion reached comports with the law that must be applied. Hence, the case is appropriate for a recommittal for further findings. G.L.c. 152, § 11C.
So ordered.
_________________________ Susan Maze-Rothstein Administrative Law Judge
_________________________ Edward P. Kirby Administrative Law Judge
_________________________ Suzanne E.K. Smith Administrative Law Judge
Filed: March 27, 1996