Opinion
Board No. 17314-90
Filed: April 19, 1995
REVIEWING BOARD:
Judges Kirby, Maze-Rothstein, and Smith.
APPEARANCES:
John Dumphy, Esq., at hearing, Thomas E. Casartello, Esq., and Frank Saia, Esq., on appeal for the employee.
John N. White, Esq., for the insurer.
The employee appeals from the decision of an administrative judge denying her claim for compensation. She alleged that she sustained a nervous breakdown on April 4, 1990 as a result of work stresses. In her claim, she requested § 34 temporary total compensation benefits, as well as §§ 13 and 30 medical expenses and § 13A counsel fees. At hearing she maintained a claim for total compensation from the date of injury to June 24, 1990 and partial compensation thereafter on a continuing basis, as well as medical benefits. The insurer disputed the claim on the grounds that no personal injury as defined by G.L.c. 152, § 1(7)(A) had occurred and the department had no jurisdiction over the claim (improper forum). It also disputed disability, causal relationship and entitlement to medical benefits.
The judge denied the claim for § 34 benefits, finding that the employee failed to sustain the burden of proving an industrial injury. Because the decision is based upon either a factual premise unsupported by the record or erroneous legal analysis, pursuant to G.L.c. 152, § 11C, we find it arbitrary, capricious and contrary to law. Because it fails to resolve essential conflicts in the evidence, we find it fails to meet the requirements of G.L.c. 152, § 11B. Therefore, we vacate the decision and remand.
The Decision did not Resolve the Conflicts in the Evidence
In his decision, the judge reported Brown's testimony that the employer was engaged in an ongoing pattern of racial discrimination against her by taking her off desirable jobs and replacing her with white people with less seniority and no better skills. He reported that she testified that she was upset and disturbed by the way she had been treated and experienced headaches, cried and felt sick when she went to work. (Dec. 4.) The judge made no findings of fact about this reported evidence.
The Record Contains Conflicting Lay Testimony
We relate the following evidence, not to indicate the result which the judge should have reached but to illustrate the evidentiary conflicts which the judge failed to address in his decision.
Amanda Brown was a black female employee of Strathmore Paper Company. She testified as follows: In June 1989 she returned to work in the padding department as a floater after a disability leave. (Tr. 7-8, 21.) There were five floaters in her department. (Tr. 8.) Floaters rotated among the jobs in the department. (Tr. 22.) All the jobs had the same base pay but some jobs paid a piece rate incentive over the base pay. (Tr. 22-23.) Some jobs were more desirable because of the nature of the work. Brown wanted to rotate into all the available jobs so she could get an equal share of the pay. (Tr. 9-10, 23.) She complained because she was not rotated onto light duty jobs which had been made available to injured employees. (Tr. 11, 25-26.)
Brown believed that she was being discriminated against because of her race. (Tr. 30.) She was the only floater who was given odd jobs where it was difficult to make a piecework bonus. (Tr. 8.) The union contract required that the jobs be rotated. However, her supervisor did not comply with this contract provision and did not rotate the jobs for the other workers. (Tr. 9.) Between January 19, 1990 and April 4, 1990, Brown had about three conversations with her supervisor about the positions she wanted. (Tr. 13.)
On April 3, at the commencement of the second shift, the supervisor took her off a spiral machine on which she had been working. (Tr. 25, 27-28.) Brown complained to a higher level of management. (Tr. 14.) The next day, Brown also complained to her union representative. (Tr. 15.) When the situation was not resolved to her satisfaction, she became upset and went to the company nurse. (Tr. 16.) She then went to the emergency room where she was prescribed tranquilizers and referred to a psychologist, Dr. Friedenson. (Tr. 16-17.) On June 24, 1990 she returned to work for a temporary agency doing factory assembly work. (Tr. 18.)
Brown's testimony was contradicted in part by that of her supervisor, James Horn. According to Horn, there are eight sub-job categories of sorter/assemblers in the padding department. (Tr. 34.) The stripper job was the only one which did not pay a piece rate bonus. (Tr. 35.) He attempted to rotate the jobs, except that he did not rotate persons with job seniority who had expressed a preference for a job under the prior supervisor. He treated these persons as being grandfathered into specific jobs. (Tr. 36, 43-44.) Out of fifteen employees, three were accorded grandfathered status. (Tr. 44.) This grandfathering practice was not in the collective bargaining agreement. He rotated the other employees, giving the better jobs to the persons with the most seniority. (Tr. 36-37, 54.) Most of the workers had more seniority than Brown. (Tr. 48, 51.)
Horn denied giving any employee preference because of a physical problem. He said that the company had non-bonus light duty jobs to which he assigned persons with disabilities. (Tr. 52-53.) Horn denied any complaints by Brown about job assignments prior to April. (Tr. 48.)
On April 3 the employee worked for the first shift on the spiral machine. At the change of shift, Horn took her off the spiral machine and replaced her with a second shift person. He assigned her to the less desirable gathering job. She complained that she was removed from the spiral machine because of her age. (Tr. 40.) The next morning, accompanied by the union representative, she complained that Horn discriminated against her because of her color. (Tr. 41.) Horn denied the allegation of racial discrimination. Brown was referred by her union representative to the company nurse. (Tr. 49.) Brown did not file a union grievance about this incident. (Tr. 53.)
During his testimony, Horn disclosed that production sheets may exist which would show on which machines Brown worked from June 1989 until April 4, 1990. (Tr. 45.) Employee's counsel requested Horn to prepare a list of the positions Brown worked. (Tr. 46.) The judge responded that it was a reasonable request. (Tr. 47.) At the close of the hearing, the judge said that the list was the key to the whole case because it would show whether preferential treatment existed. (Tr. 56.) This list was never entered into evidence. (Dec. 2.)
The Record Contained the Following Medical Evidence
The medical evidence in the case consisted of the reports and progress notes of Dr. Friedenson. In his report of June 15, 1990, Dr. Friedenson opined that there was a temporal relationship between the cutback in her hours at work and the development of her anxiety and depression which may have some causal elements. He said she was recovering and was not "disabled in any permanent way" (emphasis supplied). She was doing better on Trazodone, with many of her depressive symptoms in remission. She had an excellent long term prognosis. The attached progress notes showed examinations on April 16, 1990 and May 14, 1990, with prescribed medications through June 14, 1990. (Insurer ex. 1.)
In his report of January 24, 1991, Dr. Friedenson stated: "Ms. Brown appeared to have been in her normal state of health until approximately two weeks prior to her emergency room visit when, subsequent to the reported difficulties she was experiencing with her employer, she developed a syndrome characterized by increased anxiety, frequent tearfulness, poor sleep, and a decreased appetite. In addition, she admitted to fleeting suicidal ideation; however, she denied any active suicidal plan or intent and was not considered at risk for self-harm. The patient was given a prescription for a mild tranquilizer which initially helped calm her down and improved her sleep pattern. However, as proceedings with her employer continued, the patient's symptoms appeared to worsen and she was started on a trial of antidepressant medication with marked improvement in her symptoms noted. MS. Brown continued in outpatient treatment on a regular basis for approximately eight months. However, on December 18, 1990, she did not show for her regularly scheduled appointment and has not been heard from since." (Employee ex. 2.)
The Decision on Medical Issues
In a portion of the decision labelled "medical course," the judge reported Dr. Friedenson's treatment and his opinion recited above from insurer exhibit 1. Then the judge wrote: "I accept the medical reports of Dr. Friedenson to the fact that the employee is not disabled." (Dec. 5.)
Other Subsidiary Findings
In additional subsidiary findings, the judge found that the union contract clearly specified how overtime would be distributed and that Horn did not keep any record regarding overtime or who was rotated within the job classification. The judge further commented: "If the employee had a complaint about how overtime was being assigned, it would appear that would be a union problem, and the employee would be allowed to submit a grievance under the collective bargaining agreement." (Dec. 5.)
Judge's Conclusions of Law
The judge then concluded, without any specification of the applicable legal standards or discussion of § 1(7)(A), that the employee failed to sustain the burden of showing an industrial injury on or about April 4, 1990 and that her condition "is not directly or causally related to her employment with the employer." He ordered that the § 34 claim be denied and entered no order on the remaining issues. (Dec. 6.)
Issues
The employee argues on appeal that the decision is arbitrary, capricious and contrary to law. We agree. The decision is based on either a factual finding which is unsupported by the record evidence or erroneous legal analysis and fails to resolve all the issues presented.
Legal Analysis
Section 11C requires us to consider whether the decision is factually warranted and not "[a]rbitrary or capricious," in the sense of having adequate evidentiary and factual support and disclosing reasoned decision making within the particular requirements governing a workers' compensation dispute. Scheffler's Case, 419 Mass. 251, 258 (1994). Without evidentiary support for a factual finding, the finding is arbitrary. Chadwick v. Chadwick Greenhouse, 9 Mass. Workers' Comp. Rep. 191 (1995). If the factual finding goes to a central contention of the case, then it prejudices a party's substantial rights. See G.L.c. 30A, § 14 (7), as amended through St. 1973, c. 1114, § 3; G.L.c. 231 §§ 119 and 132. Errors which injuriously affect substantial rights of a party vitiate the decision, mandating a new hearing. Bonneau v. Acme Automotive Center, 7 Mass. Workers' Comp. Rep. 207, 208 (1993), citing Ralph's Case, 331 Mass. 86, 90 (1954); Cibene v. Brentwood Realty Trust, 8 Mass. Workers' Comp. Rep. 143 (1994).
The employee attacks the judge's subsidiary finding that Dr. Friedenson reported that she was not disabled. The terms "disability" and "incapacity" are words of art in the Massachusetts workers' compensation system. Medley v. E.F. Hauserman Co., 7 Mass. Workers' Comp. Rep. 97, 99 (1993). The term "disability" refers to the medical aspect of incapacity. The Committee on Occupation Health of the Academy of Orthopaedic Surgeons has defined disability as "the limitations in work activities or the activities of daily living resulting from impairment" and impairment as "anatomic or physiologic loss of function." A Physician's Primer on Workers' Compensation, Appendix 1, Glossary of Workers' Compensation Terms, at 61-62 (1992). Locke has defined incapacity as an inability to earn resulting from disability. 29 Mass. Practice, Workmen's Compensation, § 321 (2d ed. 1981).
Here, the judge has failed to provide a reasoned explanation for why he denied the employee's claim for weekly wage replacement benefits. The judge's conclusion that the reports of Dr. Friedenson support a finding that the employee was not "disabled" during the claim period is clearly erroneous if, by that term, the judge meant that the employee did not have a diagnosed medical condition with loss of function. Dr. Friedenson diagnosed and treated the employee's depression, with the result that the employee's psychiatric condition improved. Dr. Friedenson did not report that the employee was not disabled; he merely opined that the disability was not permanent. If by the term "disability," the judge meant incapacity, his analysis is deficient because it fails to encompass both medical and economic factors. See Scheffler's Case, 419 Mass. 251, 256 (1994); Lagasse v. Dennison National, 8 Mass. Workers' Comp. Rep. 246, 247 (1994).
Based upon the subsidiary finding of no disability, the judge concluded that the employee did not prove an industrial injury. In so doing, he may have misperceived the legal definition of a "personal injury" under the workers' compensation act. Lost time from work is not an essential element of a personal injury. An injured worker is entitled to adequate and reasonable medical services and necessary medicines to treat the injury whether or not the injury causes wage loss. Tigano v. Acme Boot Company, 8 Mass. Workers' Comp. Rep. 116, 119 (1994); Scheffler's Case, 419 Mass. 251, 256 (1994).
Furthermore, the judge erred as a matter of law if he denied the employee's claim because of the availability of union grievance procedures. Section 38 provides that benefits derived from any source other than the insurer shall not be considered in determining the amount of compensation payable under c. 152, except as expressly provided elsewhere in the chapter. There is no provision in the workers' compensation act which permits a judge to deny a claim solely because the collective bargaining agreement provides a collateral remedy for the injury-producing conduct.
Conclusion
The judge here either made a factual finding with no evidentiary support and or failed to apply proper legal principles. In any case, the errors were not harmless. Therefore, we must vacate the decision and remand.
On remand, the judge should make factual findings regarding what occurred in the workplace to address the conflicting evidence. Based upon the expert opinion evidence, he should find whether or not workplace circumstances caused a psychiatric injury. See Lavoie v. Westfield Pub. School Sys., 7 Mass. Workers' Comp. Rep. 77, 81 (1993) (expert opinion testimony is generally required in mental injury cases because the etiology of mental disability is rarely a matter of general human knowledge and experience). If he finds a psychiatric injury, he should make factual findings about the nature and extent of the employee's mental or emotional disability and, applying the provisions of G.L.c. 152, § 1(7)(A) as it existed on the date of injury, determine whether work was a significant contributing cause of the mental disability.
On April 4, 1990, G.L.c. 152, § 1(7)(A) provided in pertinent part: "Personal injuries shall include mental or emotional disabilities only where a significant contributing cause of such disability is an event or series of events occurring within the employment. No mental or emotional disability arising principally out of a bona fide, personnel action including a transfer, promotion, demotion, or termination except such action which is the intentional infliction of emotional harm shall be deemed to be a personal injury within the meaning of this chapter."
If the judge finds that work was a significant contributing cause of the mental disability, he should next apply G.L.c. 152, §§ 1(7)A and 29 and determine whether the work assignments which caused the injury were bona fide personnel actions not intended to inflict emotional harm and if so, deny the claim. If the causative actions were not bona fide personnel actions, then the employee is entitled to medical benefits pursuant to G.L.c. 152, § 30, and, if the injury incapacitated the employee for more than five calendar days, to weekly wage replacement benefits pursuant to §§ 34 or 35.
Section 29 mirrors the language of § 1(7)A and provides in pertinent part: "No mental or emotional disability arising principally out of a bona fide, personnel action including a transfer, promotion, demotion, or termination except such action which is the intentional infliction of emotional harm shall be deemed to be a personal injury within the meaning of this chapter."
As the hearing judge no longer serves in the department, we return the case to the senior judge for reassignment to a different administrative judge for hearing de novo.
Judge Kirby concurs.
Since the 1991 amendment to our § 11C standard of review, appellants are now in peril of an assessment of penalties for asking us to weigh the record evidence. G.L.c. 152, § 11C and § 14(1).
The "new" § 11C reads in pertinent part:
. . . The reviewing board shall reverse the decision of an administrative judge only if it determines that such administrative judge's decision is beyond the scope of his authority, arbitrary or capricious, or contrary to law. The reviewing board may, when appropriate, recommit a case before it to an administrative judge for further findings of fact. . . .
Amended by St. 1991, c. 398, § 31.
Compare with the relevant language from the "old" § 11C review standard:
. . . The reviewing board shall reverse the decision of a member only if it determines on the basis of such member's written opinion and on an examination of a written transcript of the hearing, that the member's decision is beyond the scope of his authority, arbitrary or capricious, contrary to law, or unwarranted by the facts. The reviewing board may weigh evidence, but may not review determinations by the member who conducted the hearing regarding the credibility of witnesses who have given testimony. . . .
Added by St. 1985, c. 572, § 25. (Emphasis supplied).
Section 14(1) reads:
(1) Except as provided in subsection three, if any administrative judge or administrative law judge determines that any proceedings have been brought, prosecuted, or defended by an insurer without reasonable grounds:
(a) the whole cost of the proceedings shall be assessed upon the insurer; and
(b) if a subsequent order requires that additional compensation be paid, a penalty of double back benefits of such amount shall be paid by the insurer to the employee, and such penalty shall not be included in any formula utilized to establish premium rates for workers' compensation insurance.
If any administrative judge or administrative law judge determines that any proceedings have been brought or defended by an employee or counsel without reasonable grounds, the whole cost of the proceedings shall be assessed against the employee or counsel, whomever is responsible.
Amended by St. 1991, c. 398, §§ 36 to 38. (Emphasis supplied).
Review board members should thus err on the side of caution when delving into the record for illustrations of how the decision making process went awry. A report of the findings made by the judge, with reference to the decision itself, differs from wholesale reliance on the record evidence with transcript and deposition reference. The former is appellate work, the latter smacks of fact finding. Though well intended, the majority steps too far across this line. In other respects I concur.