Opinion
BOARD No. 065637-90
Filed: January 31, 1996
REVIEWING BOARD DECISION
(Judges Maze-Rothstein, Kirby and Smith)
APPEARANCES
Paul A. Gargano, Esq., for the employee
Ana Mari De Garavilla, Esq., for the insurer
The employee appeals from a denial of his claim for benefits. Multiple errors in the decision require that the case be recommitted for a decision de novo consistent with this opinion.
The employee, now sixty-one years old, was born in Italy and attended school there through the sixth grade. He was employed as a laborer or laborer-foreman by Vappi Company since 1965. (Dec. 3.)
On March 13, 1990, while picking up debris and throwing it out a second floor window into a dumpster, the employee lost his footing and sustained a twist injury to his back. He began treatment for this injury beginning on March 30, 1990. (Dec. 3-4.) Following a § 10A conference, an administrative judge ordered temporary total incapacity benefits for a closed period of time and related § 30 medical benefits.
The employee returned to work on November 7, 1990 on a light duty basis. (Dec. 4.) On November 9, 1990 the employee attempted to lift a piece of sheet rock and again experienced back pain.
Id. He has not worked since that time. Id. On December 14, 1990, the employee submitted a claim for benefits relative to the injury of November 9, 1990 pursuant to §§ 34, 13, 30 and 13A. Following a conference before the present administrative judge, his claim was denied in an order filed on July 18, 1991. (Dec. 3.)
After an evidentiary hearing, the judge again denied the claim for compensation. (Dec. 7.) It is the employee's appeal from this decision that is before us.
The judge made the following general findings: 1) the employee allegedly suffered a back-related injury on November 9, 1990; 2) he sought no treatment for the injury until March 30, 1990 and; 3) he was/is not disabled from gainful employment. (Dec. 6) There are several errors summarized in the above general findings, each of which would alone warrant a remand. We address them in turn and order a decision de novo.
First, in general finding number 1, the judge concluded that the employee "alleges sustaining a back injury on November 9, 1990 while in the course of his employment". (Dec. 6.) (Emphasis added.) This employee's `allegation' was the threshold issue and was exactly what was supposed to be decided. The judge was required to make clear and specific findings resolving what did or did not occur on November 9, 1990. A general finding about what was `alleged' gets the parties no closer to a decision than they were at the outset of the hearing. A judge must address the issues in a manner enabling this board to determine with reasonable certainty whether correct rules of law have been applied to facts that could properly be found. Praetz v. Factory Mut. Eng'g Research, 7 Mass. Workers' Comp. Rep. 45, 47 (1993). And at a minimum, a judge is required to set forth the issues in controversy, resolve disputed and inconsistent facts with clear findings, make a decision on each issue and render a brief statement of the supporting grounds for each decision.Kitmacher v. Besse Clarke, 8 Mass. Workers' Comp. Rep. 130, 131 (1994); G.L.c. 152, § 11B. The decision here 89 meets neither proposition.
Next, there are irreconcilable inconsistencies in the decision and in general finding number 2. The employee was found to have allegedly sustained a November 9, 1990 work-related injury. (Dec. 6.) The judge further found that the employee sought treatment because of neck, back and right leg pain later that same month. (Dec. 4.) Yet, in both the subsidiary and general findings the employee was faulted for not having medical care in March, 1990 seven months prior to the subject occurrence. (Dec. 4, 6.) Apparently, the second incident had been confused with the initial March 1990 injury.
Aside from the lack of a decision in finding number 1 and the internal inconsistency of finding number 2, discussed above, the ambiguity in general finding number 3: the employee "was/is not disabled from gainful employment", leaves us wondering what exactly is the finding supposed to mean? If the judge meant to find there was a November 9, 1990 injury, was the employee ever incapacitated from work between the injury date and the close of the record? If so, when and for how long, based on what evidence? As framed, the findings do not conform to the standard required so that we may afford proper appellate review to which an appellant is entitled pursuant to § 11C. Praetz at 47., citing Demetrius's Case, 304 Mass. 285, 287 (1939). It simply is impossible on the decision before us to determine whether the judge's denial of benefits was warranted. Thus, we are required to recommit the case on this basis as well. G.L.c. 152, § 11C; see G.L.c. 152, § 11B.
Additionally, the judge adopted, "in part", the opinion of Dr. Grady, without disclosing what part. Where medical testimony conflicts, it is within the judge's authority to adopt all, none or part of the opinion of a medical expert. Antoine v. Pyrotector, 7 Mass. Workers' Comp. Rep. 337, 341 (1943). However, where the findings do not disclose what portions of an expert's testimony are found to be fact and do not address the internal inconsistencies in that expert's testimony, the reviewing board cannot render adequate appellate review. Thomas v. Wayland Millwork Corp., 8 Mass. Workers' Comp. Rep. ___ (March 31, 1994); see Praetz, supra at 47.
We note that Dr. Grady examined the employee once before the November 1990 injury and twice afterwards. However, at none of these examinations did he have a history of the November 9, 1990 injury. The subject injury date was brought to his attention at the deposition, but the doctor stated that his medical opinion was based on his prior examination, and even if he had other objective evidence, he stated "I don't believe I would have changed my opinion." (Dep. P. 23) On remand, the judge must bear in mind that medical opinions must be given to a reasonable degree of medical certainty, free of speculation. Sevigny's Case, 337 Mass. 747, 751 (1958).
Furthermore, physical handicaps or disabilities are only one of the factors the judge must consider in determining whether an incapacity is partial or total and temporary or permanent. Scheffler's Case, 419 Mass. 251, 256 (1994). An incapacity adjudication must make a realistic appraisal of the medical effect of a physical injury on an individual claimant to determine whether there is an impairment of earning capacity. Scheffler, at 256, citing L. Locke, Workmen's Compensation § 321, at 375-376 (2d ed. 1981). If there is, compensation must be awarded.
Thus, on remand, if applicable, the judge should make findings on whether the employee sustained an industrial injury and if he did, whether the employee can obtain remunerative work of any kind within his ability to perform, after considering his age, experience, training and other capabilities in connection with any residual physical impairment.Scheffler's Case, 419 Mass. 251, 256 (1994); Frennier's Case, 318 Mass. 635, 639 (1945); LaFlam's Case, 355 Mass. 409, 410 (1969). Which is to say, did the sixth grade educated, sixty-one year old employee who had performed heavy labor for his entire work history have (and to what extent) a capacity to earn income of a substantial and not trifling nature? If so, when did that capacity begin? And when it began, did his earning power begin in a partial fashion? If the response to this question is also yes, then for how long was his capacity partial?
Finally, even if the employee lost neither wages nor sufficient time from work, foreclosing any right to weekly benefits, if he sustained a work-related injury, he may still be entitled to § 30 medical benefits.Tigano v. Acme Boot Co., 8 Mass. Workers' Comp. Rep. 116, 119 (1994).
Accordingly, we vacate and remand for a new decision on the existing record. If the judge deems it necessary, in the interests of justice, he may take additional evidence.
So ordered.
_________________________ Susan Maze-Rothstein Administrative Law Judge
_________________________ Edward P. Kirby Administrative Law Judge
_________________________ Suzanne E.K. Smith Administrative Law Judge
Filed: January 31, 1996