Opinion
BOARD No. 03951694
Filed: December 16, 1998
REVIEWING BOARD DECISION (Judges Levine, Carroll Maze-Rothstein)
APPEARANCES
Lindsay P. Rand, Esq., for the employee.
Edward M. Moriarty, Jr., Esq., for the insurer at hearing.
Paul T. Fisher, Esq., for the insurer on brief.
The employee appeals the decision of an administrative judge awarding him a closed period of § 34 temporary total incapacity benefits and ongoing § 35 temporary partial incapacity benefits. The employee argues that neither the average weekly wage nor the assigned earning capacity are grounded in the evidence and are therefore arbitrary. The employee's arguments have merit; we recommit the case for further findings.
Leslie Caldwell, presently sixty-four years old, began work as a floor installer in 1959. (Dec. 4.) He had worked for Shamrock Enterprises for approximately two years when, on September 1, 1994, he felt "something in his back" while placing boxes of tiles on a dolly. He tried pushing the dolly but fell to the floor in severe pain. He suffered a lumbosacral spine injury. He was examined by an emergency room physician who prescribed ice and ibuprofen. He subsequently underwent a course of physical therapy. (Dec. 5-6.)
The insurer commenced weekly incapacity benefits, paying § 34 temporary total incapacity benefits from September 1, 1994 to October 18, 1994 and ongoing § 35 temporary partial benefits beginning on October 19, 1994. (Dec. 4.) Thereafter, the employee filed a claim for further § 34 benefits, which the insurer opposed. At conference, the administrative judge issued an order of payment. Both parties appealed to a hearing de novo. The issues in dispute included the extent of the employee's incapacity and his average weekly wage. (Dec. 2-3.)
The decision does not specify the terms of the order, but we take notice of the conference order, which required the insurer to pay ongoing § 35 benefits from February 20, 1995, at the rate of $360.00 per week based upon the employee's average weekly wage of $957.00 and an earning capacity of $357.00.
Prior to the hearing, and pursuant to § 11A, the employee was examined by an impartial physician, Dr. Stanley M. Leitzes. Dr. Leitzes' report and deposition were admitted into evidence. In addition, due to the complexity of the matter, the judge allowed additional medical evidence to be admitted. Dr. Leitzes opined that the employee had chronic lumbosacral spine sprain superimposed on degenerative disc disease and disc bulging at L1 through L5. He further opined that "the" major cause of the employee's ongoing disability was his industrial injury of September 1, 1994. (Dec. 6-7; Leitzes Dep. 30.) The judge stated that he adopted the report and deposition testimony of the impartial physician as his subsidiary findings. (Dec. 5-7.) The judge found credible the employee's testimony that he still experienced pain in his lower back as a result of the injury, that he was unable to perform the physical duties of a floor installer, and that he could not lift any objects of substantial weight. (Dec. 7.) The judge concluded that the employee had been temporarily totally disabled from September 5, 1994 to October 18, 1994, and found that the insurer had voluntarily paid § 34 benefits in the amount of $565.94 per week based on an average weekly wage of $957.00 for that period. He further concluded that the employee was partially disabled from October 19, 1994 and continuing, and ordered the insurer to pay § 35 benefits in the amount of $360.00 per week based on an assigned earning capacity of $357.00 beginning on October 19, 1994. (Dec. 8-9.)
We recognize, of course, that the standard for compensability is that the industrial injury be "a" major cause of disability. § 1(7A).
The judge also indicated that he adopted the evidence of the attending physician, Dr. Blaustein, as his subsidiary findings. (Dec. 7.) The judge stated that the evidence from Dr. Blaustein was not inconsistent with the impartial physician's findings. (Dec. 6-7.) Although the decision is silent as to the form of the evidence from Dr. Blaustein, the insurer appears to concede that there was evidence from Dr. Blaustein which was admitted into the hearing record. (Ir. Bf. p. 2.)
The employee appeals, alleging that neither the earning capacity determination nor the average weekly wage calculation is grounded in the evidence. Because the judge failed to apply the appropriateScheffler analysis in determining earning capacity, and because he failed to support his finding of average weekly wage with adequate subsidiary findings, we reverse and recommit the case.
It is "`axiomatic that the amount of an employee's average weekly wage is a question of fact for the administrative judge.'" Cahoon v. General Welding, Inc., 10 Mass. Workers' Comp. Rep. 235, 238 (1996), quoting Wheeler v. Jean Alden Store, Inc., 6 Mass. Workers' Comp. Rep. 226 (1993). We may not substitute our judgment for that of the fact finder. Cahoon, supra at 238. However, the judge is governed in his determination by the definition of "average weekly wages" found in § 1(1), which reads, in pertinent part, as follows:
". . . [T]he earnings of the injured employee during the period of twelve calendar months immediately preceding the date of injury, divided by fifty-two; but if the injured employee lost more than two weeks' time during such period, the earnings for the remainder of such twelve calendar months shall be divided by the number of weeks remaining after the time so lost has been deducted. . . ."
The judge, in determining the average weekly wage, must "make such specific and definite findings based upon the evidence reported as will enable this board to determine with reasonable certainty whether correct rules of law have been applied." Crowell v. New Penn Motor Express, 7 Mass. Workers' Comp. Rep. 3, 4 (1993).
Here, we cannot tell how the judge arrived at the figure of $957.00 as the employee's average weekly wage. That figure appears in the decision for the first time near the end when the decision orders the insurer to make payments to the employee. (Dec. 9.) There are no subsidiary findings on the average weekly wage issue. The $957.00 figure does not appear to comport with either the employee's or the insurer's method of calculating average weekly wage, or with any other method sanctioned by § 1(1). The employee argues that his average weekly wage should have been determined by dividing the total amount of his earnings for the twelve months preceding the injury ($26,808.63) by the total number of weeks worked (twenty-seven), for an average weekly wage of $992.91. The insurer argues that, because the employee's work was seasonal and episodic, the employee's total yearly earnings as represented by the wage form should have been divided by fifty two weeks, which would result in an average weekly wage several hundred dollars less than the $957.00 figure chosen by the judge. Nevertheless, the insurer claims that the judge has discretion to find a $957.00 average weekly wage and does not challenge the judge's finding. (Ir. Bf. p. 7-8.)
The judge does not have the discretion, as the insurer implies, to pull a figure for average weekly wage out of thin air; nor can he base it on a claimed amount at conference. The hearing is a de novo proceeding, and all matters in dispute must be decided by the judge based on the evidence presented at hearing without regard to the conference order. See Grande v. T-Equipment Constr. Co., 10 Mass. Workers' Comp. Rep. 379, 381 (1996). Although the parties agreed to submit the "average weekly wage form" as a joint hearing exhibit, (Dec. 1), there was no stipulation as to the average weekly wage itself, and the amount was specifically disputed by the insurer. (Dec. 3; Tr. 4, 10.) On recommittal, the judge must make specific and definite findings regarding the method of calculating the average weekly wage based on the evidence presented at hearing.
The average weekly wage in the conference order was $957.00. See n. 1 supra.
The employee's testimony included that his was a year round, not seasonal occupation, (Tr. 92-93), and that he worked for other employers in addition to the present employer. (Tr. 17-18.) Compare Roberts v. Central Heating and Cooling, 9 Mass. Workers' Comp. Rep. 431, 432-433 n. 2 (1995) (appropriate to divide the total amount earned by the number of weeks worked, though fewer than fifty-two, and thus excluding weeks not worked, where job is continuous and without a defined termination) with Bunnell v.Wequassett Inn, 12 Mass. Workers' Comp. Rep. 152, 154-155 (1998) (where the employee is a seasonal worker, the weeks that the employee does not work are included in the number of weeks by which the total amount is divided).
The judge's findings on earning capacity are also inadequate. Where, as here, there is no direct evidence on earning capacity, the judge is entitled to use his own knowledge and judgment in assigning one. Mulcahey's Case, 26 Mass. App. Ct. 1 (1988); Mello v. Santo Christo Church, 12 Mass. Workers' Comp. Rep. 132, 134 (1998). However, such determination must be supported by adequate subsidiary findings grounded in the evidence and must not be arbitrary and capricious. Beagle v. Crown Serv. Sys., Inc., 10 Mass. Workers' Comp. Rep. 282, 284 (1996). Further, in determining the amount, if any, of the employee's earning capacity the judge must analyze how the employee's age, education, training and experience intersect with his physical/medical limitations to impact his ability to find and hold a job. Scheffler's Case, 419 Mass. 251, 256 (1994).
At the hearing, the employee requested the opportunity to depose a vocational expert, but was advised by the judge to wait until after the medical depositions were taken to decide whether he wanted to pursue the deposition. (Tr. 6-10.) The employee made a formal motion on May 23, 1996, which the judge denied on June 24, 1996. There is no claim of error.
This case contains no such analysis. The judge stated that he adopted the impartial physician's report and deposition testimony as his subsidiary findings (Dec. 6, 7), but he did not mention specifically that the impartial physician restricted the employee from repetitive bending and heavy lifting for an eight-hour day. (Imp. Ex.) Nor did the judge indicate how, despite those restrictions, and given the employee's age (sixty-one at the time of the hearing), education, training and experience (flooring work for 35 years), he could earn $357.00 per week. Thus, while the judge made token reference to the criteria for assessing earning capacity, he made virtually no findings that specifically address medical and vocational evidence that could support the assignment of a $357.00 per week earning capacity. On recommittal, the judge should set forth his analysis of the employee's work-related medical condition and its impact on his ability to earn in the context of the employee's age, education, training and experience. Peters v. City of Salem Cemetery Dept., 11 Mass. Workers' Comp. Rep. 55, 58 (1997).
As pointed out earlier, supra at 2, the judge credited the employee's testimony that he could not work as a floor installer. (Dec. 7.) The impartial physician agrees (Leitzes Dep. 46; see also p. 45 et seq.)
The judge found that the employee completed his high school education. (Dec. 4.) This suggests that the employee is a high school graduate. But the only evidence on this issue were the employee's testimony that he completed the ninth (Tr. 13-14) and the Employee Biographical, Medical and Work Experience Data Sheet, which also indicates that the employee completed the ninth grade. (Employee Ex. 1.)
The case is recommitted to the administrative judge who heard the case for further findings consistent with this opinion.
So ordered.
________________________ Frederick E. Levine Administrative Law Judge
________________________ Susan Maze-Rothstein Administrative Law Judge
________________________ Martine Carroll Administrative Law Judge
FEL/kai
FILED: December 16, 1998