Opinion
BOARD No. 01836893
Filed: March 30, 1998
REVIEWING BOARD DECISION
(Judges Wilson, Fischel and Levine).
APPEARANCES
Richard Heavey, Esq., for the employee.
David L. Cronin, Esq., for the self-insurer.
Both parties appeal from the decision of an administrative Judge, who awarded a § 34 benefits for total, temporary incapacity from May 10, 1993 to May 9, 1996, and § 35 benefits for temporary, partial incapacity thereafter. Because the analysis is unclear, we recommit the case for further findings.
Robert Casagrande was forty-eight years old at the time of hearing. A high school graduate, he has been employed solely as a sheet metal worker since entering the work force. He most recently worked in that capacity at Massachusetts General Hospital where he did metal duct work, installed ceiling brackets and was a laborer until he injured his neck and low back on May 10, 1993. Later testing revealed a herniated disc lesion. (Dec. 3-5.) He underwent a cervical laminectomy and a fusion that involved a bone graft from his right iliac crest. The employee claims he subsequently developed an inguinal hernia at the graft site that required surgical repair. He complains of continuing pain in his neck, back and hernia area as well as left facial pain. (Dec. 5, 8.)
The self-insurer accepted the employee's initial claim, paid § 34 benefits and thereafter, filed a complaint for discontinuance. The complaint was denied at conference and the self-insurer appealed, giving rise to a hearing de novo. (Dec. 1, 2.)
The employee testified at hearing, and the report and deposition of the § 11A medical examiner, Dr. Frederick Ayers, were admitted. (Dec. 1.) Because Dr. Ayers stated in his deposition he would defer to an expert on the issue of the employee's facial pain and that the attending physician was in a better position to determine the causal relationship of the employee's hernia, the administrative judge declared the medical issues complex, thereby allowing the parties to submit additional medical evidence. (Dec. 6.)
The issues at hearing relevant to this appeal were the extent and duration of present incapacity and its causal relationship to the original injury. The judge adopted Dr. Ayers' diagnosis of post cervical laminectomy and fusion of the cervical disc and lumbar disc condition, both causally related to the work injury, as well as his opinion that the employee was permanently and partially, medically disabled. (Dec. 6, 8.) As for the employee's facial pain complaints, the judge adopted the opinion of Dr. Martin J. Dunn, who diagnosed chronic cervical strain and left temporomandibular meniscal dislocation with reduction. In his November 19, 1996 report, which was specifically adopted by the judge, Dr. Dunn causally related this diagnosis to the work injury. (Dec. 7.) With regard to the right inguinal hernia, the judge adopted the opinion of Dr. Donald Lucek that Mr. Casagrande developed a right groin hernia between the scar from the bone harvesting and the internal ring. (Dec. 7.)
Dr. Lucek further stated in the same November 19, 1996 report that "to a reasonable degree of medical certainty, the bone harvesting from the cervical injury developed into this groin hernia, which required surgical treatment on September 9, 1994." While the judge did not specifically adopt this causal relationship statement, the self-insurer does not raise this as an issue and does not dispute the necessity of the medical bills attendant to the treatment of this condition.
Based on the credible evidence, the judge ordered the self-insurer to pay § 34 benefits from May 10, 1993 to May 9, 1996 and § 35 benefits, with an earning capacity of $176.14, from May 10, 1996 to date and continuing.
The employee asserts that the judge erred thrice: (1) in awarding an earning capacity; (2) in denying his motion to amend his claim to include a § 34A claim; and (3) in not excluding the testimony of the impartial examiner or assigning it improper weight. The self-insurer also appeals, arguing that the judge erred in failing to consider its proffered medical reports. We address each issue in turn.
The judge made the following findings on earning capacity.
There was credible evidence taken from the Employee on the witness stand regarding his work experience being limited to laborious duties or sheet metal work both requiring a lot of physical hard work. He further describes his pain as continuing in his neck, mid back and in the right hernia area . . . . At the time of hearing he was going to a stress management program for eight weeks. Prior to this he had been at the pain clinic and had done a lot of physical therapy at different hospitals. They have not seemed to give him the relief that the physicians expected.
(Dec. 8.)
I have adopted the impartial physician's findings and based on the factor of his age, 48 years of age, education, graduate of a high school, and past work experience, none relating to light duty work, there would appear that this individual is intelligent enough to find some type of other training. I find the Employee is permanently partially disabled from May 10, 1996 to date and continuing.
(Dec. 9.)
Disability and incapacity are not equivalent terms. See Wenetta v. J.C. Penney Catalog Outlet Store, 10 Mass. Workers' Comp. Rep. 403, 406 (1996). Disability is a medical assessment of physical injury or harm, while incapacity is a combination of the medical assessment and an economic element, the loss of earning capacity traceable to the physical injury. Scheffler's Case, 419 Mass. 251, 256 (1994). The impact on earning capacity caused by a physical disability varies from one individual to another. Id. A judge must gauge the employee's age, education, training, work experience, vocational limitations and other factors pertinent to the employee's ability to cope with the physical effects of an injury that impact his ability to earn. Id.
In the case before us, the judge adopted Dr. Ayers' opinion that the employee was partially and permanently disabled, without mention or analysis of either the specific limitations set forth by Dr. Ayers, i.e., limited duty capacity, no lifting greater than five pounds, no prolonged standing, sitting, stooping or bending, no significant head turning and no work above shoulder level, or the effects of the employee's hernia about which Dr. Ayers did not comment. (Ayers report 3, dated July 2, 1995; Dep. 13.) In addition, the judge demonstrated his knowledge of the economic factors to be considered in determining an earning capacity, but stopped short of an adequate analysis with findings that illustrate how this employee, with these physical limitations and an exclusively heavy physical work job background, is capable of earning $176.14 per week. We caution that the judge's finding that the employee "is intelligent enough to find some type of other training" has no relevance to the employee's present level of vocational training and is speculative. On remand he must make additional findings on the degree of the employee's physical disability and its effect, together with the existing vocational factors, on his earning capacity. See Scheffler's Case, 419 Mass. at 256. If the judge determines that the employee has the capacity to earn wages, he must determine when that occurred, bearing in mind that any date chosen for a change in weekly benefits must be grounded in a medical or vocational, rather than procedural, event. Acosta v. City of Boston, 11 Mass. Workers' Comp. Rep. 235, 236 (1997).
The employee next contends that the judge erred in denying his motion to amend his claim to include a claim for § 34A benefits. The employee filed his motion on May 29, 1996, after exhaustion of his § 34 benefits on May 10, 1996. Although the lay testimony had been taken seven months previously, the medical testimony, often pivotal to determination of any § 34A claim, was not completed. The impartial examination had occurred on July 21, 1995, but the deposition of the impartial examiner was not yet scheduled. (letter from R. Heavey, dated August 6, 1996.) Nonetheless, an award of § 34 benefits typically requires findings on both lay and medical evidence. The judge has not disclosed his reasons for denying the employee's motion, although the employee avers the administrative judge interpreted the 1991 amendment to § 34 as requiring exhaustion of both §§ 34 and 35 benefits prior to an award of § 34 benefits. The self-insurer concedes this in its closing argument. We recently held that the 1991 amendment to § 34A makes no requirement that both §§ 34 and 35 be paid or exhausted prior to an award of § 34A benefits. Constant v. Family Planning Council, 11 Mass. Workers' Comp. Rep. ___ (November 6, 1997). On recommittal, the judge should determine whether the insurer's rights would be unduly prejudiced by allowance of the motion in accordance with 452 Code Mass. Regs. § 1.23(1).
Although labeled a motion to amend claim, this was in effect a motion to join a claim, as there was no employee claim to amend. The matter initially before the judge was the self-insurer's complaint to discontinue or modify.
Chapter 452, § 1.23(1) of the Code of Massachusetts regulations states in pertinent part:
At the time of a conference or thereafter, a party may amend such claim or complaint only by filing a motion with an administrative judge. Such a motion shall be allowed by the administrative unless the amendment would unduly prejudice the opposing party.
Finally, the employee maintains that the judge should have excluded Dr. Ayers' testimony because he demonstrated bias. In his deposition Dr. Ayers was asked if it were his philosophy that "unless someone is catastrophically injured that they should try to get on with their life and try to go out and do something to keep active[,]" to which Dr. Ayers replied that it was not only his philosophy but he thought "it [was] good medical care for people to be as physically active as possible to prevent further limitation." (Dep. 30.) This issue was presented by motion dated November 5, 1996, but the judge denied the motion without making findings on the claim of bias. Because impartiality is essential to the integrity of the § 11A examiner process, the judge must specifically address the claim of bias and make specific findings and rulings. See Martin v. Red Star Express Lines, 9 Mass. Workers' Comp. Rep. 670, 673 (1995).
We turn now to the self-insurer's argument that the judge erred in failing to consider its medical experts. On November 8, 1996, the administrative judge declared the medical issues complex and granted the parties permission to submit additional medical reports. On November 20, 1996, the employee submitted the reports of Doctors Dunn and Lucek. Those reports are discussed in the judge's decision. (Dec. 7.) On November 22, 1996, the self-insurer submitted the reports of Doctors Sewall and Wyman. Those reports, although in the board file, are neither listed as exhibits nor discussed in the decision. Thus, we are unable to determine whether the judge considered that evidence or considered but did not adopt it. On remand he must indicate whether the reports are admitted and, if so, at the very least list the documents as exhibits, and may make findings either adopting or rejecting the self-insurer's medical experts.
The case is recommitted to the administrative judge for further findings in accordance with this decision.
So ordered.
__________________ Sara Holmes Wilson Administrative Law Judge
___________________ Carolynn N. Fischel Administrative Law Judge
___________________ Frederick E. Levine Administrative Law Judge
FILED: March 30, 1998