Opinion
Board Number: 070620889
Filed: January 24, 1995
REVIEWING BOARD:
Judges Fischel, McCarthy, and Wilson.
APPEARANCES:
Stephen J. Corcoran, Esq., for the employee.
John C. White, Esq., for the insurer, with Matthew Connon, Esq., on brief.
The employee, who sustained injuries to his back, ribs, knee, left kidney and spleen on November 18, 1989 when a tree struck him as he knelt on a cart, appeals from the decision of the administrative judge authorizing the insurer to discontinue benefits for temporary total incapacity.
The employee, the owner of the greenhouse where the incident occurred, began receiving § 34 benefits, but the insurer subsequently sought to discontinue or modify payments. After its request was denied, the insurer appealed for a de novo hearing, at which it raised the issues of causal relation and extent of disability. After hearing on July 15, 1991, the judge filed a decision on August 19, 1992, in which he found the employee's diagnosed lumbar strain and spondylolisthesis causally related to the work incident, but found no causal relation between the employee's other medical conditions and the incident. (Dec. 11.) While crediting the employee's testimony of "continuous pain" (Dec. 10), the judge further found that the employee had performed "substantive work [at the greenhouse] since 1990" (Dec. 11). The judge therefore found the employee only partially incapacitated and capable of performing substantial remunerative work. The judge ordered the insurer to pay § 35 benefits, and assigned the employee an earning capacity of $380.00 per week as of March 10, 1992, the approximate date on which Dr. Doppelt opined the employee would possibly be able to return to work. (Dec. 8, 11, 13.)
In his appeal to the reviewing board, the employee argues that the administrative judge erred in finding the employee capable of work of a substantial rather than trifling nature and assigning him an earning capacity as of March 10, 1992. The employee also disputes the judge's finding that only the employee's back injury, and not other medical conditions such as his knee condition, was causally related to the November 18, 1989 work incident.
The administrative judge's subsidiary findings on the issue of the extent of the employee's incapacity are inconsistent. The judge found the employee remained temporarily totally incapacitated as of the date of hearing, and credited his testimony that "he has continuous pain that prevents him from standing or sitting for long periods." (Dec. 10.) The judge also found that the employee discontinued the landscaping part of his business in November 1989, which resulted in financial hardship to the business and necessitated loans. (Dec. 10.) The employee's testimony about his post-injury activities and abilities is not accurately characterized by the judge, who made the following findings subsidiary findings regarding the employee's work duties:
By virtue of not cutting off § 34 benefits as of that date.
The employee testified that the landscaping aspect of the business had been 25% of the business. (Tr. 22.)
The employee's characterization of his "work" was substantially different from the findings made by the judge. He testified that he visited the greenhouse, 200 feet from his house, a few times each day "out of boredom" (Tr. 15), and would have a cup of coffee (Tr. 15), write the schedule in 10 or 15 minutes (Tr. 16), and answer a customer's question if directed at him while he was "passing through" (Tr. 16). He was not involved with the payroll, as the bookkeeper handled those duties (Tr. 16), did not do any purchasing for the company (Tr. 17), and did not wait on customers (Tr. 23). He characterized the work he was doing for the company as "[n]othing," stating, "the amount of work I'm doing isn't valuable. I wouldn't pay anybody to do that." (Tr. 22.) He also testified that the medication he was taking made him "totally uncoordinated." (Tr. 27.) When asked whether he could work at a cash register, he responded that he could not because it would involve retrieving and carrying items for customers as well as ringing up purchases. (Tr. 27.)
I credit the Employee's testimony that he currently performs his job, albeit at limited duties. Presently, he reports to the greenhouse two to three times per day, where he makes out work schedules and answers inquiries. In addition, he occasionally carries items to [customers'] automobiles. I also credit the Employee's testimony that he is capable of waiting on customers and capable of making onsite estimates for landscaping jobs. According to testimony, the Employee's wife manages the business, with his consultation and advice. (Dec. 9.)
The administrative judge's findings are not supported by the evidence, and are therefore arbitrary. See Kilcullen v. San Vel Concrete Corp., 4 Mass. Workers' Comp. Rep. 182, 184 (1990).
The judge adopted a medical expert's speculation on the issue of when total disability ceased and partial disability began. In his May 10, 1991 medical report Dr. Doppelt felt the employee was totally disabled (Dec. 11) and prefaced his estimate of recovery time with the proviso that recovery would depend on how the employee's conservative treatment and weight reduction plan progressed, and that "[a]t this point in time it is impossible for me to predict how well he will do on his present conservative regimen." (Employee Exhibit #2.) Dr. Doppelt also stated that back and knee surgery might be required. The doctor did not state with reasonable medical certainty when and if the employee's total incapacity will decrease or cease.
Based on Dr. Doppelt's May 10, 1991, opinion the judge found that the employee "would not be able to return to work for nine months or possibly longer." (Dec. 11.) and the judge then terminated the employee's total incapacity benefits on March 10, 1992, which the judge calculated to be "nine (9) months after Dr. Doppelt's report." (Dec. 13). In relying on Dr. Doppelt's opinion, the judge was not at liberty to adopt those portions that were speculative, equivocal and lacking necessary probability. See Hachadourian's Case, 340 Mass. 81, 86 (1959); Ralph's Case, 331 Mass. 86, 90 (1954); Ross v. New England Telephone, 7 Mass. Workers' Comp. Rep. 332, 335 (1993). The judge's cutoff date for § 34 benefits is based on nothing more than speculation. A decision based on unsubstantiated and speculative evidence is arbitrary and capricious and must be reversed. King's Case, 352 Mass. 488 (1967).
It appears to be ten months, rather than nine.
There are some additional problems with the decision. The judge adopted, "in part," the opinions of Dr. Doppelt and Dr. Dorgan, without sufficent indication as to which parts of these divergent medical opinions he adopted. The judge's findings as to what medical problems remain related to the work injury are not adequate. When this matter is heard in further proceedings the administrative judge assigned to hear this case should make specific findings as to which of the employee's medical problems bear a causal relationship to the accepted industrial injury of November 18, 1989, and should make findings as to the existence and extent of any incapacity for work resulting from medical problems related to the work injury.
Accordingly, the decision of the judge is vacated. The insurer had been paying § 34 benefits in this accepted case prior to the issuance of the judge's decision. The insurer thus should resume payment of § 34 benefits, but in view of the passage of time and considerations of equity, and to avoid creating a retroactive overpayment, said resumption should begin effective with this decision. Since the judge who filed this decision is no longer with the department, this matter is referred to the senior judge for reassignment for hearing de novo on the insurer's request to discontinue or modify benefits, and the employee's claim for total disability compensation from March 10, 1992.
Judges McCarthy and Wilson concur.