Opinion
BOARD No. 04733191
Filed: December 31, 1998
REVIEWING BOARD DECISION
(Judges Levine, Wilson and Fischel)
Judge Fischel participated in panel discussions, but no longer serves as a member of the Reviewing Board.
APPEARANCES
Michael M. Kaplan, Esq., for the employee.
Thomas M. Franco, Esq., for the insurer at hearing.
David T. Donnelly, Esq., for the insurer on brief.
The employee appeals from a decision in which an administrative judge denied his claim for benefits for permanent and total incapacity under § 34A and reduced his weekly benefits for total incapacity under § 34 to partial incapacity benefits under § 35, assigning an earning capacity of $206.00 per week. We agree in part with the employee's contentions of error and recommit the case for further findings consistent with this opinion.
The employee is a native of Portugal, where he completed three years of school and worked as a carpenter. He was fifty-three years old at the time of the hearing. He has resided in the United States since 1967, and has worked here as a meat cutter and packer, dishwasher, cleaner and supervisor. (Dec. II, 5.)
"Decision I" refers to the hearing decision filed March 2, 1994. "Decision II" refers to the hearing decision filed October 28, 1996, which is the subject of this appeal.
On August 29, 1991, as he lifted a carpet shampooing machine at work, the employee injured his right shoulder. He was diagnosed with a rotator cuff tear and the injury was accepted by the insurer. (Dec. II, 2, 6.) Although surgery was initially recommended, the employee chose not to undergo that treatment. In a decision issued on March 2, 1994, a former administrative judge determined that the employee's refusal of surgery was reasonable. (Dec. I, 5-6, 8; Dec. II, 6.) The insurer thereafter brought a complaint to discontinue weekly benefits, to which the employee joined his claim for § 34A permanent and total incapacity benefits. Following a § 10A conference, the judge denied both parties' claims, and both parties appealed to a hearing de novo. (Dec. II, 1-2.)
On April 2, 1996, the employee was examined pursuant to the provisions of § 11A(2) by an impartial physician whose diagnosis was a right shoulder, rotator cuff tear. He opined that the employee suffered from a permanent functional impairment of his right upper extremity of 20%, equivalent to about 12% of the whole person, all causally related to the 1991 industrial accident. The impartial physician stated that the employee's disability was partial, and that he had a capacity to perform light sedentary duties, with restrictions on any elevation of his right arm above waist level. At his deposition, the doctor modified his opinion as to the employee's work restrictions, stating he was capable of light duty. The employee filed a motion for additional medical evidence, which the judge denied. The judge adopted the impartial physician's opinion in total. (Dec. II, 7-8.)
In his decision, the judge found that the employee had unreasonably refused to have surgery to repair the rotator cuff. (Dec. II, 10.) He also concluded that the employee had a greater ability to communicate in English than he admitted. The judge cited the testimony of the impartial doctor that the employee was able to communicate with him in English at his examination, as well as his own observation at the hearing that the employee answered in English before the question was translated into Portuguese. (Dec. II, 11.) The judge found the employee not credible both with regard to his ability to communicate in English and the extent of his incapacity. His credibility determination on extent of incapacity was based in part on the employee's "unreasonable decision to not undergo a low-risk surgical procedure. . . ." (Dec. II, 10.) Without indicating what the testimony of the vocational expert was, the judge stated that he did not find it convincing. (Dec. II, 12.) Instead, he found that the employee could work in a variety of light duty positions such as store clerk, parking lot attendant or night watchman/building security person. (Dec. II, 11-12.) Stating that he was relying solely on the expert medical opinion of Dr. DeMichele and had "not factored in any consideration of the employee's unreasonable refusal to undergo the recommended medical treatment[,]" (Dec. II, 12), the judge assigned the employee an earning capacity of $5.15 per hour or $206.00 per week. (Dec. II, 11-12.)
The employee's appeal asserts several errors in the assignment of an earning capacity. First, the employee claims that the judge erred in basing his determination that the employee could speak better English than he claimed on his own observations and mischaracterizations of statements by the impartial physician. We do not agree.
Although the judge was incomplete in describing the impartial physician's testimony regarding his ability to communicate in English with the employee, (Dec. II, 11) the judge also made his own observations that the employee was able to answer in English before the questions were translated into Portuguese. (Dec. II, 11.) See Commonwealth v.DeMinico, 408 Mass. 230, 236-237 (1990) (affirming judge's determination of defendant's competency to stand trial based largely on judge's own courtroom observations, even in the face of contrary expert opinion); Commonwealth v.L'Abbe, 421 Mass. 262, 267 (1995) (court affirmed judge's determination of competency where judge's findings included her observation of defendant consulting with his attorney and making observations of prospective jurors). Cf.Mastrangelo v. Ametek Aerospace, 7 Mass. Workers' Comp. Rep. 184, 188 (1993) (reviewing board in dicta suggests that judge's observations be put on the record). We find no error.
The impartial physician testified that he communicated with the employee partly in English and partly with the assistance of an interpreter. The physician also apparently understood the employee when he spoke Portuguese, as the physician is a native of Italy and was exposed to many words derived from Latin. (Dep. 38-39; 86-87.)
We also do not agree with the employee's contention that the judge erred because he failed to specify his reasons for rejecting the deposition testimony of the employee's vocational expert. The judge simply stated that he did not find that testimony to be convincing. (Dec. II, 12.) Testimony by a vocational expert does not stand in the same position as testimony by a medical expert. When a medical question to be determined is beyond the common knowledge and experience of the ordinary layperson, proof must depend upon expert testimony; and such medical testimony, when it is uncontradicted, must be accepted by the judge, Galloway's Case, 354 Mass. 427, 431 (1968), unless he gives adequate reasons for rejection. See Niemczyk v. Krohnite Electric Assembly, 3 Mass. Workers' Comp. Rep. 224, 227 (1989); Yates v. ASCAP, 6 Mass. Workers' Comp. Rep. 97, 103 (1992). Medical testimony is usually needed to establish a causal connection between work and a diagnosed medical condition and between disability and an industrial injury. Ata v. KGR, Inc., 10 Mass. Workers' Comp. Rep. 56, 57 (1996), citing Casey's Case, 348 Mass. 572, 574-575 (1965). Cf. L. Locke, Workmen's Compensation § 522 (2d ed. 1981). In contrast, earning capacity is not generally considered to be a subject that requires expert testimony. O'Reilly's Case, 265 Mass. 456, 458 (1929). "[I]n the absence of testimony as to the earning capacity of the employee, the [administrative judges] are entitled to use their own judgment and knowledge in determining that question." Id. But even in the presence of expert testimony on the subject, judges do not lose their expertise. The judge here did consider the expert's testimony, but found it unconvincing. That was sufficient. See Petition of Dept. of Pub. Welfare to Dispense with Consent to Adoption, 376 Mass. 252, 269 (1978) (evidence is not binding on the judge simply because it is offered by an expert); Charrier v. Charrier, 416 Mass. 105, 112 (1993) (judge is not bound to accept the opinion of an expert witness even if it is uncontradicted).
We do agree in part with the employee's third argument regarding the adminstrative judge's basis for and use of his finding that the employee unreasonably refused surgery. Although the employee contends that the doctrine of issue preclusion bars all consideration of the reasonableness of the employee's refusal to have surgery, we conclude the judge was correct insofar as he determined that the previous decision was res judicata on the issue of the refusal of surgery only for the period of time covered by that earlier decision, which we take to be through the filing date on March 2, 1994. (Dec. II, 8.)
The doctrine of res judicata is sometimes said to encompass the doctrines of both claim preclusion and issue preclusion. Heacock v. Heacock, 402 Mass. 21, 23 n. 2 (1988). Traditionally, however, issue preclusion is referred to as collateral estoppel. Id. That doctrine "prevents relitigation of an issue determined in an earlier action where the same issue arises in a later action, based on a different claim, between the same parties or their privies." Id. Factors supporting issue preclusion are whether (1) the parties had the opportunity to be fully heard; (2) the judge's decision is supported by a reasoned opinion; and (3) the earlier opinion was subject to review or was in fact reviewed. Heredia v.Simmons Co., 10 Mass. Workers' Comp. Rep. 490, 492 (1996), citingTausevich v. Board of Appeals of Stoughton, 402 Mass. 146, 148-149 (1988). The doctrine of issue preclusion applies to workers' compensation cases. Heredia, supra at 492, citing Martin v. Ring, 401 Mass. 59, 61 (1987). In the instant case, all three criteria were met. A "primary issue" of the first hearing was whether the employee's refusal to have surgery was reasonable. (Dec. I, 4.) The first judge found, based on the testimony of the impartial physician, that rotator cuff repair was major surgery, that the primary benefit of such surgery is relief of pain, and that, in many cases, the patient is not returned to full functional capacity and cannot return to a lifting occupation. On that foundation, she found the employee's refusal to have the surgery was not unreasonable. (Dec. I, 5-6.) No appeal was taken from the first decision and its conclusions are final as to the matters decided therein. Leveille v. AT T Communications, 9 Mass. Workers' Comp. Rep. 508, 509 (1995), citing Hummer's Case, 317 Mass. 617, 621 (1945).
Notwithstanding the fact that the previous judge found that the employee's refusal to have surgery was not unreasonable as of March 2, 1994, consideration of that issue after that date is not barred. Just as a new claim or complaint on present incapacity or causal relationship between the original injury and the present incapacity represents a new and different issue from that of original liability and, as such, is not barred from adjudication by the prior judgment, Burrill v. Litton Industries, 11 Mass. Workers' Comp. Rep. 77, 79 (1997), so too the reasonableness of an employee's current refusal to undergo surgery represents a new and different issue from the reasonableness of his refusal of surgery prior to March 2, 1994.
In the instant case, however, the judge based his conclusion that the employee unreasonably refused to have surgery on facts not in evidence. "`Factual findings will not be reversed unless wholly lacking in evidentiary support or otherwise tainted by errors of law.'" Ottani v. Ottani Tree Service, 9 Mass. Workers' Comp. Rep. 633, 637 (1995), quoting Phillips v.Armstrong World Industries, 5 Mass. Workers Comp. Rep. 383, 384 (1991). A decision is arbitrary and capricious, however, where crucial and material findings are made without support in the evidence. McCarty v. Wilkinson Co., 11 Mass. Workers' Comp. Rep. 285, 288 (1997); Whalen v. Resource Management, 9 Mass. Workers' Comp. Rep. 689, 691 (1995). Not only was no evidence presented that surgery was recommended after March 2, 1994, but also there was ample evidence to the contrary. The employee testified that he had not discussed surgery with either of his two physicians since 1994 and presented no evidence as to what, if anything, his doctors recommended after March 2, 1994. (August 6, 1996 Tr. 48, 51.) The sole medical evidence was the report and deposition testimony of the impartial physician, Dr. DeMichele, who stated that he did not recommend surgery to Mr. Coelho, as that was not his role. (Dep. 20, 92.) When asked whether surgery today would be helpful, he said that it probably would not be because the employee was fearful and not well-motivated. (Dep. 44, 45.) Dr. DeMichele opined that surgerymight result in some improvement in the employee's pain level, but his range of motion might or might not improve. (Dep. 93.)
This testimony notwithstanding, the judge found that Mr. Coelho was a good candidate for surgical repair that would at least ease his complaints of disabling pain and could possibly restore his capacity to resume his former occupation. He further found that rotator cuff repair is a commonplace surgical procedure usually done on a day surgical basis with no unusual level of risk associated with it. (Dec. II, 10.) Dr. DeMichele, however, did not opine that Mr. Coelho was a good surgical candidate or that surgery might enable the employee to return to his former occupation. Nor did he characterize rotator cuff repair as a commonplace procedure involving no unusual level of risk. While a judge is free to adopt all, part or none of an expert's opinion, he may not mischaracterize it. See Yates v. ASCAP, 11 Mass. Workers' Comp. Rep. 447, 452 (1997); Ata, supra at 57. The judge's findings here fatally mischaracterize the impartial physician's opinion. Based on these findings, as well as on his finding that the employee's reasons for not having the surgery were not persuasive, the administrative judge found that the employee had unreasonably refused surgery. The evidence simply does not support such a finding, and it cannot stand.
This finding of unreasonable refusal to have surgery is not harmless error because the judge relied on it in making further crucial and material determinations. See Whalen,supra at 691. Despite his disclaimer that "[i]n making this determination [on earning capacity], I am relying solely on the expert medical opinion of Dr. DeMichele that he can perform light duty work at present and have not factored in any consideration of the employee's unreasonable refusal to undergo the recommended medical treatment[,]" (Dec. II, 12), the judge did indeed rely on his finding that the employee unreasonably refused surgery in making credibility determinations on extent of incapacity, which in turn drove his findings on earning capacity. Elsewhere in the decision, the judge stated: "Since the employee himself alleges a change of medical condition from his 1994 status, the history of the employee's intervening medical treatment — or lack thereof — is inseparable from a fair and accurate Hearing on the merits of his claim." (Dec. II, 9.) And after writing nearly two and one-half pages that discuss the unreasonableness of the employee's refusal to have surgery, (Dec. II, 8-11), the judge stated:
I find Mr. Coelho is not credible in regard to the extent of his incapacity or his ability to communicate adequately in the English language. Taking into account Mr. Coelho's failure to even continue with basic home exercises which would improve his range of shoulder motion, as well as his unreasonable decision to not undergo a low-risk surgical procedure, I do not credit his testimony that he is unable to sleep nights or perform basic activities of personal hygiene without assistance. It stretches credulity to believe that any individual would suffer such distress and disruption of daily life for over five years (as Mr. Coelho alleges) in the face of a routine procedure which most likely would provide significant relief and improvement.
(Dec. II, 10-11, emphasis added.) Thus, it is obvious that the judge's erroneous finding that the employee unreasonably refused surgery influenced his determinations of the employee's credibility regarding the extent of his incapacity and, ultimately, earning capacity. A finding with no evidentiary support cannot be factored into a credibility analysis that is a critical element of findings on extent of the employee's incapacity or earning capacity. The decision is arbitrary and capricious and cannot stand. See Yates, supra at 454-455 (judge's credibility finding was arbitrary and capricious because there was nothing in the record to support it).
Accordingly, we vacate the judge's decision on credibility, extent of incapacity and earning capacity and recommit the case to him for further findings on those issues, without consideration of the unsupported finding of unreasonable refusal to have surgery. In light of the passage of time, and in the interest of justice, the judge may take further evidence as he deems necessary.
So ordered.
________________________ Sara Holmes Wilson Administrative Law Judge
________________________ Frederick E. Levine Administrative Law Judge
FILED: December 31, 1998