Opinion
BOARD Nos. 074562-91, 023153-92
Filed: February 25, 1998
REVIEWING BOARD DECISION.
(Judges Levine, Wilson and Fischel).
APPEARANCES.
Kenneth P. Ferris, Esq., for the employee.
Cynthia A. Spinola, Esq., for the employee.
James F. Martin, Esq., for the insurer.
James D. Chadwell, Esq., for the insurer.
The employee appeals the decision of an administrative judge who denied his claim for benefits arising out of alleged industrial injuries occurring on August 16, 1991 and May 26, 1992. Finding error, we reverse the decision and recommit the case for further findings.
The 45 year old employee worked for the present employer from 1972 to 1992. He has a ninth grade education. His work-related physical activities included standing, pulling, bending and frequent lifting of up to 45 pounds. The employee had intermittent back problems for many years preceding the alleged incidents. The employee experienced pain in his back while mixing monaco at work on August 15, 1991. (Dec. 3.) The employee did not lose time from work, but he did do light duty work for two weeks, before returning to his regular work. He treated with a chiropractor for several months after that work incident. (Dec. 3; Tr. 20-23.) The judge credited the employee's testimony that the August 15, 1991 incident had occurred. (Dec. 5.) The employee alleged that he again experienced pain in his back while shoveling ore at work on May 26, 1992. The employee left work that day, and did not return to work before the plant closed down a week or two later. (Dec. 3) The judge did not credit the employee's testimony regarding the May 26, 1992 incident, which the judge found was unwitnessed, and which had occurred soon before the employee was to be laid off. (Dec. 3, 6.)
The judge issued a conference order denying the employee's consolidated claims for incapacity benefits stemming from the two work incidents. The employee appealed to a hearing de novo. (Dec. 1.) The employee was examined by an impartial physician appointed by the department, pursuant to G.L.c. 152, § 11A. The doctor, whose testimony was the sole medical evidence, opined that the employee's lower back problems were the result of weight-related degenerative disc disease and of a herniated lumbar disc. (Dec. 5; Statutory Ex. # 1.) The doctor further opined that the employee had a "mild to moderate partial temporary causally related disability" and restricted him from lifting more than 25 pounds, and from unlimited sitting or standing without 10 to 15 minute breaks. Id. The doctor stated at his deposition that the August 15, 1991 work incident "played some part" in the employee's present disability, albeit a "diminished" part. (Impartial Dep. 17.) The doctor also stated that, given the existence of an MRI study showing the herniated lumbar disc prior to the alleged May 26, 1992 work incident, that condition could not be attributable to that work incident. (Statutory Ex. # 1; Impartial Dep. 15.) The judge adopted what he purported to be the impartial physician's opinion "that there is not a causal relationship between the August 15, 1991 incident and any present limitation that the Employee might have." (Dec. 5.) The judge also concluded "that the Employee's testimony of the May 26, 1992 incident [was not] credible [and that] the Employee has been extremely active since leaving the employ of [the employer]." (Dec. 6.) The judge further concluded that "the Employee has been capable of working since May 26, 1992 and capable of earning the average weekly wage he earned at [the employer]. . . ." Id. The judge therefore denied and dismissed the employee's claims for benefits. Id.
On appeal, the employee contends that the judge erred (1) in finding no causal relationship between the employee's injuries of August 15, 1991 and/or May 26, 1992 and his partial disability; (2) in his earning capacity findings; (3) in adopting nearly verbatim the insurer's draft decision; (4) in failing to admit additional medical evidence; and (5) in admitting certain photographs in evidence.
We agree that the judge erred in his causal relationship findings, because he mischaracterized the opinion of the impartial physician as to the contribution of the August 15, 1991 incident to the employee's present disability. The doctor testified that the August 15, 1991 incident played a diminished, relatively minor part in the employee's medical difficulties. (Impartial Dep. 17-19.) But it did play a part. The judge's interpretation of this opinion as meaning that the doctor "diminished the possibility of a relationship between the August 15, 1991 incident and the Employee's present reported problems" is thus error. (Dec. 5, emphasis added.) Where an employee has suffered an industrial injury, a subsequent disability that is causally related to that injury is compensable so long as no independent intervening cause breaks the chain of causation.Gulczynski v. Granada Hosp. Group, 7 Mass. Workers' Comp. Rep. 151, 152 (1993). L. Locke, Workmen's Compensation § 222 (1981). In the present case, the impartial physician did opine that the effect of the alleged May 26, 1992 incident was "markedly greater" than the effect of other prior injuries. (Impartial Dep. 19.) However, the judge specifically rejected the employee's account of an injury on that date. (Dec. 6.) As there was no other contributing event — work-related or not — intervening between the August 15, 1991 industrial injury and the claimed period of disability, liability for that event must attach as a matter of law. We therefore reverse the decision insofar as it rejects causal relationship between the August 15, 1991 work injury and the employee's present disability.
The judge also found that the employee "has been capable of working since May 26, 1992 and capable of earning the average weekly wage he earned" at the employer. (Dec. 6.) The employee argues that this finding is unsupported by the subsidiary findings and is arbitrary and capricious. We agree.
The employee's average weekly wage was $432.46. (Dec. 1.) The employee has a ninth grade education and his job duties at the employer included frequent lifting of up to 40-45 pounds. (Dec. 3.) The impartial doctor restricted the employee from lifting in excess of 25 pounds and from unlimited sitting and standing, unless he had 10-15 minute breaks in between. (Statutory Ex. #1.) The 45 year old employee had been a heavy laborer at the employer for approximately 20 years. (Dec. 3.) The employee attempted to work after he left the employer. However, the two jobs he attempted do not appear within the employee's medical limitations, and the employee testified he only worked a short time at each job. (Tr. 37-39.) Other than finding that the employer worked at those jobs, the judge made no findings as to the physical demands of the jobs or the ability of the employee to do them. Furthermore, the employee's earnings at those jobs were approximately one half of his average weekly wage. (Tr. 38, 39.) "A judge cannot disregard actual post-injury earnings without explanation." Scotti v. Honeywell/Loral Infrared Imaging Sys., 11 Mass. Workers' Comp. Rep. 333, 338 (1997). See G.L.c. 152, § 35D (1).
Although in cases such as this deference is given to the judge's determination of earning capacity, Mulcahey's Case, 26 Mass. App. Ct. 1 (1988), such determination requires support by adequate subsidiary findings grounded in the evidence. Beagle v. Crown Serv. Sys., Inc., 10 Mass. Workers' Comp. Rep. 282, 284 (1996). In the circumstances described here, we are hard pressed to see how the judge concluded that the employee was capable of earning his pre-injury average weekly wage. It is appropriate to recommit the case for the judge to reassess the employee's earning capacity and to make findings thereon. SeeBeagle, supra, at 284-285, for guidance.
The judge also found that since leaving the employer, the employee successfully completed a one hundred fourteen hour classroom course in EMT training but failed the written EMT examination; he also found that the employee continued as a volunteer fire fighter, but recited that the employee is restricted to light duty. (Dec. 4.)
The judge erred when he found that the employee had received unemployment benefits from his employer as a result of the plant shut down. (Dec. 3.) There was no evidence to support this finding. This same error appears at page 3 of the insurer's proffered draft decision. We caution again against the adoption of proposed findings without independent review of them. The judge must personally analyze the case. See Lavoie v. Westfield Pub. School Sys., 7 Mass. Workers' Comp. Rep. 77, 78 (1993).
The judge also erred by admitting unauthenticated photographs. (Insurer Ex. #2.) Without the requisite foundation that the photographs were true and accurate representations of the employee, taken during the relevant time period, the photographs could not be admitted into evidence. Johnson v. National Coating Co., 7 Mass. Workers' Comp. Rep. 159, 162 (1993). Counsel for the insurer and counsel for the employee examined the employee as to whether he was depicted in sixteen photographs. Except for photograph #9, the employee denied that he was pictured in the sixteen photographs. (Tr. 53-55, 57-58.) Nevertheless, over the employee's objection, the judge admitted all the photographs into evidence. (Tr. 60-61.) Since we cannot tell whether the judge relied on the unauthenticated photographs in reaching, for example, his conclusion that the employee had been "extremely active since leaving the employ[er,]" (Dec. 6), we reverse the judge's introduction of all photographs in Insurer Ex. #2, with the exception of photograph #9.
Finally, we think that the error occasioned when the lay hearing preceded the impartial examination, see O'Brien v. Blue Cross/Blue Shield, 9 Mass. Workers' Comp. Rep. 16, 22 (1995), was harmless in this case. The employee deposed the doctor, and thereby eliminated any possible prejudice as a result of the sequence error.
We reverse the decision in part and recommit the case for further findings consistent with this opinion.
So ordered.
______________________________ Frederick E. Levine Administrative Law Judge
______________________________ Sara Holmes Wilson Administrative Law Judge
______________________________ Carolynn N. Fischel Administrative Law Judge
Filed: February 25, 1998