Summary
rejecting self insurer's "gap" argument where judge relied on impartial opinion establishing causal relation and total disability in original liability claim
Summary of this case from Keefe v. M.B.T.A., NoOpinion
BOARD No. 059899-91
Filed: April 9, 1997
REVIEWING BOARD DECISION
(Judges McCarthy, Smith and Maze-Rothstein)
APPEARANCES
Nelson Gediman, Esq., for the employee
Joseph S. Buckley, Esq., for the self-insurer
An administrative judge awarded this fifty-nine year old right handed employee temporary total incapacity benefits for a rotator cuff tear to his right shoulder, which occurred as a result of an injury while working on a bus on October 31, 1991. The self-insured M.B.T.A. appeals, arguing that the judge erred by denying its motion to introduce additional medical evidence due to the inadequacy of the § 11A report, and by determining that the employee was totally incapacitated, when the § 11A examiner opined that he was partially disabled. We disagree and affirm the decision.
Mario DiRusso worked his whole life as a diesel and automotive mechanic. He had worked as a bus mechanic for the self-insurer for twenty-one years when he slipped and fell on a wet floor pulling a pry bar, injuring his neck, right shoulder, lower back and elbows. (Dec. 3-4.) He did not return to work, and commenced treatment with a chiropractor. (Dec. 4-5.) When he did not improve sufficiently under chiropractic care, the employee saw orthopedic surgeons, who respectively recommended surgery and treatment with cortisone shots and physical therapy. The employee opted for the latter with only limited and temporary results. Meanwhile, his right shoulder pain became increasingly intractable. (Dec. 5.) As of the time of the hearing, in February 1993, the employee suffered from constant right shoulder pain, along with pain in his back, neck and right hand. (Dec. 5-6.)
The employee's claim for workers' compensation benefits was denied by the self-insurer. (Dec. 1.) As a result of a § 10A conference held on September 10, 1992, an order of payment of § 35 partial incapacity benefits issued. Both parties appealed to a hearing de novo.
Following a § 11A medical examination, the impartial physician opined that the employee suffered from a partial tear of the right rotator cuff, degenerative tendonitis of the rotator cuff and impingement syndrome of the right shoulder. He opined that these diagnoses were causally related to the October 31, 1991 industrial injury. The doctor further opined that the employee was temporarily and partially disabled, and recommended that the employee have the surgery which he was planning to have at that point. (Dec. 7.)
As to the degree of disability, the doctor responded negatively to the self-insurer's hypothetical question, whether the employee could perform an offered sedentary data entry job. The doctor explained that the offered position, along with the other light duty positions suggested, such as money collector, was beyond the employee's capacity because he lacked strength and motion in his right dominant hand, and could lift no more than ten pounds with that hand. (Dec. 7-8.)
The judge concluded that the employee suffered an industrial injury on October 31, 1991, and that his present pain and disability were causally related to that incident. (Dec. 9.) The judge adopted the opinion of the impartial physician in so finding, but with the provision that the doctor seemed to mean by "partially and temporarily disabled" that the employee "was continuing to treat and therefore he had not reached a medical end result from which his period of disability could accurately be assessed." (Dep. p. 23; Dec. 8.) As a result, the judge concluded that the employee was temporarily and totally incapacitated, from the date of injury and continuing. (Dec. 10.) The self-insurer appeals to the reviewing board.
The self-insurer contends that the judge's order of § 34 temporary total incapacity benefits was arbitrary and capricious, because the § 11A examiner opined that the employee was partially disabled. It argues that the judge made no findings as to why § 35 partial incapacity benefits were not ordered instead. We are not at all persuaded by the self-insurer's contentions.
Extent of incapacity to work is usually a question of fact.Fowler v. N.E. Cartage Corp., 9 Mass. Workers' Comp. Rep. 463, 467 (1995); Barry's Case, 235 Mass. 408, 410 (1920). It is axiomatic that the concept of "`incapacity to work' . . . combines two elements: physical injury or harm to the body, a medical element, and loss of earning capacity traceable to the physical injury, an economic element." Scheffler's Case, 419 Mass. 251, 256 (1994). "The determination of loss of earning capacity involves more than a medical evaluation of the employee's physical impairment. Physical handicaps have a different impact on earning capacity in different individuals."Id. In the present case, the judge made appropriate findings as to the employee's age, education, special training and work experience. (Dec. 3-4.) See Frennier's Case, 318 Mass. 635 (1945). The judge credited the employee's testimony, that, at the time of the hearing, "he could not perform any type of work, sedentary or otherwise, because of the constant pain in his right major shoulder in addition to the pain in his back, neck and right hand." (Dec. 5-6, 9.) See Anderson v. Anderson Motor Lines, Inc., 4 Mass. Workers' Comp Rep. 65, 66-67 (1990). The judge made detailed findings on the § 11A examiner's opinions regarding the employee's ability to perform particular jobs. The doctor's opinion was that the employee lacked the strength and range of motion in his right hand necessary to perform any job that would require repetitive use of that dominant hand, or lifting over ten pounds. (Dec. 7-8.) The judge noted that the § 11A examiner thereby disqualified all of the jobs offered or hypothetically suggested by the self-insured employer. (Dec. 8.) As such the judge concluded:
It became apparent in the deposition that Dr. Kermond's meaning of "temporarily and partially disabled" meant that the [employee] was continuing to treat and therefore he had not reached a medical end result from which his period of disability could accurately be assessed (Dep. p. 23.)
(Dec. 8.)
"[W]e think that the [judge's] characterization of Dr. [Kermond's] opinion on partial disability was a reasonable interpretation of his entire testimony." Mulcahey's Case, 26 Mass. App. Ct. 1, 4 (1988). The judge was entitled to use her own judgment and knowledge in determining the factual question of incapacity, with a view toward making "a realistic appraisal of the medical effect of a physical injury on the individual claimant[,]" Scheffler. supra, by combining the lay testimony regarding vocational factors with the doctor's medical opinions. See Mulcahey's Case, supra at 3; Frennier's Case, supra at 639 (employee's inability to use his hands without severe pain "prevented him from performing remunerative work of a substantial and not merely trifling character.") As we stated in Fowler v. N.E. Cartage Corp., 9 Mass. Workers' Comp. Rep. 463 (1995):
In the case at bar, the judge made careful and thoughtful findings on the employee's vocational picture before reaching her incapacity appraisal. Reason and common sense indicated to the judge that when the employee's work limitations were incorporated with his partial medical disability, efforts at gainful employment would have trifling results. Her finding of § 34 temporary total incapacity was well within her discretion.
Id. at 467.
As to the self-insurer's argument that the judge erred by denying its motion to introduce additional medical evidence based on the "gap" period between the date of injury (October 31, 1991), and the impartial examination (May 1, 1993), we affirm the decision. The self-insurer's citation to George v. Chelsea Housing Authority, 10 Mass. Workers' Comp. Rep. 22 (1996), is inapposite. We award employee counsel a fee of $1,000.00 under G.L.c. 152, § 13A(6).
So ordered. _________________________________ William A. McCarthy Administrative Law Judge
_________________________________ Susan Maze-Rothstein Administrative Law Judge
_________________________________ Susan E.K. Smith Administrative Law Judge