Opinion
BOARD No. 51874-90
Filed: September 26, 1997
REVIEWING BOARD DECISION
(Judge Fischel, Levine and Wilson)
APPEARANCES
Cynthia A. Spinola, Esq., for the employee.
Kenneth P. Ferris, Esq., for the employee on review.
Thomas P. Schuler, Esq., for the insurer.
The employee appeals from an administrative judge's decision denying his claim for permanent and total compensation pursuant to G.L.c. 152, § 34A. He alleges error in the admission of hearsay evidence as to average weekly wage, and INADEQUACY in the judge's findings as to extent of earning capacity. We find merit in the employee's contentions, and remand for further findings consistent with this opinion.
The insurer accepted liability and paid total incapacity compensation for an August 7, 1990 injury sustained when the employee backed a truck cab into a stationary trailer, injuring his back and right leg. (Dec. 4, 8.) On June 11, 1991 the employee underwent surgery for a torn medial meniscus in his right knee. (Dec. 4, Tr. 4-5.)
In 1992 a prior administrative judge issued a conference order that the insurer was liable for the June 11, 1991 right knee surgery. (Tr. 4.) The insurer filed an appeal from that order, but subsequently withdrew it. (Tr. 5.)
On March 11, 1994, the employee filed a claim for § 34A compensation and §§ 13 and 30 benefits for additional right knee surgery performed on December 8, 1993. The insurer's complaint for modification or discontinuance was joined at a July 6, 1994 conference. (Dec. 1.) The judge denied both the claim and the complaint, and the parties cross appealed for a hearing de novo. Id.
Prior to hearing, the judge deemed the case to be complex and allowed additional medical evidence pursuant to § 11A(2). (Dec. 3.) In his April 11, 1995 decision, the judge adopted the opinion of Dr. John Bouillon, the employee's expert, that the August 7, 1990 back injury resulted in radiculopathy of the right leg, causing buckling and giving way and eventual damage to the right knee. (Dec. 8.) The judge found the employee experienced pain when walking around the block. (Dec. 5.) He found the right knee surgery on December 8, 1993 was causally related to the industrial injury and was reasonable and necessary. (Dec. 8.) He denied the § 34A claim, but ordered the insurer to pay continuing § 35 partial incapacity compensation based upon an assigned earning capacity of $200.00, and the average weekly wage of $326.21 reflected in the insurer's wage statement. (Dec. 7-9.) We now turn to the issues raised by the employee.
General Laws c. 152, § 11A(2) provides, in pertinent part:
. . . that the administrative judge may, on his own initiative or upon a motion of a party, authorize the submission of additional medical testimony when such judge finds that said testimony is required due to the complexity of the medical issues involved or the inadequacy of the report submitted by the impartial physician.
THE WAGE STATEMENT
The employee maintained that his average weekly wage before the August 7, 1990 industrial accident was $370.87. (Dec. 7.) The insurer offered a wage statement "signed by someone from U.S. Concrete," which the judge allowed into evidence over the objection of the employee, who contended that the document was hearsay, and without a foundation or authentication. (Dec. 7; Insurer's Exhibit 1; Tr. 62-65.) The judge adopted the insurer's wage statement, and found the employee's average weekly wage was $326.21. (Dec. 7-8.) We agree with the employee that it was error to admit this exhibit.
The admissibility of evidence in workers' compensation hearings is determined by the rules of evidence applied by the courts of the Commonwealth. Haley's Case, 356 Mass. 678, 681-682 (1970); 452 Code Mass. Rep. 1.11 (5). Hearsay is generally inadmissible in evidence unless there is an exception thereto.Wingate v. Emery Air Freight Corp., 396 Mass. 402, 405-406 (1982).
The business records statute, G.L.c. 233, § 78, provides an exception to the hearsay rule so as to allow business records into evidence to prove the truth of the facts recorded. As a prerequisite to admissibility, the court must make preliminary findings that the proffered record: (1) was made in good faith, (2) in the regular course of business, (3) before the beginning of the proceeding, and (4) that it was the usual course of business to make the record at the time of such act or within a reasonable time thereafter. DiMarzo v. American Mut. Ins. Co., 389 Mass. 85, 105-106 (1983); see Commonwealth v. Trapp, 396 Mass. 202, 208 (1985).
Compliance with these requirements creates a presumption of reliability attaching to the contents of the records because the records are routinely made by those charged with the responsibility of making accurate entries and are relied on in the course of business. Wingate v. Emery Air Freight Corp., 385 Mass. 402, 405-406 (1982). At trial, the proponent of the evidence must establish that it was the business duty of the preparer of the record to make the memorandum or entry as a matter of business duty or business routine. Id. at 406. Only then does the record have the necessary indicia of reliability so as to allow it to be substituted for the direct testimony of a witness with personal knowledge. Id. at 407.
In this case no witness appeared to authenticate the wage statement. As an initial requirement, documentary evidence must be identified and authenticated by a witness or by official certification. See Commonwealth v. Monahan, 349 Mass. 139, 170 (1965). Furthermore, the insurer made no showing that the wage statement satisfied the admissibility requirements of G.L.c. 233, § 78. Indeed, the identity of the preparer was unknown. (Tr. 64-66) See Commonwealth v. Hussey, 14 Mass. App. Ct. 1015, 1016 (1982); DiCenso v. Winchester Concrete Carpentry, 7 Mass. Workers' Company. Rep. 238, 240 (1993).
There was thus inadequate foundation to give the wage statement the indicia of reliability conferred by G.L.c. 233, § 78; see Wingate, supra at 408-410 (first report of injury in workers' compensation case was inadmissible hearsay). The document objected to was hearsay and should not have been admitted and could not be relied upon. DiCenso v. Winchester Concrete Carpentry, 7 Mass. Workers' Comp. Rep. at 240.
Here the judge erroneously relied upon the hearsay exhibit and based his findings as to average weekly wage on it. (Dec. 7.) The error cannot be regarded as harmless, as the judge specifically relied on the inadmissible hearsay to determine the employee's average weekly wage. We reverse the judge's findings on the issue of average weekly wage, and recommit for further findings based upon competent evidence. EARNING CAPACITY
We note that an employee is competent to testify as to his average weekly wage. See Cahoon v. General Welding, Inc., 10 Mass. Workers' Comp. Rep. 235, 238 (1996); Radke v. Eastham Foundations, 7 Mass. Worker's Comp. Rep. 197, 204 (1993).
The usual rule is that in the absence of testimony as to the earning capacity of an employee, a judge is entitled to use his own judgment and knowledge in determining the question.O'Reilly's Case, 265 Mass. 456, 458 (1929); Mulcahey's Case, 26 Mass. App. Ct. 1, 3 (1988). However, the judge's conclusions must be adequately supported by sufficiently definite and specific subsidiary findings so that the reviewing board can properly perform its appellate function. Crawford's Case, 340 Mass. 719, 720-721 (1960); Ballard's Case, 13 Mass. App. Ct. 1068, 1069 (1982).
Moreover, a judge's findings on earning capacity must reflect an analysis of the effect of the medical limitations on the vocational profile after a reasoned consideration of the employee's age, education, training, work experience, mental capacity and any other factors relevant to a determination whether the employee has an ability to perform remunerative work of a substantial and non-trifling nature on the open labor market.Scheffler's Case, 419 Mass. 251, 256-257 (1994).
The judge found that the August 7, 1990 back injury resulted in a radiculopathy of the right leg which resulted in buckling and giving way and eventual damage to the right knee. (Dec. 8.) He found that the employee experienced pain when walking around the block. (Dec. 5.) The employee argues that these findings imply limited walking capacity, inconsistent with the job duties of a security guard. He maintains that the judge linked his earning capacity to his past capacity to walk as a security guard, without finding that the employee could presently do such work. (Employee's Brief, at 18-19.)
The employee also argues that the judge failed to determine how the employee's educational background impacted on his earning capacity. The employee testified that he attended school only through the second grade. (Tr. 8.) He testified that he had difficulty with reading, writing, and spelling, and was unable to subtract, multiply or divide. (Employee's Brief, at 16-17; Tr. 8-11.) He argues that he is functionally illiterate, and that in view of his disability from his usual heavy manual labor, reentry into the work force is daunting. See (Tr. 8-11; Employee's Brief at 16-17.); see Cruz v. Corporate Design Co., 9 Mass. Workers' Comp. Rep. 618, 621 (1995).
Finally, the employee argues that the judge's findings were inconsistent, since the judge on the one hand found the employee capable of sedentary work, and on the other, capable of light work. (Employee's Brief at 13, 19-20.)
We see merit in a number of the employee's arguments. First, a capacity for light duty work is not identical to a capacity limited to sedentary work. See Howe v. Rocky Meadow Cranberry, 9 Mass. Workers' Comp. Rep. 704, 706 n. 4 (1995). There are significant differences with respect to sedentary and light work that indicate different physical capacities. See Howe, supra at 706. The judge made inconsistent findings regarding the employee's sedentary versus light duty capabilities. (Dec. 8.) He adopted the opinion of Dr. Bouillon that the back injury resulted in recurrent right knee buckling that damaged the knee, and that the employee had a capacity for sedentary work allowing frequent changes of position. (Dec. 8.) The judge then, without reference to the knee, found the employee "capable of performing light duty work that does not require a lot of strain on his back". (Dec. 8.) In view of the judge's findings as to causal relationship of the knee condition, assessment of earning capacity should include consideration of any work related residual knee impairments. On remand, the judge should clarify his findings in this regard.
Light work includes lifting heavier weights and more sustained walking and standing than are required to perform sedentary work. Howe, supra at 706; see also the revised handbooks for Analyzing Jobs, U.S. Dept. of Labor, Employment Training Administration, at 12-2 (1991).
The finding appears to paraphrase the opinion of Dr. White, who opined that the employee would be "able to do light work that didn't require a lot of strain on his back." (White Dep. at 29.) Dr. White's work capacity assessment appears to be based on the employee's back impairments from the injury, without regard for any knee condition.
Dr. White did not consider the right knee problem directly related to the work incident in August 1990, but conceded that the leg pain the employee described from his back injury could indirectly cause the further difficulties that led to knee surgery. Id. at 23-24. He opined that recurrent episodes of knee buckling aggravated the employee's preexisting chondromalacia.Id. at 83.
Second, we note that while the judge recited that he considered the employee's age, education and experience, he made no findings as to the employee's educational background and capabilities. On remand, the judge should make findings as to the employee's vocational capacities. See Scheffler's Case, 429 Mass. 256, 260-261 (1994).
There was testimony that the employee lost his job with the gas company because he was unable to deal with numbers or take telephone messages and write them down. (Tr. 10-11.)
Finally, the judge's reference to the employee's past work as a security guard in his discussion of present earning capacity raises the question of whether he was finding the employee presently capable of such work, and, if so, whether he believed the employee capable of such work despite his findings as to the buckling of the employee's knee and pain upon walking. (Dec. 4, 5, 8.) On remand the judge should clarify his findings in this regard.
The judge found that the employee's pre-injury duties as a security guard included traveling by car to confirm that guards were present at work sites, filling in for security staff whenever they failed to appear for a work shift, and as a guard, periodically walking around a building or garage. (Dec. 4.)
As we can only speculate as to the reasons for the judge's general conclusions, we remand for further findings. See Cruz v. Corporate Design Co., supra at 621; Crowley v. Salem Hosp., 8 Mass. Workers' Comp. Rep. 374, 375 (1994).
CONCLUSION
In summary, we reverse the judge's average weekly wage determination and remand for further findings having a proper evidentiary foundation. We further remand for adequate findings on the employee's earning capacity, free of inconsistencies and with a consideration of the factors set forth in Scheffler's Case, 419 Mass. 251, 256 (1994). In his discretion, the judge may receive additional evidence on these issues. So ordered.
________________________ Carolynn N. Fischel Administrative Law Judge
________________________ Frederick E. Levine Administrative Law Judge
________________________ Sara Holmes Wilson Administrative Law Judge
Filed: September 26, 1997