Opinion
BOARD No. 07044689
Filed: March 27, 1995
REVIEWING BOARD:
Judges Maze-Rothstein, Kirby and Smith.
APPEARANCES:
Scot Bratten, Esq., for the employee Elizabeth Fleming, Esq., for the Insurer.
The employee seeks relief by appeal of the decision that denied him continuing weekly compensation and terminated his medical benefits. He prays for reversal or alternatively, remand. The employee argues the judge's denial of continued § 34 total incapacity benefits and failure to address § 35 partial incapacity, despite adoption of uncontradicted medical evidence that restricted work capacity, constitutes error. We find merit in the employee's contention. That defect, compounded by others, makes the decision contrary to law. We vacate in part and affirm in part.
The employee, a 28 year old cable assembler, injured his back on December 20, 1989 when, while attempting to move his stool closer to a work station, he fell backwards onto a large wooden spool. (Dec. 4, 9.) Although he had attained a G.E.D. certificate, he had no further training. (Dec. 3.)
The employee filed a claim for G.L.c. 152, §§ 34, 13 and 30 benefits. Following a conference, an administrative judge ordered the insurer to pay medical benefits and § 34 temporary, total incapacity benefits for a closed period from January 31, 1990 to March 14, 1990. Both the employee and insurer appealed the order. The judge who adjudicated at conference retired before a hearing could be scheduled.
The insurer voluntarily paid § 34 benefits from December 20, 1989, the date of injury until January 31, 1990 pursuant to the pay without prejudice provisions of the Act. (Insurer's Brief, at 5.)
After a hearing, the decision of a different administrative judge denied the § 34 total incapacity claim from a medical examination date chosen at the conference, and ordered reasonable and necessary §§ 13 and 30 medical benefits to terminate on October 29, 1990.
We note that after a favorable conference order for a closed period of § 34 benefits, at hearing the employee claimed only continuing benefits from March 14, 1990. Rather than deny that claim, proper de novo treatment (especially given an original liability challenge) would have addressed the period of incapacity between the date of injury, February 20, 1989 and the termination date March 14, 1990. Nevertheless, we infer in finding liability the judge also found the conference award period appropriate. The concurrence disagrees and underscores ambiguous findings for support while simultaneously acknowledging the judge may have erroneously believed payments made per the conference order left only further benefits to address. Thus it appears we have more agreement than divergence on this point.
To reach this conclusion, the judge considered the medical opinions of employee's expert Dr. Victor Conforti and insurer's expert Dr. Robert Weafer. The judge specifically rejected Dr. Conforti's opinion "except for his testimony that the employee could return to work on October 29, 1990" — an examination date. (Dec. 10; Conforti Dep., at 19.) The judge noted but rejected Dr. Conforti's testimony "that the employee could not return to his former occupation but could work full time with restrictions . . . and could do no lifting whatsoever." (Dec. 7.)
The judge adopted insurer Dr. Weafer's opinion that the employee's back injury "was caused by the industrial accident of 12/20/89 . . . but that . . . the employee is able to work full time with restrictions." (Dec. 9-10.)
In a concert of medical evidence, the opposing doctors agreed the employee could only return to work with physical restrictions. The decision does not reveal why the judge found the employee could only return to restricted full time work and yet terminated all benefits. Perhaps he reasoned the partial physical disability did not result in an impaired earning capacity. See Frennier's Case, 318 Mass. 635, 639 (1949). or perhaps he believed his adjudicatory concerns began and ended exclusively with the employee's § 34 claim. That is, the judge may have believed if the employee only sought § 34 benefits and failed to meet his total incapacity burden, then the order was limited to a denial of the § 34 claim. This lack of clarity raises several issues which we address.
First, although the employee claimed solely § 34 temporary, total compensation, if on the evidence the judge perceived a § 35 partial incapacity, he was duty bound to address and make findings on the resultant earning capacity with a concomitant award of partial incapacity benefits. Once a threshold liability determination has been reached, a de novo hearing on a claim for weekly benefits, like a complaint for discontinuance, leaves the issue of the employee's extent of incapacity before the judge. See Mozetski's Case, 299 Mass. 370, 372 (1938) citing Kareski's Case, 250 Mass. 220, 224 (1924). Because health and disability are mutable conditions subject to fluctuation and sometimes spontaneous change, if the evidence suggests partial medical disability and that evidence is adopted by the judge then the question of compensation under § 35 for partial incapacity must be addressed by the judge even though only § 34 total incapacity weekly benefits have been claimed. See Mozetski's Case, 299 Mass. at 372 (changes may occur in condition of injured employees). Indeed we find that, under § 11B mandates, judges are obligated to do so. See G.L.c. 152, § 11B (decision must address all issues) and see Joppas v. Rand-Whitney Container Corp., 6 Mass. Workers' Comp. Rep. 73, 74 (1992) (where insurer was ordered to pay § 34 benefits for closed period but judge adopted expert who opined employee was partially disabled, judge must make explicit subsidiary findings on issue of partial disability). In so holding, we do not want to discourage practitioners from framing claims with precision. Conversely, to hold otherwise would undermine principles of judicial economy.
Further, where evidence of a work restriction or a partial physical disability surfaces in medical and lay testimony, before concluding an extent of incapacity determination, a judge must analyze vocational factors including age, education, training, work experience and other circumstances that may affect the employee's ability to cope with the physical effects of injury and interfere with his ability to make earnings of a substantial and not trifling nature. Scheffler's Case, 419 Mass. 251, 256 (1994); Frennier's Case, 318 Mass. at 639.
Thus, where § 34 benefits are claimed but, in the judge's appraisal the evidence is indicative of a partial physical disability with restrictions, we find the judge must address the § 35 partial incapacity issue applying the factors as set forth in Scheffler's Case and Frennier's Case, supra even where no § 35 claim has been asserted. If necessary, he may assign an earning capacity within the exercise of his own discretion. Mulcahey's Case, 26 Mass. App. Ct. 1, 3 (1988). By corollary, where § 35 partial compensation is claimed, but the evidence and requisite Frennier analysis depicts an employee totally incapacitated whose wage earning power will have trifling results, the judge must address, analyze and award § 34 compensation.
The decision suffers from other problems which alone would require recommittal. First, the judge's general findings are conclusory and he makes no identifiable subsidiary findings. The subsidiary findings recite evidence without factual determinations. They consist of recitations of lay and medical evidence. His subsidiaries address neither the nature and extent of work restrictions nor the vocational components requisite for an extent of incapacity evaluation. Recitals alone do not constitute subsidiary findings of fact adequate to support general findings and conclusions. Messersmith's Case, 340 Mass. 117, ___ (1959); Carney v. M.B.T.A., 5 Mass. Workers' Comp. Rep. 25, 26-27 (1991); see Ballard's Case, 13 Mass. App. Ct. 1068, 1069 (1982). Recitations defy appellate analysis because they cloud the key facts the judge found persuasive. Thereby, the reviewing board cannot perform its appellate function because the issues are not addressed with clarity such that we can, with reasonable certainty, determine whether correct principles of law have been applied to facts that could properly be found. Praetz v. Factory Mut. Eng'g Research, 7 Mass. Workers' Comp. Rep. 45, 47 (1993).
Next, the judge's denial of weekly benefits as of the March 14, 1990 medical examination date was legal error. While the March 14 treating physician exam date was properly lodged in the evidence, as of that date said doctor attested to continuing causally related physical disability. (Conforti Dep., at 16); and see Markis v. Jolly Jorge's Inc., 4 Mass. Workers' Comp. Rep. 360, 362 (1990) (date to award, modify or terminate benefits must be lodged in the evidence). Since the evidentiary date chosen supported only continuing causally connected physical disability, the determination to terminate benefits as of that date was arbitrary. A date indicating an uninterrupted causal chain of industrially related disability cannot support an adjudicatory conclusion that medical disability ceased on the same date. Bearing in mind that medical disability and work incapacity are distinct concepts married generally through examination of vocational factors, to justify a cessation of benefits on such a date reference would have to be made to the latter elements. Medley v. E.F. Hauserman Co., 7 Mass. Workers' Comp. Rep. 97, 99 (1993). The judge's decision did not display reasoning of this kind.
Finally, the judge's order denying the employee's claims appears to terminate the employee's § 30 medical benefits as of October 29, 1990 exam date at which he was released to a work return with restrictions. If the judge so intended, given the uncontradicted evidence of continuing medical disability, said medical benefits termination would constitute error. Although a medical examination date or report may support a decision to commence, terminate or modify weekly benefits, a judge's order must not over reach. Where the evidence shows treatment or services rendered were neither reasonable nor necessary, he may deny past treatment, but the judge may not deny future treatment if both causally related to, and reasonable and necessary for the aftermath of an industrial accident. As stated above, health and infirmity are dynamic, changing conditions. An employee may be capable of remunerative work, but may still need medical treatment in the present or at some future point in time. Colon v. Andover Courtyard/Marriott, 9 Mass. Workers' Comp. Rep. 9 (January 24, 1995); see Pagnani v. DeMoulas/Marketbaskets, 9 Mass. Workers' Comp. Rep. 4 (January 20, 1995); see also G.L.c. 152, § 16. To avoid confusion, a better practice would be for the judge to have addressed, based on a preponderance of the credible evidence, the reasonableness and necessity of the employee's hospital treatment in 1991 and for the services rendered by Dr. Conforti. As with future incapacity for an industrial injury, future medical benefits always remain open.
Accordingly, since the judge did not address the issue of partial incapacity after finding work restrictions, did not make adequate subsidiary findings and denied total incapacity benefits utilizing a date that evidentiarily would not support the disallowance, we vacate and remand for a decision anew on the issue of the extent of incapacity. See Costa, supra (discussing application of Frennier standards). We summarily affirm the judge's liability determination, finding no error in the decision on the occurrence of an industrial accident.
The vigorous concurrence loses sight of the fact that only the employee appealed to the review board. Thus, much of what it advances is inapposite.
So ordered.
The majority reaches the correct result but ignores key credibility findings in the judge's decision. I reach the same result through different reasoning, while attempting to construe the decision in the manner in which I believe the judge meant it. The decision is erroneous as a matter of law because its order is inconsistent with its general findings. The decision is inadequate for appellate review because it fails to address the issues presented by the parties. For these reasons, I agree that the decision must be vacated and the case remanded.
Procedural History
To understand the decision and its errors, one must appreciate the procedural posture of the case. Both parties appealed the conference order. At hearing the insurer maintained the defenses of "liability, i.e. deny industrial injury, disability and extent thereof, causal relationship . . . deny entitlement to section 13 30 benefits . . ., and raised an issue as to the correct average weekly wage. (Insurer Ex. 1; Tr. 2.) See 452 CMR 1.11 (3). Therefore the issues to be decided included whether the employee had been injured by work and, if so, the nature and extent of his incapacity from the date of injury to the present.
This rule provides in pertinent part: "Before the taking of testimony in a hearing before an administrative judge, the insurer shall state clearly the grounds on which the insurer either has declined to pay compensation . . ., provided that such statements are based on grounds and factual basis reported by the insurer or based upon newly discovered evidence within the provisions of M.G.L.c. 152, §§ 7 and 8, and 452 CMR 1.00. On all other issues the employee's rights shall be deemed to have been established."
Judge's Decision
The judge properly listed the issues before him but failed to adequately dispose of them. (Dec. 2.) His subsidiary findings recite conflicting evidence without clearly stating what he found to be fact. His general findings indicate how he resolved the some, but not all, of the factual disputes.
The judge made the following general findings:
I find the employee's testimony credible when he describes the circumstances of his industrial accident and his resulting pain immediately thereafter and find that the employee sustained a personal injury arising out of and in the course of employment with MCF Industries.
I do not find the testimony of the employee credible when he describes the extent and severity of his lower back pain shortly after the accident to the present.
I do not find the testimony of the employee credible when he describes the extent of his disability shortly after the accident to present.
I find the testimony of the employee credible when he testifies that his back was not further injured in either motor vehicle accident.
I adopt the medical opinion of Dr. Weafer and find that the employee is able to work full time with restrictions.
I do not adopt the medical opinion of Dr. Conforti except for his testimony that the employee could return to work on October 29, 1990.
I find the employee's treatment to be reasonable and necessary as related to the condition diagnosed by Dr. Weafer of low back contusion, sprain and strain up to and including October 29, 1990.
I adopt the medical opinion of Dr. Weafer that the diagnosed condition of low back contusion, sprain and strain was caused by the industrial accident of 12/20/89.
(Dec. 9-10) (emphasis supplied)
The specific incredibility findings emphasized above makes irrational the majority's inference in n. 2 supra that the judge found the conference award of benefits appropriate. The judge's clear language in his general findings belies this conclusion. It is obvious that he did not award the employee the benefits sought because he did not believe the employee's complaints. Based upon the general findings the judge ordered that the employee's claim be denied and dismissed.
Issues
On appeal, the employee contends that the decision is contrary to law and unwarranted by the facts. (Employee's Notice of Appeal.) His brief lists the following arguments:
I. The administrative judge's subsidiary findings of fact are insufficient to support the administrative judge's decision or to enable the reviewing board to determine the appropriateness of that decision.
II. The administrative judge's rejection of the testimony of various witnesses was arbitrary, capricious and beyond the scope of the judge's authority.
III. The administrative judge should have exercised its (sic) discretion to award partial disability benefits pursuant to section 35.
(Employee's brief 1.) I will therefore directly address these issues.
The Order is Unsupported by the Findings and is Therefore Arbitrary, Capricious and Contrary to Law
Having found as a fact that the employee sustained a personal injury arising out of and in the course of employment, the judge erred in failing to conclude as a matter of law whether the employee was due any compensation provided by the act. Section 26 provides that "[i]f an employee . . . receives a personal injury arising out of and in the course of his employment . . ., he shall be paid compensation by the insurer as hereinafter provided . . ."
Weekly wage replacement benefits are due if the employee was incapacitated as a result of the injury for five or more calendar days. G.L.c. 152, §§ 29, 34, 35.
Medical payments are due for causally related "adequate and reasonable medical and hospital services, and medicines if needed, together with the expenses necessarily incidental to such services." G.L.c. 152, § 30. The amount of the medical payments is governed to G.L.c. 152, § 13(1). Having found the treatment for the work injury reasonable and necessary up to and including October 29, 1990, the judge erred in not ordering payment for it.
The Decision is inadequate Because It Fails to Address the Issue of the Extent of Incapacity from the Date of Injury
By appealing the conference order of compensation, the insurer placed in issue the nature and extent of the employee's incapacity from the date of injury and continuing. The judge found incredible the employee's pain complaints and disability description during the period shortly after the injury to the present. However, he determined that medical treatment up to October 29, 1990 was reasonable and necessary. These findings appear inconsistent and leave unclear the determination of the issues of nature and extent of incapacity, its causal relationship to the industrial injury and the reasonableness, necessity and causal connection of the medical services rendered. On all these issues, the employee has the burden of proof.
The decision makes no finding on whether the employee was incapacitated for more than five days. If so, as a matter of law, the judge had to award some weekly wage replacement benefits. See G.L.c. 152, §§ 29, 34 and 35. Even if the employee had no compensable lost time, because he did sustain a personal injury, he was entitled to an award of some medical benefits pursuant to G.L.c. 152, §§ 34 and 30.
Perhaps the judge erroneously believed that since the employee had been paid pursuant to the conference order up to March 14, 1990, he only had to award further benefits. If so, he misconstrued his adjudicatory duties. Section 11B requires to judge to adjudicate all issues before him. The hearing is a de novo proceeding. The proper approach where an insurer appeals the conference order raising such issues is to address the existence of the injury and the nature and extent of incapacity beginning on the injury date and continuing through the evidentiary period.
First, the judge should make a factual finding about the medical condition caused by the accident, i.e. the initial diagnosis. Next, he should define the work limitations caused by that medical condition. These limitations may vary over time. At each change in condition, judge should consider the current limitations together with the employee's vocational assets and decide how much the employee was able to earn. Saracino v. Commonwealth, 8 Mass. Workers' Comp. Rep. 422, 426 (1994) citing Medley's Case, 7 Mass. Workers' Comp. Rep. 97, 99-100 (1993); Scheffler's Case, 7 Mass. Workers' Comp. Rep. 219, 223 (1993); Frennier's Case, 318 Mass. 635, 639, 63 N.E.2d 461 (1945). The judge must then adjust the level of weekly wage replacement benefits accordingly. G.L.c. 152 §§ 34 and 35.
The Decision is Inadequate Because It Fails to Address the Medical Treatment after October 29, 1990
As the medical condition changes, the judge should also assess the adequacy and reasonableness of the medical and hospital services rendered, and the necessity of the medicines prescribed and make an appropriate award. G.L.c. 152, §§ 13 and 30. An employee may be entitled to continuing medical treatment even though the injury is no longer incapacitating, so long as the medical condition remains causally related to the work injury. See Scheffler's Case, 419 Mass. 251, 256 (1994) (medical benefits may be due even though there is no wage loss). Here the decision failed to address the causal connection, adequacy, reasonableness and necessity of the medical treatment after October 29, 1990. The judge was required by G.L.c. 152, § 11B to adjudicate this issue.
Other Issues
In all other respects, I agree with the majority position.
Conclusion
Because the judge's decision failed to employ the analysis required for a reasoned decision within the requirements of the Workers Compensation Act, and contains legal errors, I concur that it must be vacated.