Opinion
BOARD No. 08000388
Filed: March 20, 1998
REVIEWING BOARD DECISION
(Judges McCarthy, Maze-Rothstein and Smith).
APPEARANCES
Robert J. Marchand, Esq., for the employee.
John J. Maloney, Esq., for the insurer.
Andre Gauthier, now forty-five years old, had worked for AC Lumber Co. for eighteen years when he injured his back on November 22, 1988. The injury aggravated a pre-existing spondylolisthesis condition. He has not engaged in gainful employment since that injury. The insurer accepted the case and paid weekly incapacity benefits under § 34 of the Act until June 5, 1992, when weekly benefits were reduced to partial incapacity as a result of a conference order filed by an administrative judge. Neither party appealed that order. Some time later, the insurer filed another complaint to terminate or modify weekly benefits. Following a conference on that new complaint, the weekly benefits were further modified by the judge who established a conference earning capacity of $170.00 per week. This conference order was appealed by the employee and the insurer, and the case was returned to the same judge for a full evidentiary hearing.
At the hearing, testimony was received from the employee, from a private investigator, from a vocational rehabilitation expert, and, by way of deposition, from one of the impartial physicians, Dr. Jose Delgado, a psychiatrist. The reports of both impartial physicians, Dr. vonErtfelda, an orthopedist, and Dr. Delgado, the psychiatrist, were admitted into evidence. Thereafter, the judge filed his decision finding that the employee had no disabling psychiatric injury, but that he remained partially incapacitated as a result of his orthopedic injuries. The judge increased the employee's earning capacity from $170.00 to $300.00 per week as of November 8, 1995, the date of the § 11A impartial orthopedic medical exam.
The employee appealed. He does not challenge the finding of partial incapacity, but contends that the judge did not set forth adequate subsidiary findings to support the earning capacity he assigned to the employee. We agree.
The employee also argues that the judge was required to make findings to substantiate an increase in the earning capacity from $170.00 set by conference order to $300.00 per week. (EE brief p. 4.) The earning capacity of $170.00 was based on information presented to the judge at the conference held under the provisions of § 10A. The order issued after the conference was interlocutory and only remained in effect until superceded by the terms of the decision filed after the de novo evidentiary hearing held under the provisions of § 11. The judge did not have to substantiate the increase in earning capacity. Payton v. Forbes Foster Glass Co., 11 Mass. Workers' Comp Rep. ___ (Dec. 23, 1997). He only had to give reasons grounded in the evidence for the $300.00 earning capacity found at the hearing.
As the court in Scheffler's Case, 419 Mass. 251 (1994) has explained, a determination of earning capacity must be made by taking into account an employee's education, training, age and experience. The judge may also need to consider the nature of any job(s) for which the employee is applying, the employee's seniority status, the attitudes of personnel managers and insurance companies, the business prospects of the employer, and the strength or weakness of the economy. Id. at 256. The impartial examiner's opinion should be given prima facie effect as to medical issues only, which include the doctor's description of the employee's physical ability to perform certain tasks, as well as restrictions the examiner would place on the employee's physical ability to work. Id. at 257.
It is not clear from the judge's decision what factors he considered in establishing earning capacity. There is no discussion of the duties of the job at which the employee was injured or of his education or other work experience. There is no opinion as to what kinds of jobs the judge believes the employee can perform, given his physical limitations as expressed by the impartial orthopedic examiner. There is no discussion as to what the employee could be expected to earn in any job the judge might find him capable of doing. In short, there is no vocational analysis at all in the judge's decision. Furthermore, other than the judge's statement that he does not find the employee to be a particularly credible or motivated witness, there is no indication as to what, if any, aspects of the employee's testimony regarding his physical capabilities and ability to work the judge did credit. While a judge has considerable discretion and may use his own judgment in determining the amount of an employee's earning capacity, Mulcahey's Case, 26 Mass. App. Ct. 1, 3 (1988), he must support the determination with adequate subsidiary findings grounded in the evidence. Beagle v. Crown Serv. Sys., Inc., 10 Mass. Workers' Comp. Rep. 282, 284 (1996).
For obvious reasons, the employee does not argue that since there is no evidence of a change in the earning capacity, the award of $300.00 per week should be applied retroactively and supercede the earlier conference order of $170.00. The only expert orthopedic medical evidence came from the § 11A report of Dr. vonErtfelda. His report speaks only about what he found upon examination on November 8, 1995. It was one thing to say in years past that when the employee was free to present medical evidence of his own choosing "the burden of showing the measure of . . . incapacity had not shifted . . ." because it was a discontinuance proceeding initiated by the insurer. Ginley's Case, 244 Mass. 346, 348 (1923). It is quite another thing to say that today where the usual and preferred method of resolving medical issues is by the use of the § 11A medical examiner. The insurer did not appeal here so we let stand the date of the § 11A impartial exam as the starting date for the increased earning capacity. "The board is not bound by strict legal precedent or legal technicalities, but, rather governed by the practice in equity." Utica Mutual Ins. Co. v. Liberty Mutual Ins. Co., 19 Mass. App. Ct. 262, 267, (1985). See D'Angeli v. McDonald's Restaurant, 1 Mass. Workers Comp. Rep. 193, 196 (1987).
Because the judge has not done that, we recommit this case to him for further findings consistent with this opinion. In his sole discretion, the judge may hold a further hearing if justice so requires.
So ordered.
___________________ William A. McCarthy Administrative Law Judge
___________________ Susan Maze-Rothstein Administrative Law Judge
FILED: March 20, 1998
The § 11 hearing is a de novo proceeding where all issues are litigated anew. Conroy v. Norwood Hospital, 11 Mass. Workers' Comp. Rep.___, slip op. at 2 (October 1, 1997.) "[T]he evidentiary burden was on the employee with respect to all his claims." Connolly's Case, 41 Mass. App. Ct. 35, 37 (1996). The appeals from the § 10A conference order placed in jeopardy all the benefits it granted. Id. Gauthier correctly asserts that the decision lacks findings of changed incapacity during the time period in contest. He claimed § 35 partial compensation from March 28, 1995. (Employee's Ex. 1; Tr. 3.) The record lacks any evidence to support a change in the level of incapacity in the middle of the claim period, on November 8, 1995. Monet v. Massachusetts Respiratory Hospital, 11 Mass. Workers' Comp. Rep. ___ (November 17, 1997). For this reason, I concur in recommittal.
A judge, in responding to an insurer's appeal from a conference order, could reduce those benefits ordered at conference, thus exposing the employee to a recoupment claim by the insurer for the recovery of overpayments pursuant to G.L.c. 152, § 11D(3).Connolly's Case, at 37.
The decision is otherwise adequate for appellate review. On this limited evidentiary record, the judge was not required to identify any particular jobs that the employee could perform and obtain.Mulcahey's Case, 26 Mass. App. Ct. 1, 3 (1988). The burden of producing evidence relative to alternative lines of work rested on the employee, who failed to satisfy it. Id. The judge found Gauthier was not "a compelling witness insofar as credibility is concerned." (Dec. 8.) Gauthier had the medical ability, but was unmotivated, to return to work. (Dec. 5.) He had not tried to obtain work. Id. He did not present a vocational expert witness. (Dec. 1.)
The judge made detailed findings about the employee's physical limitations and lack of psychiatric limitations, as well as his education, training, age and experience. See Scheffler's Case, 419 Mass. 251, 256 (1993). In the absence of probative vocational testimony, having determined that Gauthier had the medical ability to perform some remunerative labor, the judge was entitled to use his own judgement and knowledge and summarily set the amount that Gauthier was capable of earning. Mulcahey's Case, supra; G.L.c. 152, § 11B. The judge concluded, "considering the employee's work history and current physical condition," that Gauthier had an earning capacity of $300 per week. (Dec. 9.) This finding was tantamount to a statement that the evidence left the judge unpersuaded that Gauthier is precluded by the residual effects of his work injury from doing work that paid $300 per week or less. Id. These incapacity findings were adequate.
He is able to stand for two to three hours, walk without a cane, and drive a car and motorcycle. (Dec. 4.) He is able to drive a taxi with an automatic transmission. (Dec. 5.) He cannot actively engage in prolonged physical activity. (Dec. 6.) He is unable to lift in excess of twenty-five pounds, and should not crawl, climb, or have extended periods of uninterrupted sitting or standing. (Dec. 8.)
His attitude and demeanor do not indicate depression. (Dec. 6.) The employee was not disabled as a result of any psychiatric condition. (Dec. 7.)
He attended Bristol High School through the eleventh grade and in 1996 obtained a GED. (Dec. 3.)
He is forty-four. (Dec. 3.)
He performed volunteer work for the American Cancer Society transporting patients from Fall River to Boston. (Dec. 4.) He cared for an elderly aunt who needed full-time supervision. (Dec. 5.)
Such as cab driving or eldercare which he had been voluntarily performing. (Dec. 4-5.)
However, the judge erred in changing the level of incapacity on a date when nothing in the employee's medical or vocational condition changed. Monet, supra; Parker v. Shaw's Supermarkets, Inc., 12 Mass. Workers' Comp. Rep. ___ (January 5, 1998). For that reason, the case must be recommitted.
___________________ Suzanne E.K. Smith Administrative Law Judge