Opinion
BOARD No. 0544493
Filed: September 24, 1997
REVIEWING BOARD DECISION (Judges Wilson, Fischel and Levine)
APPEARANCES
Anthony W. Fugate, Esq., for the employee at hearing
William J. Branca, Esq., for the employee on appeal
John C. White, Esq., for the self-insurer at hearing
Joyce E. Davis, Esq., for the self-insurer on appeal
The self-insurer appeals from a decision of an administrative judge who found the employer in violation of § 75A and awarded a closed period of § 34 benefits for total, temporary incapacity. Because the judge erred in considering § 75A and apparently relied upon that consideration in reaching her conclusions on extent of incapacity, we vacate that finding and remand the case for new findings on incapacity.
Shirley Hall, who was thirty-four years old at the time of the hearing, is a high school graduate. She began her employment as a bus driver for the M.B.T.A. in 1989. She previously had worked as an assembler of camera parts and as the assistant supervisor of a hospital medical records department. (Dec. 3.) On March 8, 1993, she injured her left knee on a cotter pin on one of the employer's buses. Initial x-rays indicated no probable acute abnormality, although, on one x-ray, an ill-defined lucency in the ventral cortex of the patella was noted. Follow-up treatment included splinting, physical therapy, home exercises, x-ray testing and a MRI. Except for a one week attempt to return to work, she has not worked since her injury. (Dec. 3-4.)
The self-insurer paid § 34 benefits without prejudice from March 9, 1993 to May 3, 1993, and § 35 benefits from May 18, 1993 to July 2, 1993. The employee subsequently filed a claim for further benefits. Following a § 10A conference the self-insurer was ordered to pay § 34 benefits from July 2, 1993 to December 1, 1993 and continuing § 35 benefits thereafter. The self-insurer appealed that order and a hearing de novo was held. (Dec. 2.)
Lay testimony was given by the employee and a fellow bus driver, who credibly described the physical requirements of the employee's pre-injury job. (Dec. 5.) Medical testimony was limited to the § 11A impartial report and deposition of Dr. Frederick Ayers, who diagnosed a left knee contusion causally related to the March 8, 1993 work incident. (Dec. 4.)
The gravamen of the self-insurer's appeal arises from the following finding of the hearing judge:
Although the evidence tends to show that the employee was totally disabled until August 5, 1994, the employee seems to concede partial as of December 2, 1993, by her claim for partial as of that date. However, the employer failed to give the employee the preference required by Section 75A. I am, therefore, persuaded that employers in the employee's community were reluctant to hire the employee because of the residual effects of her injury, and I therefore award Section 34 continuing to August 5, 1994, by which date the Impartial Physician had opined that the employee was capable, and the employee conceded, and I find, based on having viewed the employee and listened to her testimony at that time, that she could do her job.
(Dec. 6.)
The self-insurer claims four errors by the judge in regard to this finding: 1) ruling that § 75A applied to circumstances governed by a collective bargaining agreement; 2) finding that the employer violated § 75A when there was no evidence that a suitable job for the employee was available; 3) awarding § 34 total temporary incapacity benefits on the grounds that the employer had violated § 75A; and 4) awarding § 34 benefits when the employee had claimed § 35 benefits.
General Laws c. 152, § 75A states in pertinent part:
Any person who has lost a job as a result of an injury compensable under this chapter shall be given preference in hiring by the employer for whom he worked at the time of the compensable injury over any person not at the time of the application for reemployment employed by such employer; provided, however, that a suitable job is available. . . .
In the event that any right set forth in this section is inconsistent with an applicable collective bargaining agreement . . . the collective bargaining agreement . . . shall prevail.
We need not address the merits of the self-insurer's first two arguments because § 75A was not an issue before the judge. Although the judge recognized that an action under § 75A must be filed in superior court, § 75A was neither invoked by the employee in this forum nor was it constructively raised by the evidence presented. Compare Debrosky v. Oxford Manor Nursing Home, 11 Mass. Workers' Comp. Rep., ______ slip op. at 3-4 (April 15, 1997) (an issue, though not specifically raised but tried in fact by consent, should be decided). Moreover, § 75A is not self-operative. Contra G.L.c. 152, §§ 7A and 51A. Accordingly, we vacate the finding that the employer failed to comply with § 75A.
Evidence was presented of the employee's attempts to find work with other employers. This evidence appears to address the issue of extent of incapacity which was before the judge. There was, however, no evidence proffered on the matter of the M.B.T.A's hiring practices.
Because we vacate the § 75A finding, the self-insurer's third argument merits discussion. We agree that the judge's determination of the time frame of the employee's total incapacity rests on the finding that the employer failed to accord the employee the preference required by § 75A and, therefore, cannot stand.
We note that the judge made the following additional subsidiary findings that independently lend support to the August 4, 1994 § 34 benefits cut-off date.
Although Dr. Ayers, at one point, expressed the opinion that the employee, as of his exam on May 6, 1994, was physically capable of going back to work (D57) and could press down on a pedal with her left foot if it was 'anything like the high beam-low beam', shortly thereafter he states, 'I don't know if there would be any significant problem with that'. (D55) This doubt raised by Dr. Ayers, taken together with the testimony of a friend of the employee and a bus driver for the MBTA, . . ., which I deem credible, that the employee's job required frequent and repetitive pressing down on the pedal, with the left foot, leads me to conclude that the employee remained unable to perform an essential function of her driving job (the pressing down is done each and every time the bus is stopped), until the August 5, 1994, Hearing, when the employee herself concedes that she felt able to return to work.
(Dec. 5.)
As we are unable to determine the degree to which the general findings on extent of incapacity were influenced by the § 75A finding on the employer's shortcoming, we recommit the case for reconsideration of the extent and duration of incapacity in the open labor market pursuant to the principles set forth inScheffler's Case, 419 Mass. 251, 256 (1994) and Frennier's Case, 318 Mass. 635, 639 (1945).
We are not persuaded by the self-insurer's fourth argument. A judge may award total, temporary benefits for a period for which the employee claimed temporary, partial benefits where the medical evidence and vocational analysis warrant such a finding. SeeFragale v. MCF Industries, 9 Mass. Workers' Comp. Rep 168, 172 (1995).
The finding that the employer violated § 75A is vacated and the case is recommitted to the hearing judge to make further findings in accordance with this decision.
So ordered.
______________________________ Sara Holmes Wilson Administrative Law Judge
______________________________ Carolynn N. Fischel Administrative Law Judge
______________________________ Frederick E. Levine Administrative Law Judge
Filed: September 24, 1997