Opinion
11-P-770
03-14-2012
MARY JANE DOONAN'S CASE.
NOTICE: Decisions issued by the Appeals Court pursuant to its rule 1:28 are primarily addressed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, rule 1:28 decisions are not circulated to the entire court and, therefore, represent only the views of the panel that decided the case. A summary decision pursuant to rule 1:28, issued after February 25, 2008, may be cited for its persuasive value but, because of the limitations noted above, not as binding precedent.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
Mary Jane Doonan (employee) argues that the administrative judge failed to conduct a proper vocational analysis in determining her earning capacity. As we explained in Eady's Case, 72 Mass. App. Ct. 724, 727 (2008) (citations omitted), 'three elements, or subsidiary findings, that support an assignment of earning capacity [are] (1) the employee's medical limitations, (2) the employee's employment capabilities, including age, education, work experience, and transferable skills, and (3) the market for the employee's skills.' The administrative judge's decision refers appropriately to the employee's medical limitations and her personal capabilities.
Although the insurer argues that this claim was waived because it was not raised in the employee's first appeal to the reviewing board of the Department of Industrial Accidents from the previous decision of the administrative judge, the reasoning that provides the basis for the employee's claim appeared for the first time in the decision of the administrative judge that is on review in this case, issued after an initial remand by the reviewing board. In these circumstances, we conclude that the employee's claim has not been waived.
The reviewing board summarily affirmed the decision of the administrative judge. See Scheffler's Case, 419 Mass. 251, 258 (1994).
As to the market for the employee's skills, the administrative judge found the employee 'capable of returning to a nursing position that would include that of an office nurse, nurse supervisor or file reviewer, which positions would be generally, sedentary in nature, involve little or no physical aspects of patient care and not require lifting over 25 pounds or prolonged walking, standing, stooping or squatting.' The administrative judge also found that the employee would be capable of working, presumably at the aforementioned jobs, at the rate of $20 per hour. Given a capacity of thirty-two hours a week -- which the judge appropriately found based on the employee's past ability to work, the nature of her injury, and the limitations upon her -- the judge concluded that the employee was capable of earning $640 per week.
However, as in Eady's Case, the decision does not explain the $20 per hour figure. To be sure, that is at the bottom range of the pay that the employee previously received for her work in nursing, but there is no explanation linking this amount to the jobs that the administrative judge concluded the employee could undertake. Nor did the administrative judge explain precisely what the jobs described would entail. See id. at 728.
Although the administrative judge described testimony concerning nursing jobs available 'that involved cart review and record keeping,' it does not appear that these are the jobs that she concluded the employee might undertake. The record indicates that these jobs required a facility with computers that the employee testified she did not have; nor did the administrative judge seem to conclude that the employee did have such facility. The administrative judge noted only that the employee's earning capacity is based upon 'her extensive and somewhat varied background in nursing and supervisory nursing,' and upon 'the experience and knowledge she acquired in running her own small business, as well as her excellent communication skills.'
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Consequently, as was required in Eady's Case, supra, we must 'vacate the amount of the partial disability award and remand for [recommital to the administrative judge and] a reasoned computation of that amount consistent with this [memorandum and order], including a reference to the factual source[s] for the monetary figure. On remand 'the information already present in the case file, or reliable publications of labor statistics, or additional evidence' may be consulted.' Ibid. In all other respects, the decision of the reviewing board is affirmed.
So ordered.
By the Court (Graham, Rubin & Milkey, JJ.),