Opinion
BOARD No. 02714393
Filed: November 26, 1996
REVIEWING BOARD DECISION
(Judges Fischel, Wilson and Kirby)
APPEARANCES
Mindy Montecalvo, Esq., for the employee
Donna Gully-Brown, Esq. for the insurer
The employee appeals a decision in which the administrative judge concluded that she was no longer incapacitated as of December 1, 1994, one month after a medical examination conducted pursuant to G.L.c. 152, § 11A. Because we agree with the employee that there was nothing in the evidence attaching any significance to that particular date, we remand the case for further findings.
The employee suffered an industrial injury to her back, legs and shoulders on August 5, 1993, when she lifted a box of computer checks and proceeded to place it into a drawer, while working as a clerk and secretarial helper. (Dec. 5.) The insurer initially paid G.L.c. 152, § 34 incapacity benefits without prejudice from date of injury until October 16, 1993. (Dec. 1.) The employee then sought continuing G.L.c. 152, § 35 partial incapacity benefits from October 16, 1993, which claim the insurer disputed. (Dec. 2.) As a result of a conference, the judge assigned an earning capacity of $170.00 and awarded weekly § 35 benefits of $70.88. The insurer appealed to a hearing de novo. (Dec. 1.)
At the January 25, 1994 hearing, the insurer accepted liability but contested incapacity and the extent thereof. (Dec. 2, 5.) The judge found the employee credibly testified as to her continuing pain and physical limitations. (Dec. 7.) The employee was examined under the provisions of § 11A on November 1, 1994. The § 11A physician opined that the employee suffered from a ruptured disc at L4-5, which was causally related to the industrial accident, and which restricted the employee's activities. (Dec. 9.) The impartial examiner also opined that the employee's cervical degenerative disease did not impair the employee, and her weight was a contributing factor to her degenerating cervical and lumbar spine. (Dec. 9-10.) The impartial physician imposed restrictions of avoiding strenuous work involving lifting and bending, and to avoid standing or sitting for prolonged periods without breaks. As the employee's work appeared generally to fit the restrictions that the impartial physician imposed, the doctor further opined that the employee could resume work, initially on a part time basis, and "should be able to progress to full time activities[.]", (Dec. 12, Ex. A.) The judge adopted these opinions, (Dec. 9-10), and concluded that the employee was partially incapacitated from October 16, 1993 until December 1, 1994, one month after the § 11A examination. As of December 1, 1994 the judge terminated incapacity benefits, as he determined that the employee was capable of returning to her full time employment. (Dec. 11.)
Neither party raises the issue of the irregular sequence of the lay testimony and the § 11A examination. See O'Brien v. Blue Cross/Blue Shield, 9 Mass. Workers' Comp. Rep. 16 (1995).
The employee argues that the judge's decision terminating incapacity benefits was arbitrary and capricious because the date chosen for such termination was not grounded in the evidence. We agree. Findings as to incapacity must be anchored in the evidence. See Palardy v. Commonwealth of Massachusetts DPW, 6 Mass. Workers' Comp. Rep. 165, 166 (1992). More important is that the impartial physician's opinion that the employee "should be able to progress to full time [employment] activity" did not even purport to state when the employee's incapacity would decrease or cease, and cannot be the basis of the judge's incapacity findings. See Chadwick v. Chadwick Greenhouse. Inc., 9 Mass. Workers' Comp. Rep. 12, 14 (1995). Since the judge's conclusion that the employee could return to full time work as of December 1, 1994, one month after the impartial examination date, is based on the doctor's indefinitely-expressed opinion as to when the employee would have the capacity to return fully to her work (Dec. 12), we remand the case for further findings regarding present incapacity. The judge may allow additional evidence on that issue.
So ordered. _________________________ Edward P. Kirby Administrative Law Judge
_________________________ Carolynn N. Fischel Administrative Law Judge
_________________________ Sara Holmes Wilson Administrative Law Judge