Opinion
BOARD No. 02313395
Filed: October 17, 1997
REVIEWING BOARD DECISION (Judges Maze-Rothstein, McCarthy and Smith)
APPEARANCES
Paul N. Gollub, Esq., for the employee
Paul R. Matthews, Esq., for the insurer at hearing
Martha E. Krache, Esq. and Paul R. Matthews, Esq., for the insurer on brief
The employee was awarded a closed period of § 34 temporary total incapacity benefits. On appeal he argues that the date chosen for ending weekly benefits is not supported by the evidence and that the earning capacity determination is erroneous as a matter of law. Because we find error in the decision, we reverse in part and recommit the case.
As a conference worker for a Cape Cod resort, the employee set up rooms for conferences and seminars by moving tables and chairs. He also assembled and dismantled a moveable dance floor and kept the resort minibars stocked. (Dec. 763.)
On June 26, 1995 while arranging a conference room the employee lifted a sofa with a co-worker's assistance. He felt an immediate sharp pain in his low back. He reported the injury to his employer and received medical treatment that day. He has not returned to work since. His injury has been treated conservatively. (Dec. 764.)
The decision twice states that the employee was injured on June 26, 1996. We presume these are scrivener's errors.
The insurer paid § 34 benefits on a without prejudice basis from the injury date to October 11, 1995. The employee filed a claim for further benefits. After a § 10 conference the claim was denied, prompting the employee's appeal to a de novo hearing.
The employee and the employer's human resources director testified. (Dec. 762, 764, 765.) A § 11A medical examination was conducted and the consequent report, that spoke only to the employee's condition on the exam date, was ruled adequate over the employee's objection. Because there was a six month gap between the start of the claimed period of disability and the doctor's report, the administrative judge allowed additional medical evidence on the extent of medical disability for that six month period. In response, both parties submitted medical reports from their respective medical experts. (Dec. 766-767.)
General Laws c. 152, § 11A gives an impartial medical examiner's report the effect of "prima facie evidence (with regard to the medical issues) contained therein," and expressly prohibits the introduction of other medical evidence to meet it unless the judge finds the additional medical testimony is required due to the complexity of the medical issues involved or the inadequacy of the report.
See George v. Chelsea Hous. Auth. 10 Mass. Workers' Comp. Rep. 22 (1996) (for discussion of how a gap period arises under § 11A).
On appeal employee submits that the designation of November 16, 1995 as the date to terminate the benefits is without support in the record. The explanation for the November 16, 1995 date is found in the following subsidiary findings.
In the first report, dated July 15, 1995, and in the last four reports, dated November 16, December 1 and 14, 1995, and March 14, 1996 [Dr. Jacques] determined that he [sic] employee was disabled and unable 'to return to his occupation'. . . . I interpret the doctor's disability statements as indicating that after the November 16, 1995 examination the employee had a light duty work capacity, but that he could not return to his previous occupation[.]
(Dec. 768.)
The judge went on to make the following general findings.
The employee was probably only partially disabled by September 18, 1995, the day that [the employer's director of human resources] wrote the letter offering the employee a light duty job. However, I have no medical documentation before me which states that until Dr. Jacques November 16, 1995 report. [sic] I find that as of November 16, 1995, if not sooner, the employee could have performed either of the two light duty jobs that were offered to him, and are still available to him. As those jobs were offered to him at full pay, his earning capacity as of that date is $300, his pre-injury average weekly wage. Therefore, all weekly compensation ends on that date. In assigning the termination date of November 16, 1995, I rely on the report of Dr. Jacques.
(Dec. 769.)
It is basic that subsidiary findings must be supported by factual evidence in the record. Absent such support the findings are arbitrary. In re Mason v. University Hosp., 10 Mass. Workers' Comp. Rep. 409, 411-412 (1996). While a judge may draw inferences from the evidence, such inferences must be within the realm of reason given the facts found. Moretti v. Moretti Cons. Co., 10 Mass. Workers' Comp. Rep. 98, 99 (1996). Dr. Jacques' November 16, 1995 report lends no direct support to a finding of physical improvement. Nor does the language in his report support an inference in that regard. The November 16, 1995 report reads: "[the employee]" is disabled at this point in time to return to work." (Employee exhibit 4.) The doctor's statement stands without qualification as to what type of work. It merely states he cannot return to work. The report does not evidence any improvement in the employee's condition. As such, it does not support a reduction in benefits on that date.
Dr. Jacques's reports do evidence some improvement by December 1, 1995, at which point the employee was restricted only from return to his prior work. We can not know whether the choice of the November 16, 1995 report was merely clerical error.
Secondly, the employee argues that the earning capacity assignment of the level of former average weekly wage based on the offer of two light duty jobs is faulty. We agree. A job offer can properly lead to the assignment of an earning capacity. See G.L.c. 152, § 35D(3). However, the offer must be bona fide which means that the job must be available and the employee must be able to do it. G.L.c. 152, § 35D(5); Rochon v. Copi Labs Inc., 10 Mass. Workers' Comp. Rep. 509, 511 (1996). In making this determination, a judge must go beyond a mere statement that he has considered the employee's age, work and educational experience. He must analyze these factors in light of the employee's physical restrictions and the physical requirements of the job. The employer here offered two jobs, ironer and pool attendant. (Dec. 765.) While the decision does mention some physical requirements and does establish that the jobs presently existed, both were offered at a resort that is closed from November to April. (Dec. 763.) The decision does not reveal whether the pool attendant job lasted during the entire six months the resort was open. Such findings are necessary to determine the bona fide nature of the job.
During 1996, the year of the hearing, the employee went to Jamaica from January 16, 1996 to March 2, 1996. (Dec. 764.) SeeMajor v. Raytheon Corp., 7 Mass. Workers' Comp. Rep. 90, 93 (1993) (legislature has not defined "suitable job" as inclusive of consideration of its location vis-a-vis the employee's home).
Accordingly, we reverse the finding terminating the employee's benefits on November 18, 1995 and recommit the case for new findings on that issue. Findings are also needed on the bona fide nature of the offered jobs and any earning capacity based thereon. The judge may allow the introduction of additional evidence, at his discretion.
So ordered.
_______________________________ Susan Maze-Rothstein Administrative Law Judge
_______________________________ William A. McCarthy Administrative Law Judge
_______________________________ Suzanne E. K. Smith Administrative Law Judge