Opinion
Board Number: 022929-90
Filed: January 31, 1995
REVIEWING BOARD:
Judges McCarthy, Fischel, and Wilson.
APPEARANCES:
Michael F. Manning, Esq., for the employee.
Joseph S. Buckley, Jr., Esq., for the self-insurer, with Matthew Connon on brief.
The self-insurer appeals from the decision of the administrative judge ordering the self-insurer to continue paying § 34 benefits and medical costs of the employee's work-related left leg arteriosclerotic condition on grounds that the judge mischaracterized the medical evidence presented, failed to specify what portions of medical opinions were adopted, and neglected to take the standard set out in Frennier's Case, 318 Mass. 63 (1945), into consideration in assessing the employee's work capacity.
After examining the decision and the medical and other evidence presented, we find the administrative judge's subsidiary findings deficient on the issue of extent of incapacity. First, we note that in rendering the decision, the judge based his general findings on the lay and medical testimony presented "and other documented evidence contained within the board file." (Dec. 6.) Not all documents contained within a board file are part of the record, and a judge must identify in the decision each and every piece of evidence considered, not only to allow the parties an opportunity to challenge evidence in the proceedings but to establish an accurate record for appellate review. See Rossi v. M.W.R.A., 7 Mass. Workers' Comp. Rep. 101 (1993).
See also 452 CMR 1.11(5) which in pertinent part provides: "The decision of the administrative judge shall be based solely on the evidence introduced at the hearing."
The self-insurer's primary argument on appeal is that the medical evidence establishes that the employee is not temporarily totally incapacitated, and that had the medical opinions been properly characterized the employee would have been assigned an earning capacity.
The judge found that Dr. Dragone, the employee's vascular surgeon, opined that as of December 1991 the employee was capable of returning "to work in a modified position providing certain restrictions were strictly adhered to." (Dec. 5.) The judge made the further finding that even with those restrictions, it was Dr. Dragone's opinion that the work entailed "some degree of risk" given the employee's guarded prognosis. (Dec. 5.) The judge adopted Dr. Dragone's opinion in part to find that the employee continued to be temporarily totally incapacitated. Yet the subsidiary findings regarding Dr. Dragone's testimony and opinions set out by the judge do not support a finding of no work capacity.
The judge did not set out the restrictions in his decision.
The record reveals that as of a December 2, 1991 medical report, Dr. Dragone opined that the employee could return to modified work while avoiding any trauma to his left leg and restricting both sitting and standing to a maximum of two hours, with the ability to ambulate thereafter, and, further, restricting his exposure to extremely cold temperatures. (Dragone Dep. Exhibit #6.) During his deposition conducted on August 25, 1992, Dr. Dragone testified that the employee had been capable of performing office work since December 1991. (Dragone Dep. 28.)
The judge also considered the expert opinions of Dr. Camer, who examined the employee on January 15, 1991 and May 5, 1992 on behalf of the self-insurer. The judge found that it was Dr. Camer's opinion that the employee's vascular disease was "extremely precarious" and would not improve and that as of May 5, 1992 the employee was totally disabled from his former occupation as a yard motorman and from three positions offered by the employer. (Dec. 5-6.) The judge adopted Dr. Camer's opinion "in part" on the issue of extent of incapacity and in awarding § 34 benefits. However, in a July 7, 1992 medical report, Dr. Camer opined that the employee "should avoid any job that includes bending or exposure to cold," without specifically restricting all work activity. The doctor opined during an August 25, 1992 deposition that the employee was capable of performing office work. (Camer Dep. 30.)
The judge listed one of the jobs, fare collector, in the decision. The other positions were car counter and operational checker. (Camer Dep. Exhibits #4, 5.)
A judge acts within his authority when he adopts the opinion, in whole or in part, of a medical expert. However, in adopting but part of an opinion he should specify what part so that an appellate body can determine whether the judge applied correct principles of law in determining the issues before him. Section 11B provides that "[d]ecisions of members of the board shall set forth the issues in controversy, the decision on each and a brief statement of the grounds for each such decision." (Emphasis added.) On recommittal, the judge should provide more explicit subsidiary findings on the portions of the medical opinions he adopted to support his ultimate conclusion of continuing total incapacity.
In addition to reconsidering the medical testimony and making findings on it, the judge must also make specific findings about the employee's age, experience, training, education and capabilities. He should then place the medical limitations found into the larger landscape of the employee's life history. Only then can the judge proceed to the ultimate factual question of whether and to what extent the work related medical disability intrudes on the employee's capacity to perform remunerative work.
Judges Fischel and Wilson concur.