Opinion
BOARD No. 58795-94
Filed: May 21, 1997
REVIEWING BOARD DECISION (Judges Maze-Rothstein, McCarthy and Smith)
APPEARANCES
Michael C. Akashian, Esq., for the employee.
Edward F. McGourty, Esq., for the insurer at hearing.
Dissatisfied with a decision that awarded a closed period of G.L.c. 152, § 35 partial incapacity benefits, the employee appeals. He contends that the opinion of the § 11A physician was mischaracterized, that the subsidiary findings do not explain how his residual physical limitations affect his ability to work, and finally, that his average weekly wage was improperly determined. Because these arguments have merit, we reverse in part and recommit for further findings consistent with this opinion.
We do not address the employee's constitutional argument as it was answered in O'Brien's Case, 424 Mass. 16, 23 (1996) (court finding § 11A(2) to be facially constitutional, but stating that in a particular case, it could have due process problems in its application). Neither do we address whether either the conduct of the employee or the employer constituted serious and willful misconduct because any error was harmless. See (Dec. 8.)
The employee, a member of the Bricklayer and Allied Craftsman Union, worked as a tile setter and grouter in the third harbor tunnel project. (Dec. 4.) He manually tiled the walls and ceiling of the tunnel with a special epoxy grouting substance. Id. To do so, he would apply freshly mixed grout to the wall. As it spread over the tile seams, the excess was then washed off with a sponge and water. (Dec. 5.) This arduous endeavor frequently tore the employee's protective suit. Id. And because the sleeves of the suit did not gather at the wrists, water would run down both the sleeves and then back into his gloves as the employee alternately scrubbed above shoulder level and rinsed the sponge in the wash bucket. Id. As the job progressed, the wash water itself would become increasingly contaminated with the epoxy grout, causing wetness and irritation to the employee's arms, hands, fingers, and sometimes his torso. Id.
On November 4, 1994, while performing his usual duties, the employee began to experience cracking and bleeding of his hands.Id. After reporting to work on November 7, 1994, he received treatment for his injuries at the employer's behest. (Dec. 5-6.) So ended the employee's only work career. He has not worked since that day and continues to have pain and physical limitations caused by the industrial accident. See (Dec. 2, 7, 9, 12.)
The insurer paid G.L.c. 152, § 34 temporary total incapacity benefits without prejudice until May 1, 1995, which prompted the employee to file a claim seeking further recompense. (Dec. 1.) Following a § 10A conference, § 35 partial incapacity weekly compensation was ordered from May 2, 1995 to May 2, 1996 in the amount of $357.60 with an earning capacity of $280.00. (Dec. 1-2.) The employee appealed to a hearing de novo.
At hearing the occurrence of an industrial injury on November 7, 1994 was not contested. At issue was only the extent of incapacity and the employee's average weekly wage. See (Dec. 2.)
Pursuant to § 11A(2) a dermatologist examined the employee on September 13, 1995. The reported diagnosis was "eczematous contact dermatitis to epoxy resin" directly causally related to the industrial accident of November 7, 1994. (Stat. Ex. 2.) The doctor opined there was a permanent partial disability. (Stat. Ex., 3.) As for future tile setting and finishing, even if other setting agents beyond epoxy were available, the doctor felt that the employee should not return to such work. (Dec. 6-7; Dep. 21-24, 25-28, 37-38.) Though the continuous fissuring of the employee's fingers was at a medical end result, the doctor believed that it might improve with time. (Dec. 6; see also Stat. Ex. 3.)
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.
In the decision, the judge stated that in the § 11A doctor's deposition he had "clearly changed his previously-stated opinion regarding the extent of [the employee's] ability to return to work as a tile setter." (Dec. 7.) The judge adopted the testimonial opinion "in all aspects where it conflicts with his written report". (Dec. 8.) The judge found that the employee had a permanent partial disability which imposed only minimal restrictions on his normal occupation as a tile mechanic/finisher. (Dec. 12.) He further found that since the date of the § 11A examination, there was no diminution of his previous earning capacity. Id. The findings are not supported by the referred to deposition testimonial.
Expert medical testimony is required in matters beyond the common experience of the ordinary layman. Casey's Case, 348 Mass. 572, 574-575 (1965). But a judge is never free to mischaracterize a medical opinion. See Turcotte v. Westinghouse Elec. Corp., 9 Mass. Workers' Comp. Rep. 300, 303 (1995) and cases cited; Ata v. KGR, Inc., 10 Mass. Workers' Comp. Rep. 56, 57 (1996).
Nowhere in the deposition did the § 11A doctor change his opinion regarding the employee's inability to return to his previous occupation. Rather, he consistently and unequivocally, with a reasonable degree of medical certainty, opined that the employee could not work as a tile setter or with epoxy resin, and must avoid other potential irritants and chemicals as well. (Dep. 20. 23-25, 28, 31-34, 37-40, 46-48.)
Indeed, the § 11A physician did state that it was "possible" for the employee could return to work where there was a "guarantee" that he could avoid all epoxy in all applications. (Dec. 7-8; Dep. 21, 24.) This however does not amount to an affirmative opinion that the employee could work as a tiler. Conjecture over what may be possible cannot be construed as a clear change of opinion. (Dec. 7.) In order for the judge to assign medical evidence any probative value, that evidence must be more than mere speculation. Caron v. Resi Comm. Constr., 6 Mass. Workers' Comp. Rep. 167, 170 (1992) and cases cited. Here, because the deposition opinion was based on possibilities rather than probabilities, it must fail and it can carry no weight. See Dalrymple v. Reidy Body and Paint Shop. Inc., 10 Mass. Workers' Comp. Rep. 275, 277-278 (1995); Compare Bedugnis v. Paul McGuire Chevrolet, 9 Mass. Workers' Comp. Rep. 801 (1995).
There was no basis in the record to find that tiling work allowed such avoidance. In fact, the evidence indicated that it did not. See (Tr. 25, lines 7-9, 26, 18-19, 38, 20-24; Tr. 48-51; Tr. 53, lines 17-18; Tr. 58, lines 25, Tr. 59, lines 12-19; Tr. 63, lines 12-15 ; Tr. 64-66.)
Where crucial and material findings are made without evidentiary support, the error resulting therefrom is not harmless and renders the ultimate decision both arbitrary and capricious.Bursaw v. B. P. Oil Co., 8 Mass. Workers' Comp. Rep. 176, (1995). We, therefore, reverse the judge's finding that the employee could return to his former work. The unrebutted prima facie opinion of the § 11A doctor is that he cannot. We remand for the judge to make subsidiary findings on the extent of incapacity based on how the employee's residual physical limitations and permanent partial medical disability impact on his ability to earn remunerative wages within his ability to perform applying the factors as set forth in Scheffler's Case, 419 Mass. 251, 256 (1994).
When an employee works and is injured on a public construction job, to properly determine a contested average weekly wage both G.L.c. 152, § 1 (1) must be considered together with G.L.c. 149, § 26 and § 27. The failure to do so here was error.
Section 26 of G.L.c. 149 provides in pertinent part:
Payments by employers to health and welfare plans, pension plans and supplementary unemployment benefit plans under collective bargaining agreements or understandings between organized labor and employers shall be included for the purpose of establishing (the) minimum wage rates. . . .
G.L.c. 149, § 26 (as amended by St. 1991. c. 552, § 94) (emphasis added).
General laws chapter 149, § 27 provides in pertinent part:
The aforesaid rates of wages in the schedule of wage rates shall include payments by employers to health and welfare plans, pension plans and supplementary unemployment benefit plans as provided in said Section twenty-six, and such payments shall be considered as payments to persons under this section performing work as herein provided. Any employer engaged in the construction of such works who does not make payments to a health and welfare plan, a pension plan and a supplementary unemployment benefit plan, where such payments are included in said rates of wages, shall pay the amount of said payments directly to each employee engaged in said construction.
G.L.c. 149, § 27 (as amended by St. 1993, c. 110, § 173) (emphasis added).
Section 1 (1) governing the calculation of average weekly wage provides in pertinent part:
Except as provided by sections twenty-six and twenty-seven of chapter one hundred forty-nine, such fringe benefits as health insurance plans, pensions, day care, or education and training programs provided by employers shall not be included in employee earnings for the purpose of calculating average weekly wages under this section.
The judge incorrectly construed §§ 26 and 27 as applying only where some workers on a project are members of labor unions and others are not.
Sections 26 and 27 of G.L.c. 149 are part of a comprehensive legislative enactment which, inter alia, requires the commissioner of labor and industries to set a minimum per capita wage for workers doing certain public construction jobs. Constr. Indus. of Mass. v. Comm'r. of Labor and Indus., 406 Mass. 162, 167-168 (1989). Otherwise known as the "prevailing wage" statutes, they reflect a legislative policy that the "wages of employees on certain public jobs, . . . shall not be less than the wages earned by unionized employees." Id. at 172. These sections apply to all covered employees, whether all persons on a particular job are in a union or whether some are not. Id. (discussing wages of "employee" without limiting term).
Both § 26 and § 27 of c. 149 specifically require that employer payments for health and welfare plans, pension plans, supplemental unemployment benefits plan[s] shall be included for purposes of determining the minimum wage rates for any such job. Therefore, such payments must be considered part of employees' earnings for purposes of computing their average weekly wage under § 1 (1) of the Workers' Compensation Act. Lyons v. Fontaine Bros., 4 Mass. Workers' Comp. Rep. 398, 399 (1990); Machado v. Joseph B. Fay Co., 3 Mass. Workers' Comp. Rep. 38, 40 (1989). The proper rate is calculated by including the additional employer payments in the gross pay. Id.
As the language of the relevant provisions in G.L.c. 152 and G.L.c. 149 is clear and unambiguous, the plain meaning of the language must be given effect. Id. at 167, [citing Telesetsky v. Wright, 395 Mass. 868, 872 (1989)]. The third harbor tunnel is undoubtedly a public works project governed by §§ 26 and 27 of chapter 149. See Exhibits A, B, C, (attached to employee's memorandum and undisputed by the insurer). The position of tile setter and grouter is one of the jobs under the purview of § 26.Receiver of the Boston Hous. Authy. v. Comm'r. of Labor and Indus., 396 Mass. 50, 60 n. 15 (1985). We, therefore, reverse the average weekly wage determination and recommit for a determination of the prevailing wage set by the Commissioner of Labor for the job of a tile setter on the employee's date of injury.
We recommit for further findings consistent with this opinion. The insurer is to pay $1,117.85 in legal fees to employee's counsel.
So ordered.
_________________________ Susan Maze-Rothstein Administrative Law Judge
_________________________ William A. McCarthy Administrative Law Judge
_________________________ Suzanne E.K. Smith Administrative Law Judge
Filed: May 21, 1997