Opinion
BOARD No. 02644689
Filed: December 28, 1998
REVIEWING BOARD DECISION
(Judges McCarthy, Smith Wilson)
APPEARANCES
Robert F. Gabriele, Esq., for the employee.
Paul M. Scannell, Esq., for the insurer.
Maria Miranda appeals a decision in which an administrative judge allowed the insurer's complaint for discontinuance of weekly incapacity benefits. One issue argued by the employee has merit — that the judge made a material finding that was wholly without evidentiary support. We agree, reverse the decision, and recommit the case.
The employee sustained an industrial injury to her neck and back on June 8, 1989, for which she received partial incapacity benefits by a decision of an administrative judge. Later the insurer filed a complaint to discontinue or reduce weekly incapacity benefits. In a corrected conference order dated November 21, 1995, an administrative judge authorized the discontinuance of weekly incapacity benefits. (Dec. 2.) The employee appealed to a full evidentiary hearing.
At hearing, the employee testified through an interpreter that she was incapacitated from working due to headaches and back pain. The judge made the following subsidiary findings of fact that are the focus of the dispositive issue on appeal: "Although she claims to not have worked since the industrial accident, the employee has not applied for SSDI, welfare or any other form of assistance. She claims that she has gotten by on the § 35 benefits plus a series of loans from `a man' to whom she owes `a lot of money.' I find this testimony to be not credible and infer that the employee has another source of money for her support." (Dec. 4.) The judge concluded, "I did not find her testimony that she was able to support herself by loans from `a man' credible and infer that she has an undisclosed source of funds which is likely to be some form of gainful employment." (emphasis supplied) (Dec. 6.) The judge also adopted the impartial medical examiner's opinion that the employee magnified her symptoms, even though she did experience a residual impairment from the 1989 industrial injury. (Dec. 4, 6.) The judge therefore concluded that the employee was capable of returning to her former position, and allowed the insurer's request for discontinuance of benefits. (Dec. 6.) The employee appeals to the reviewing board.
The employee contends that the judge's inference of her presently engaging in "some form of gainful employment" is without a scintilla of evidentiary support. The contention has merit. Subsidiary findings of fact made without evidentiary support in the record are arbitrary and capricious. While a judge may draw inferences from the evidence, such inferences must be within the bounds of reason and not speculative. "The permissible drawing of an inference . . . is a process of reasoning whereby from facts admitted or established by the evidence, including expert testimony, or from common knowledge and experience, a reasonable conclusion may be drawn that a further fact is established." Semerjian v. Stetson, 284 Mass. 510, 514 (1933).
Where the inference drawn by the judge is but one of a number of equally plausible scenarios, it is unsupportable. See L. Locke, Workers' Compensation § 505, at 605, 608 (2d ed. 1981). Thus, in Sanderson's Case, 224 Mass. 558 (1916), where, unwitnessed, the employee fell from a wagon and subsequently died from hemorrhaging, the trier of fact found that Sanderson had suffered a work-related injury by reason of being thrown from the wagon. The fact finder concluded, by inference, that the fall caused the hemorrhage rather than the hemorrhage caused the fall. In reversing that conclusion, the reviewing court held that "[the judge] is permitted to draw such inferences from the evidence and all the circumstances as a reasonable man could draw, but [the judge's] findings cannot properly be based merely upon conjecture or speculation." Id. at 561.
While it is the prerogative of the judge to find some or all of Miranda's testimony not credible, there is absolutely no evidence to support the judge's inference that Miranda is probably employed. Since this arbitrary finding is inextricably entwined in the judge's analysis of the employee's earning capacity, we must reverse the decision and recommit the case for further proceedings compatible with this opinion.
So ordered.
________________________ William A. McCarthy Administrative Law Judge
________________________ Sara Holmes Wilson Administrative Law Judge
________________________ Suzanne E.K. Smith Administrative Law Judge
FILED: December 28, 1998