Opinion
BOARD Nos. 2588589, 0344195
Filed: November 17, 1997
REVIEWING BOARD DECISION (Judges Smith, Maze-Rothstein and McCarthy)
APPEARANCES
Brian C. Cloherty, Esq., for the employee
Gregory F. Galvin, Esq., for the insurer
The self-insurer appeals from the decision of an administrative judge, which found that the employee suffered an aggravation of an underlying condition and awarded a closed period of § 34 temporary total incapacity benefits and ongoing § 35 partial incapacity benefits. We conclude that the administrative judge properly authorized the submission of additional medical evidence under G.L.c. 152, § 11A(2) by way of report with curricula vitae. However, because the date chosen by the judge to reduce the employee's benefits is not based on any change in the employee's medical or vocational condition, the reduction on that date was arbitrary and capricious. We reverse that determination and recommit the case for further findings on the nature and extent of incapacity.
Joan Monet was forty seven years old at the time of hearing. Both a licensed practical nurse (LPN) and registered nurse (RN), she worked for this employer from 1982 until her 1995 injury. (Dec. 4-5.) Monet was originally injured in an industrial accident on April 19, 1989, which left her with neck, left arm and head pain, as well as numbness. The injury was accepted and she received weekly incapacity benefits for the three years she was out of work. Although her symptoms did not completely resolve, she returned to work in a light duty capacity as a Utilization Review Clerk. This job involved physical activity such as carrying boxes of charts and documents, reaching, bending and walking throughout the hospital. Because this work caused pain and muscle spasm, she worked only four days a week with Wednesdays and weekends off. (Dec. 4-5.)
On January 24, 1995, Monet experienced sharp pain from her neck down to her left hand when she pulled down a chart. The pain so distracted her that she walked into a wall telephone while leaving the hospital. The following day she was unable to get out of bed, move her neck or lift her left arm. She has not worked since that day. She sees Dr. Arthur Carriere, an orthopedic surgeon, who treats her conservatively as he has since her 1989 injury. (Dec. 6.)
Monet filed a claim for benefits, which the self-insurer denied. Following a § 10A conference denial, Monet appealed to a hearing de novo and a § 11A impartial medical examination was conducted by Dr. John McConville. At the close of lay testimony, the administrative judge found the impartial report inadequate and the issues complex, and therefore allowed additional medical evidence. Monet submitted the August 8, 1996 narrative report of her treating physician, Dr. Carriere. (Dec. 1-2, 7.)
After specifically rejecting the opinion of the impartial medical examiner that no current disability existed, (Dec. 7), and expressly adopting the opinion of the employee's treating physician that her disability was total (Dec. 8), the judge made the following subsidiary findings.
I find that the employee's work injury of January 24, 1995 was a severe aggravation of her initial work injury of April 19, 1989.
I find based on the credible and sincere testimony of Ms. Monet that it is difficult for her to drive, turn her head and to lift anything with her left arm and I find that the employee has a very limited range of cervical motion.
I find that the employee finds it very difficult to drive a car as she is barely able to turn her neck to the left or to the right.
I find based on her credible testimony that the employee can move her neck barely at all.
I find that the employee's symptoms have been more severe since her injury at work of January 24, 1995.
I find that based upon her economic condition that the employee has a strong motivation to work and that she would be working if she felt she could.
(Dec. 9-10).
Based on these findings, the judge ordered the self-insurer to pay § 34 temporary total incapacity benefits from January 25, 1995 to August 8, 1996, and § 35 temporary partial incapacity benefits thereafter. The self-insurer raises several issues on appeal. We address each issue in turn.
First, the self-insurer contends that the judge erred as a matter of law in allowing additional medical evidence. We disagree. Section 11A(2) vests the administrative judge with the discretionary authority to "authorize the submission of additional medical testimony when such judge finds that said testimony is required due to the complexity of the medical issues involved or the inadequacy of the report submitted by the impartial examiner." G.L.c. 152, § 11A(2), as appearing in St. 1991, c. 398, § 30. The legislative intent of this language is to provide a release valve for the otherwise tight control of medical evidence provided by § 11A. Dupras v. Walter Div. of Millipore, 10 Mass. Workers' Comp. Rep. 1, 4 (1996).
Section 11A(2)'s discretionary grant of power functions to afford a workers' compensation claimant the opportunity fairly to present the medical issues she considers favorable to her claim.O'Brien's Case, 424 Mass. 16, 22 (1996). "[I]f the judge performs [his] function correctly [under § 11A(2)], the parties will be granted the . . . [opportunity to present additional medical testimony] where this . . . testimony would serve some legitimate function." Id.
Our review of a judge's ruling on a motion to allow additional medical evidence is limited to whether the judge's discretionary action was arbitrary and capricious, contrary to law, or inadequate for proper appellate review. G.L.c. 152, § 11C; Dupras, supra; see Coggin v. Massachusetts Parole Bd., 42 Mass. App. Ct. 584, 588 (1997). We do not find it appropriate in this case to recommit for further findings of fact on the motion, despite the fact that the judge did not issue subsidiary findings to support his conclusions of inadequacy and complexity. We agree with the Coggin court, which confronted an identical problem:
It would have been preferable for the judge to articulate the basis for his conclusion. Indeed, the Supreme Judicial Court "ha[s] previously indicated that the board should make such specific and detailed subsidiary findings as will enable the reviewing court to determine with reasonable certainty whether correct rules of law have been applied. . . . [T]his principle, [however, is not] intended to . . . regulate the precise form of the board's decision." McElroy's Case, 397 Mass. at 746, citing Messersmith's Case, 340 Mass. 117, 120 (1959).
Coggin, 42 Mass. App. Ct. at 588, n. 7. In this case, as in Coggin, the record provides an adequate basis for us to determine whether the administrative judge abused his discretion in admitting additional medical evidence pursuant to the statute. Therefore recommittal for further findings would further no appropriate judicial purpose.
We find no abuse of discretion here. The employee testified that the impartial medical examiner's physical examination took only two minutes (Tr. 55, 134) and that his interview took five minutes. (Tr. 117.) The employee further disputed portions of the history contained in the impartial medical examiner's report, denying that she had ever told the doctor that she was ready to return to work. (Tr. 53-55.) The judge obviously believed her testimony as he explicitly found that she was "credible" and "sincere." (Dec. 9.) Under such circumstances, it was not whimsical or irrational for the judge to find that the allowance of additional medical evidence would serve the legitimate function of accurate decision making. On this record, an administrative judge could rationally determine that the impartial medical examiner's report was inadequate by the examiners' misunderstanding of the employee's history, or by a too cursory physical examination. SeeCoggin, supra at 588-589 (allowance of additional medical evidence affirmed where possibility that it was tainted by misunderstanding of the proper scope and purpose of the examination).
The self-insurer next argues that the judge erred in allowing the additional medical evidence to be in the form of a report, rather than testimony. We disagree. Department Rule 1.11 (6) specifically provides for the report's admission:
At a hearing pursuant to M.G.L.c. 152, § 11 . . . in which the administrative judge has made a finding under M.G.L. c. 152, § 11A(2) that additional testimony is required due to the complexity of the medical issues involved or the inadequacy of the report submitted by the impartial medical examiner, a party may offer as evidence medical reports prepared by physicians engaged by said party, together with a statement of said physician's qualifications. The administrative judge may admit such medical report as if the physician so testified. . . .
452 CMR 1.11 (6). The judge acted properly in accepting into evidence the treating physician's report with his curricula vitae.
As its last issue, the self-insurer argues that using the August 8, 1996 date to reduce the employee's benefits from § 34 total compensation to § 35 partial compensation was error because, although Dr. Carriere's report was dated August 8, 1996, it does not state that the doctor examined Monet on that day. We agree, for different reasons, that the judge erred in reducing compensation on this date.
"The goal of disability adjudication is to make a realistic appraisal of the medical effect of a physical injury on the individual claimant and award compensation for the resulting impairment of earning capacity, discounting the effect of all other factors." Scheffler's Case, 419 Mass. 251, 256 (1994), quoting L. Locke, Workmen's Compensation § 321, at 375-376 (2d ed. 1981). The judge was required to determine whether and when the employee first regained the physical capacity to perform remunerative labor. At that point, he had to consider the work limitations caused by the injury, together with the employee's vocational assets, and decide how much the employee was able to earn. Saracino v. Commonwealth of Mass., 8 Mass. Workers' Comp. Rep. 422, 426 (1994). Only then could the judge order a change in the level of weekly wage replacement benefits. G.L.c. 152, §§ 34 and 35.
Findings as to when incapacity, whether total or partial, begins, changes or ends must be rationally anchored in the credible evidence. Ortiz v. N.A.A.C.O. 10 Mass. Workers' Comp. Rep. 324, 327 (1996). The necessary evidence can be medical or vocational. D'Angeli v. McDonald's Restaurant, 1 Mass. Workers' Comp. Rep. 193, 195 (1987). No labor market evidence was offered and Monet's testimony, which the judge found credible, does not support a change in her incapacity status on August 8, 1996.
The only evidence relating to the chosen date is Dr. Carriere's report in which he states, "She has had no significant change in any of her symptoms." (Employee Ex. 2.) Dr. Carriere goes on to state that he believes that she has been totally disabled since January, 1995. His report, which does not evidence any improvement in the employee's medical condition, cannot support a reduction in the employee's benefits. Keith v. Wequasset Inn, 11 Mass. Workers' Comp. Rep. ___, slip op. at 4 (October 17, 1997).
Because the change in the level of compensation on a date that bears no connection to any factor relevant to establish the employee's incapacity is arbitrary and capricious, we reverse the modification order and recommit the case to the hearing judge for further findings on the nature and extent of incapacity during the claim period. In light of the passage of time during the pendency of the appeal, the judge may take whatever additional evidence is necessary to render a just decision. In all other aspects the decision of the administrative judge is affirmed. So ordered.
__________________________ Suzanne E. K. Smith Administrative Law Judge
__________________________ Susan Maze-Rothstein Administrative Law Judge
__________________________ William A. McCarthy Administrative Law Judge
Filed: November 17, 1997