Opinion
BOARD No. 00851892
Filed: May 20, 1998
REVIEWING BOARD DECISION
(Judges Maze-Rothstein, McCarthy and Smith).
APPEARANCES
Brian Hodson, Esq., for the employee at hearing.
Frederick C. Homan, Esq., for the employee on brief.
Lisa S. Molodec, Esq., for the insurer.
The employee appeals a decision that awarded him § 35 temporary partial incapacity weekly benefits instead of the § 34A permanent and total incapacity benefits he claimed. Because we agree that the earning capacity determination is inadequate we recommit the case for further findings.
Timothy Moreau, forty years old at the time of the hearing, is married with one infant child. He graduated from high school and attended two years of college. He worked for his employer as a trash collector. Working alone, he drove the truck to each collection site, stopped, got out, jumped approximately eighteen inches to the ground and walked to the back. He then emptied trash containers into the back of the truck. He repeated these tasks "countless times" each day. (Dec. 520.)
Moreau Brothers Trucking Company, the employer, is a family owned business. The employee has no ownership interest in the company. (Dec. 520.)
On February 4, 1992 Moreau jumped from the truck to the ground and felt immediate back pain. He sought medical treatment the next day. In March, 1992 he underwent surgery to remove a disc fragment. He missed twelve weeks of work. (Dec. 520-522.)
Moreau returned to work for three to four weeks before his back pain resumed. He went out again. He underwent a second surgery in January, 1993 and returned to work in May, 1993. In April, 1994 the pain recurred and he left work for the last time. In August, 1994 he underwent a third back surgery. A fourth surgery has been recommended, but the employee has declined it. The judge credited that the employee generally experiences pain at a level five, on a scale of one to ten, with intermittent escalations to level eight or nine. (Dec. 521.)
The insurer accepted liability and paid § 34 total temporary incapacity benefits until they were exhausted. (Ir. Brief 1.) Thereafter, the employee filed a claim for § 34A permanent and total incapacity weekly benefits, which the insurer resisted. The permanent and total benefits sought were awarded after a § 10A conference. The insurer appealed to a hearing de novo. (Dec. 519.) The employee was examined by a § 11A physician, who diagnosed a chronic recurrent herniated disc with three excisions and causally related the diagnosed condition to the 1992 work injury. The doctor, whose opinion the judge adopted, stated that the employee was permanently partially disabled. He could not repetitively lift over ten pounds, or engage in prolonged sitting, standing, kneeling, crawling or squatting. The doctor believed that the employee should be allowed to change positions frequently and should not climb ladders. (Dec. 522.)
The judge concluded his decision with the following general finding.
I find that the employee is partially disabled due to his 1992 work injury. In making this determination, I rely on the credible testimony of the employee, and the opinions of Dr. Robert A. Provost, Jr. whose impartial medical report I find to be fully adequate within the meaning of § 11A. The employee's description of his pain, and his difficulty in performing many tasks was credible. However, he also admitted to being able to perform many tasks, such as washing dishes and laundry, and changing his infant's diapers. Dr. Provost finds an ongoing significant impairment which severely limits the employee's ability to work. But, it does not completely foreclose the employee's opportunity to find employment of a non-trifling nature. The employee can, at least, work part time for minimum wage. The requirements of § 35 dictate that I assign an earning capacity of not less than $172.71. This is the equivalent of working twenty hours at $8.64 an hour or, perhaps more realistically, $5.76 and [sic] hour for thirty hours.
(Dec. 522-23.)
The employee appeals arguing that the findings in support of an earning capacity are inadequate. We agree.
"The determination of loss of earning capacity involves more than a medical evaluation of the employee's physical impairment. Physical handicaps have a different impact on earning capacity in different individuals. Education, training, age, and experience affect the ability to cope with the physical effect of injury."Scheffler's Case, 419 Mass. 251, 256 (1994). Though there was testimony offered, the decision is silent on the employee's prior work history. (Tr. 7-10.) Lacking those basic findings it follows that the decision does not analyze how the employee's age, education, training and work experience combine with his residual medical condition to warrant the earning capacity assigned.
In reaching his conclusion on earning capacity the judge seems to have substituted home activities findings for a vocational assessment, i.e. "[h]e can do some things around the house such as washing dishes and the laundry, changing diapers and cooking on a grill." (Dec. 521.) However, the judge should have determined whether the employee has the capacity to perform substantial work of a non-trifling nature on the open labor market for remunerative wages. "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 . . . ." Scheffler, supra at 256. This includes consideration of the "nature of the job[s]" the employee has held, "seniority status, the attitudes of personnel managers . . . the business prospects of the employer, and the strength or weakness of the economy [which can] also influence an injured employee's ability to hold a job or obtain a new position." Id.; Frennier's Case, 318 Mass. 635, 639 (1945). The fact that the employee is able to perform some household tasks cannot substitute for a vocational analysis. Nor can we see that these specific household chores ineluctably equate with a non-trifling capacity to earn.
Moreover, the § 11A doctor also opined that a medical end result had been reached, that further surgery would not bring about improvement and even if the employee underwent another surgery he would be unable to return to his prior job. (Statutory Exhibit 1.) Given this opinion, the employee's credited testimony on pain and difficulty in performing many tasks and the absence of a true vocational measure, we are unable to discern how the earning capacity even in the minimum wage category evolved.
Further, it is not clear that the judge recognized the proper legal standard for determining a non-trifling earning capacity. See Frennier's Case, supra at 639. The judge weighed the employee's pain but did not find that it totally prevented work activity. (Dec. 521-522.) He found that the employee "describes his usual pain as a five on the one to ten scale. It can go as high as eight or nine." (Dec. 521.) The judge adopted the impartial medical examiner's opinion that Moreau's permanent impairment severely limited his ability to work. (Dec. 522.) After weighing all the medical and vocational evidence, he concluded that the employee's condition did not completely foreclose him from non-trifling employment. Id.
To have a substantial and non-trifling work capacity, an employee must have a continuing and steady ability to perform work. Zakon v. Metropolitan Life Ins. Co., 328 Mass. 486, 490 (1952). The sporadic ability to perform work activities that one could not rely upon to a substantial degree for a livelihood will not defeat entitlement to total incapacity benefits. Id.; seeShirley's Case, 355 Mass. 308, 311 (1969). In order to be competitive in the labor market, one must have a reliable ability to show up for and perform work. If Moreau's pain is of such an intense and fluctuating character that it prevents reliable job attendance and performance, then he could be awarded total incapacity benefits. On recommittal, the judge should make further findings on whether it is more probable than not that Moreau lacks "the ability to engage in a continuing and steady, rather than occasional, occupation or employment for wage or profit on which he can `rely to a substantial degree for a livelihood.'" Herrera v. Cambridge Imported Autobody, 11 Mass. Workers' Comp. Rep. ___ (October 17, 1997), quoting Boss v. Travelers Ins. Co., 296 Mass. 18, 23 (1936).
Our standard of review, set forth in § 11C, expressly permits recommittal for further findings where appropriate. SeeBeagle v. Crown Serv. Sys., Inc., 10 Mass. Workers' Comp. Rep. 282, 284 (1996) (earning capacity determinations are meaningless without adequate supporting subsidiary findings which are grounded in the evidence); Faille v. U.S. Concrete, 11 Mass. Workers' Comp. Rep. 473, 476 (1997) (the judge's conclusions must be adequately supported by sufficient definite and specific subsidiary findings). This is such a case.
As written, this case is appropriate for recommittal for further earning capacity findings. See G.L.c. 152, § 11C.
So ordered.
_____________________ Susan Maze-Rothstein Administrative Law Judge
_____________________ William A. McCarthy Administrative Law Judge
Filed: May 20, 1998
I agree that recommittal is appropriate for one the reasons given by the majority. The findings raise the question of whether the judge applied the correct legal standard in determining a non-trifling work capacity. The decision cannot stand for another reason raised by the employee. The judge changed the level of incapacity on a date when nothing about the employee's medical or vocational condition changed. Because the change in the level of incapacity is arbitrary and capricious, and contrary to law, the decision should be reversed and the case recommitted for a new decision based on correct legal principles. G.L.c. 152, § 11C.
I disagree that recommittal for further vocational findings is appropriate. There is no need for findings of fact for which there is no basis in the record evidence. In reviewing a decision for adequacy of fact finding, the reviewing board must keep in mind that an employee has the burden to persuade the judge that the competitive labor market contains no work that he can perform and obtain. See Connolly's Case, 41 Mass. App. Ct. 35, 36 (1996). The judge's decision need only be sufficiently detailed to allow the reviewing board to determine with reasonable certainty whether the judge applied correct rules of law to facts well grounded in the evidence. See DiClavio's Case, 293 Mass. 259, 261-262 (1936). In most respects, this decision passes that test.
Although the decision omits some details about the employee's work experience prior to his most recent job, this prior work was of the same nature as that described in the decision. See (Tr. 8-10 and 26-30.) Thus it is improbable that its lack of exposition in any way affected the judge's reasoning process, which the decision clearly set forth. The omission was harmless error.
The judge made detailed findings indicating the range and types of activities of which Moreau is physically capable. (Dec. 4 Bean 522-523). See Ballard's Case, 13 Mass. App. Ct. 1068 (1982). The judge did not err in considering Moreau's home activities. They shed light on the extent of his physical capabilities for activities commonly performed for pay in the competitive labor market such as dishwashing, cooking, and childcare. See Mulcahey's Case, 26 Mass. App. Ct. 1, 2 (1988) (discussion of judge's findings about home activities such as driving, housecleaning, shopping).
The judge made specific findings about Moreau's age (40), education (two years of college), and the type of labor he had performed (heavy physical work). (Dec. 4 Bean 520). Moreau did not present any labor market evidence. Instead he contended that he lacked the medical ability to do any remunerative work. (Tr. 23, 39.)
The evidence does not compel a conclusion that Moreau is unable to engage in any occupation, or obtain or perform any work for compensation or profit. Rather, the evidence on the extent of incapacity is conflicting. The impartial physician's opinion, which the judge properly adopted, rationally supports the finding of an ability to perform some remunerative employment. (Dec. 4 Bean 522.) On this state of the evidence, the judge was not obliged to find that Moreau was totally rather than partially incapacitated. Mulcahey's Case, supra. However, I concur in the majority decision that further findings of fact are appropriate about whether the nature and extent of the employee's pain prevents him from being a reliable and productive employee. Only in that way can we be assured that the judge applied the correct legal definition of work capacity.
The employee correctly contends that the decision contains another flaw. The date chosen by the judge to reduce Moreau's benefits was arbitrary and capricious, and contrary to law. Moreau presented evidence of a chronic continuing condition. He claimed § 34A permanent and total incapacity benefits from the date he exhausted his § 34 temporary total compensation benefits. Nothing of significance occurred on the date of the impartial examination. The employee, who has the burden of proving the nature and extent of his incapacity throughout the period of his claim, is either entitled to § 35 partial compensation or § 34A permanent and total compensation. The record will not support a change in benefit levels during the period in dispute here. See Monet v. Massachusetts Respiratory Hosp., 11 Mass. Workers' Comp. Rep., slip op. at 6-7 (November 17, 1997).
At conference, the judge awarded § 34A permanent and total incapacity benefits beginning on March 1, 1996. At hearing, he reduced the employee's benefits to § 35 partial incapacity benefits as of July 10, 1996, the date of the impartial examination
For these reasons, it is my opinion that the decision should be reversed and the case recommitted for a new decision consistent with these legal principles.
_____________________ Suzanne E.K. Smith Administrative Law Judge