TheMcCann court specifically noted: The Appeals Court recognized this and so limited the holding ofBallard in Mulcahey's Case, 26 Mass. App. Ct. 1, 4 (1988): Ballard's Case falls within the principles represented by such cases as Messersmith's Case, 340 Mass. 117, 120 (1959), and Camaioni's Case, 7 Mass. App. Ct. 927 (1979), regarding the inadequacy of a mere recitation of testimony in place of proper fact-finding, and such cases as Whitaker's Case, 354 Mass. 4, 5 (1968), and Wajda's Case, 6 Mass. App. Ct. 865 (1978), regarding the defectiveness of an ultimate finding which conflicts with testimony specifically found credible or uncontradicted testimony not discredited by the board.
Appellate court standards for reversal or recommittal are consistent with reviewing board cases applying the part of § 11C. See Ballard's Case, 13 Mass. App. Ct. 1068, 1069 (1982);Mulcahey's Case, 26 Mass. App. Ct. 1 (1988). The § 11A examiner opined that the employee could perform "work that would allow him to sit as much as he wanted, but he could stand at times and move back and forth between those two positions according to his back symptoms."
Percival's Case, 268 Mass. 50, 54 (1929). Mulcahey's Case, 26 Mass. App. Ct. 1, 3 (1988). Sylva's Case, 46 Mass. App. Ct. 679, 681-682 (1999).
(Dec. 5.) See Mulcahey's Case, 26 Mass. App. Ct. 1, 3 (1988); see G.L.c. 152, § 35D(4). The judge's decision meets the test of reasoned decision making as set forth in Scheffler'sCase, 419 Mass. 251, 257 (1994).
Where, as here, neither party submitted any vocational evidence, the administrative judge could rely upon his "own judgment and knowledge" in calculating earning capacity. See, e.g., Mulcahey's Case, 26 Mass. App. Ct. 1, 3 (1988). However, as we recently made clear with Dalbec's Case, supra at 317, "[a] monetary figure cannot emerge from thin air and survive judicial review as a mystery."
"[I]n the absence of testimony as to the earning capacity of the employee, the [administrative judge is] entitled to use [his or her] own judgment and knowledge in determining that question." Mulcahey's Case, 26 Mass. App. Ct. 1, 3 (1988), quoting O'Reilly's Case, 265 Mass. 456, 458 (1929). The administrative judge stated in his decision that he accepted Dr. Geuss's conclusion that as of February 9, 1993, the employee was only partially disabled from his work-related injury. Implicit in Dr. Geuss's evaluation was the notion that the employee had the ability to engage in at least some sort of gainful employment.
"The burden of proving incapacity rests with the employee, [citation omitted] even where compensation has been awarded and the insurer is applying for discontinuance[.]" Mulcahey's Case, 26 Mass. App. Ct. 1, 3 (1988). The sole medical evidence on physical impairment in this case was a conclusion that, despite the limitations on the use of the left arm, the employee was capable of sedentary work.
(Dec. 11.) See Mulcahey's Case, 26 Mass. App. Ct. 1 (1988); Nicholson v.Consolidated Freightways, 11 Mass. Workers' Comp. Rep. 119 (1997). The judge determined that to find a filing job available in the general labor market paying more than $23.00 per hour would be erroneous, as such wages were an anomaly, in the nature of a gratuity and, therefore, should have no impact on the analysis of earning capacity.
Under those circumstances, the judge was free to use her own judgment and knowledge in determining that question.Mulcahey's Case, 26 Mass. App. Ct. 1, 3 (1988), citing O'Reilly'sCase, 265 Mass. 456, 458 (1929); Percival's Case, 268 Mass. 50, 54 (1929); Royal's Case, 286 Mass. 374, 377 (1934); and Nowack'sCase, 2 Mass. App. Ct. 498, 500 (1974). We recognize that a judge sitting in a particular community gains expertise in the vocational opportunities that there exist through testimony in numerous cases.
Furthermore, other than the judge's statement that he does not find the employee to be a particularly credible or motivated witness, there is no indication as to what, if any, aspects of the employee's testimony regarding his physical capabilities and ability to work the judge did credit. While a judge has considerable discretion and may use his own judgment in determining the amount of an employee's earning capacity, Mulcahey's Case, 26 Mass. App. Ct. 1, 3 (1988), he must support the determination with adequate subsidiary findings grounded in the evidence. Beagle v. Crown Serv. Sys., Inc., 10 Mass. Workers' Comp. Rep. 282, 284 (1996).