Opinion
BOARD No. 4524-94
Filed: June 5, 1996
REVIEWING BOARD DECISION
(Judges Kirby, Smith and Maze-Rothstein)
APPEARANCES:
Thomas F. Grady, Esquire, for the employee
David O'Connor, Esquire, for the insurer
The employee appeals from an administrative judge's decision denying his claims for compensation on the basis that numerous factual and legal errors render the decision arbitrary, capricious and contrary to law. We find it appropriate to recommit for further findings consistent with this opinion.
The employee, a store manager, claimed workers' compensation benefits under G.L.c. 152 for injuries to his low back and right leg, sustained when he slipped and fell on some stairs in the course of his employment on January 26, 1994. The self-insurer paid G.L.c. 152, § 35 partial incapacity benefits from January 27, 1994 to April 25, 1994 when it terminated payments within the pay-without-prejudice period. The employee then filed a claim for initial liability on May 24, 1994 seeking § 34 temporary total incapacity compensation.
In addition to filing the workers' compensation claim, the employee filed a claim for Social Security Disability benefits. Mr. Nelson had several pre-existing neurological non-work conditions for many years, including migraine headaches, fatigue, seizures, short-term memory loss, sleep disorder and mood swings. (Dec. 10, 11.) His claim for Social Security benefits was both for his pre-existing conditions and for those conditions attributable to the January 26, 1994 work-related incident for which he was claiming benefits under G.L.c. 152. Id.
Following an October 18, 1994 conference on the employee's claims under §§ 34 and 30, the judge filed an order on October 31, 1994 awarding § 34 temporary total weekly compensation and related medical benefits prospectively from October 18, 1994 and continuing. The employee and the self-insurer cross-appealed from the conference order, seeking hearing de novo.
Dr. Howard Gardner examined the employee pursuant to G.L.c. 152, § 11A on December 13, 1994, and filed reports on that date and on December 30, 1994. The evidentiary hearing was conducted on March 9, 1995. The parties deposed Dr. Gardner on May 1, 1995.
On May 23, 1995, the judge filed his decision and found that the employee sustained a personal injury consisting of low back pain radiating to his right great toe arising out of and in the course of his employment on January 26, 1994, but denied the employee's claims for either weekly compensation or medical treatment subsequent to April 25, 1994, the date the self-insurer terminated voluntary payments under the pay without prejudice provisions of G.L.c. 152, § 8(1). (Dec. 13.) The judge, adopting Dr. Gardner's § 11A opinion, found no objective evidence of neurological disability or any other disability after December 13, 1994, the date of the examination. The judge further found no entitlement to § 36 disfigurement or loss of function benefits and ordered the self-insurer to recoup overpayment of § 34 weekly compensation paid in accordance with the October 31, 1994 conference order. (Dec. 14.)
The employee appeals from this decision and seeks a hearing de novo before a different administrative judge arguing that the decision is replete with error, we find the decision in its present form inadequate for proper appellate review because it does not reveal how the judge reached his ultimate conclusions, as certain subsidiary findings are mutually inconsistent or erroneous. Under these circumstances, we find it appropriate to remand the case for further findings.
1. ISSUES IN CONTROVERSY-INCONSISTENT FINDINGS
A judge must follow the requirements of § 11B and identify the issues in controversy, decide each issue and give a brief statement of the grounds for each such decision in his subsidiary and general findings. G.L.c. 152, § 11B. The findings must be set forth in a manner that will enable the reviewing board to determine whether correct principles of law have been applied to facts that could properly be found. See Praetz v. Factory Mut. Eng'g Research, 7 Mass. Workers' Comp. Rep. 45, 46-47 (1993). Where essential findings are lacking, imprecise, or internally inconsistent, the decision cannot stand. Id.; See Crowell v. New Penn Motor Express, 7 Mass. Workers' Comp. Rep. 3, 4 (1993).
The decision reveals two findings which are mutually inconsistent: 1) the judge stated that the insurer was contesting initial liability (Dec. 2) and yet also stated 2) that the parties stipulated to the occurrence of a compensable industrial injury. (Dec. 3.) The employee contends the parties merely stipulated to the date of the alleged injury without addressing its compensability. (Employee's Brief, 22-23; Tr. 5.) On remand, the judge must make clear and specific findings on what issues were in dispute at hearing and what issues were stipulated.
Further, the judge found that the employee sustained a work-related injury, and yet did not award a fee and reimbursement of expenses to the employee's counsel. Where an employee prevails at hearing after an insurer contests a claim for benefits, the insurer shall pay a fee plus expenses to the employee's attorney. See Brandao v. Joseph Pollack Corp., 9 Mass. Workers' Comp. Rep. 74, 75 (1995); G.L.c. 152, § 13A(5).
General Laws c. 152, § 13A(5) provides in pertinent part:
Whenever an insurer files a complaint or contests a claim for benefits and then either (i) accepts the employee's claim or withdraws its own complaint within five days of the date set for a hearing pursuant to section eleven; or (ii) the employee prevails at such hearing the insurer shall pay a fee to the employee's attorney in an amount equal to three thousand five hundred dollars plus necessary expenses. An administrative judge may increase or decrease such fee based on the complexity of the dispute or the effort expended by the attorney. The $3500 fee has since been increased.
G.L.c. 152, § 13A(5) As amended by St. 1991, c. 398, § 35.
Here the insurer disputed liability by denying an industrial injury in its cross-appeal from the conference order. If the judge finds on remand that the issue of initial liability was adjudicated at hearing and not stipulated, the employee has established entitlement to a counsel fee and reimbursement of expenses under § 13A(5). See Brandao, supra at 75.
If, on the other hand, liability was in fact conceded and if he does not order compensation, then there would be no attorney's fee on this basis.
As we discuss further below, the judge found a work-related injury and yet did not order reasonable and necessary medical benefits under § 30. On remand, if the judge orders § 30 payments for causally related medical treatment, the employee has prevailed under § 13A(5) and is entitled to counsel fees and reimbursement of expenses.
2. ISSUES NOT IN CONTROVERSY
A party is entitled as a matter of due process to an opportunity to present evidence on the issues in controversy, to examine and cross-examine witnesses, to rebut evidence, and to argue all issues of fact and law. See Pompi v.Kimberly-Clark Corp., 8 Mass. Workers' Comp. Rep. 127, 129 (1994) and cases cited.
Here, the employee expressly reserved the issue of G.L.c. 152, § 36 benefits. (Dec. 2.) It was not before the judge and therefore error to find ". . . that the employee has not suffered any disfigurement or permanent loss of function as a result of this industrial accident." (Dec. 14.) Accordingly, we vacate and strike that finding.
Furthermore, the judge found that the significant personnel changes implemented by the employer directly impacting on Mr. Nelson's career were bona fide personnel actions. (Dec. 2, 10, 13.) However, there was no claim, defense, or issue before the judge under G.L.c. 152, § 1(7A) for emotional or mental disability. We, therefore, strike this finding as well.
Section 1(7A) provides that no mental or emotional disability arising principally out of a bona fide, personnel action including a transfer, promotion, demotion or termination except such action which is the intentional infliction of emotional harm shall be deemed to be a personal injury within the meaning of this chapter. See Brown v. Strathmore Paper Co., 9 Mass. Workers' Comp. Rep. 191, 197 nn. 1, 2 and accompanying text (1995).
3. SOCIAL SECURITY DISABILITY CLAIM
The judge found that the "parallel pursuit of SSDI benefits for pre-existing neurological conditions" was a factor, among others, in "render[ing] the employee unable to support his burden of proof in this claim." (Dec. 12.) To the extent the judge weighed this factor as significant in reaching his ultimate conclusion denying further benefits, it was legal error.
There are no provisions in G.L.c. 152 barring an employee from pursuing remedies under both the Social Security Act and the Workers' Compensation Act. There are offset requirements that may apply where an employee or his family receive both social security disability benefits and certain workers' compensation disability benefits. See Chase v.Grief Brothers Corp., 8 Mass. Workers' Comp. Rep. 149, 153 (1994); H. McCormick, Social Security Claims and Procedures, §§ 402-404 (4th ed. 1991). However, a judge may not draw an adverse inference undermining a right to claim workers' compensation arising from a work-related injury on grounds that the employee exercised his legal rights to collateral or parallel remedies under social security law. See Chase, supra at 153. Moreover, under social security law, all medical conditions, whether work-related or not, may be considered in determining benefit entitlement.
42 U.S.C. § 423(d) defines disability for social security disability entitlement purposes in part as:
. . .inability to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment which can be expected to result in death or which has lasted or can be expected to last for a continuous period of not less than twelve months. . . In determining whether an individual's physical or mental impairment or impairments are of a sufficient medical severity that such impairment or impairments could be the basis of eligibility under this section, the Commissioner of Social Security shall consider the combined effect of all the individual's impairments without regard to whether any such impairment, if considered separately, would be of such severity. . . .
If the employee has received a favorable social security disability judgment, during the pendency of the remand proceedings, the judge may weigh it as some evidence, of incapacity butnot conclusive evidence, in this forum. See Yuksel v. Davidson Chevrolet, Inc., 9 Mass. Workers' Comp. Rep. ___ (December 19, 1995). The judge is free to determine what significance, if any, an award may have in his determinations. Id.; SeeMcCarthy v. Charrette Corp., 9 Mass. Workers' Comp. Rep. 272, 275-276 (1995).
4. MEDICAL BENEFITS
The employee next contends that the judge's decision is inconsistent and ambiguous because it failed to order G.L.c. 152, § 30 medical services and treatment despite a finding of a compensable injury. This issue was presented to the judge, who did not explicitly or completely address it. Therefore the decision does not comport with the requirements of G.L.c. 152, § 11B. Even where there is a finding of neither wage loss nor sufficient lost time from work to trigger a right to weekly benefits, an injured worker is entitled to § 30 reasonable, necessary, and related medical benefits once the threshold issue of liability is determined. See Tigano v. Acme Boot Co., 8 Mass. Workers' Comp. Rep. 145, 148 (1994). On remand, the judge is to make findings on the § 30 claim that are anchored in the medical evidence. SeeSullivan v. Commercial Trailer Repair, 7 Mass. Workers' Comp. Rep. 8, 9 (1993).
The judge must also make findings on the employee's capacity for work during any disputed period, analyzing the medical evidence in conjunction with specific credibility findings on the employee's pain complaints and the nature of his job. This may include whether it involved heavy work or only managerial responsibility. He may then apply the standards set forth in Scheffler's Case, 419 Mass. 251, 256 (1994), to determine when, if any, incapacity began or ended. This analysis was not performed by the judge in the previous decision.
CONCLUSION
Accordingly, we recommit this case for further findings consistent with this opinion. G.L.c. 152, § 11C. In summary, the judge must state clearly the issues in controversy, resolve the conflicts in the evidence, and decide each issue before him. He is to clarify and rule on the employee's claim for § 30 medical benefits and § 13A(5) attorney's fees. He is to consider the weight to be given to the employee's disability claim under the Social Security Act in accordance with the proper legal principles. Finally, he is to make further findings on the nature and extent of incapacity during all periods in dispute. The judge may take further evidence if he deems it necessary to render his decision.
During the pendency of the remand proceedings, the present order shall remain in effect.
So ordered.
____________________________________ Edward P. Kirby Administrative Law Judge
____________________________________ Suzanne E.K. Smith Administrative Law Judge
____________________________________ Susan Maze-Rothstein Administrative Law Judge
Filed: June 5, 1996