Opinion
BOARD No. 071105-86
Filed: March 16, 1995
REVIEWING BOARD:
Judges Smith, Kirby, and Maze-Rothstein.
APPEARANCES:
Walter J. Avis, Jr., Esq., for the employee.
David M. O'Connor, Esq., for the insurer.
Both parties appeal from the decision of an administrative judge on the employee's claim for § 34A permanent and total compensation. The judge found the employee partially incapacitated and awarded ongoing § 35 partial compensation. The employee asserts that the judge failed to properly assess the extent of incapacity. The insurer claims that the judge failed to consider evidence that was offered. We find that the decision is inadequate to allow proper appellate review and therefore remand for further findings of fact.
Anthony Reis, a truck driver employed by Anchor Motor freight, sustained a personal injury arising out of and in the course of his employment. While unloading cars from a trailer truck, Reis slipped and fell five or six feet striking his head, right shoulder, lower back and right leg. The insurer voluntarily accepted his initial claim for benefits and paid § 34 temporary total compensation. The insurer then filed a request to discontinue or modify benefits. By conference order filed May 8, 1991, the judge denied the discontinuance request. The insurer appealed to hearing. While awaiting hearing, Reis exhausted his entitlement to § 34 benefits. The insurer withdrew its discontinuance request and Reis filed the pending claim for § 34A permanent and total incapacity benefits.
The insurer contested the claim for permanent and total compensation. It therefore was conferenced on October 2, 1991. Because of the medical dispute over the nature and extent of incapacity and its causal relationship to the work injury, the judge appointed a physician to examine the employee and make a report. By letter dated December 9, 1991, the judge requested Dr. Israel Hurwitz to report on the present disability, its causal relationship to the work injury, whether Reis had reached a medical end result, the necessity for further treatment or surgery, the present work capacity and the prognosis. Dr. Hurwitz responded by letter dated January 31, 1992. Thereafter, the judge filed a conference order denying Reis's claim.
At this time, G.L.c. 152, § 11A(3) provided: "In any other proceeding in which medical evidence is required for the resolution of a dispute arising under this chapter, an administrative judge may appoint a physician from the appropriate roster to examine the claimant and to make a report . . . compare the present § 11A which accords the impartial report prima facie weight.
Reis appealed the conference denial. At hearing, on his issues statement, Reis requested permission to depose Dr. Hurwitz. After the first hearing date, by letter dated September 14, 1992, Reis's counsel informed the judge that he had decided not to depose Dr. Hurwitz and asked the judge to accept Dr. Hurwitz's report as an exhibit.
The decision does not list Dr. Hurwitz's report as an exhibit. No mention is made of its offer. The record is silent as to whether the exhibit was intentionally excluded or inadvertently overlooked.
The decision contains a description of the employee's education and vocational experience. Anthony Reis was fifty-six years old. He completed the sixth grade of vocational school. Between 1954 and 1957 he served as a truck driver in the U.S. Air Force. Since 1957, he worked as a warehouseman, construction worker, and an over-the-road trailer truck driver. He began work for Anchor Motor Freight in 1984. His job there involved the pickup and delivery of automobiles. It required climbing, bending, reaching and the securing of automobiles to the trailer truck. (Dec. 3.)
The decision recites conflicting medical opinions regarding the employee's condition but does not include that of the impartial physician. Dr. Bianchi opined that Reis was capable of sedentary work where he was not required to lift or carry over five pounds. (Dec. 4.) Dr. Moretti opined that Reis could do any light work that allowed him to get up, walk around, not stay in any one place for a long time. In Dr. Moretti's opinion, Reis was unable to return to truck driving work. (Dec. 5.) In contrast, Dr. Sodha found that Reis was unable to perform any work. (Dec. 6.) Dr. Gibbons found that Reis was not disabled at all. (Dec. 7.)
In the procedural history section of the decision, the judge does not mention that he ordered an impartial examination at conference. (Dec. 2.)
The judge adopted "in part" the opinions of Drs. Bianchi and Moretti without further specification. He concluded, taking into consideration Reis's education, training and work history, that Reis was partially disabled with an earning capacity of $350 per week. He awarded ongoing § 35 partial compensation benefits from the date § 34 benefits were exhausted, September 9, 1991, at the rate of $150 per week based upon an average weekly wage of $575.
On appeal, the employee argues that the decision is against the weight of the evidence, contrary to law and to evidence, and erroneous in form and substance. His major contention is that the assigned earning capacity is not supported by the employee's background, education, work experience and determination of disability and is therefore unwarranted by the facts and contrary to law. We find that the employee misperceives our standard of review.
The standard of review for administrative judge decisions is set forth in c. 152, § 11C. It provides in pertinent part:
The reviewing board shall reverse the decision of an administrative judge only if it determines that such administrative judge's decision is beyond the scope of is authority, arbitrary or capricious, or contrary to law. The reviewing board may, when appropriate, recommit a case before it to an administrative judge for further findings of fact.
Prior to the 1991 reforms, the reviewing board also had the authority to reverse a decision if it was "unwarranted by the facts." That power was eliminated by St. 1991, c. 398, § 31. The reviewing board no longer has any authority to weigh evidence. If a factual finding is supported by competent evidence in the record, it is not arbitrary. See Robinson's Case, 416 Mass. 454, 457-458 (1993) citing Howe v. Health Facilities Appeals Bd., 20 Mass. App. Ct. 531, 537 n. 6 (1985). Section 11C requires us to affirm a decision based upon competent evidence in the record and correct legal principles.
We are unable to provide proper appellate review of the employee's incapacity argument because the decision fails to make adequate factual findings on the issue. In deciding the extent of incapacity, a judge must determine the physical limitations which the injury has created and then considering the employee's age, background, training and experience, assess the amount that he is capable of earning with a reasonable use of all his residual powers, mental and physical. Medley v. E.F. Hauserman Co., 7 Mass. Workers' Comp. Rep. 97, 99-100 (1993). See Scheffler's Case, 7 Mass. Workers' Comp. Rep. 219, 223 (1993), aff'd 419 Mass. 251 (1994); Frennier's Case, 318 Mass. 635, 639 (1945). Here the judge failed to clearly enunciate the physical limitations which the injury created. He adopted medical opinions "in part" without indicating what part.
When there is conflicting medical testimony, it is within a judge's authority to adopt all, none or part of the opinion of a medical expert. Antoine v. Pyrotector, 7 Mass. Workers' Comp. Rep. 337, 341 (1993), citing Amon's Case, 315 Mass. 210 (1943). However, where the findings do not disclose what portions of an expert's testimony are found to be fact, the reviewing board cannot determine with reasonable certainty whether the correct standards and principles of law have been applied to facts that properly could be found. Thomas v. Wayland Millwork Corp., 8 Mass. Workers' Comp. Rep. 107, slip op. at 1 (1994); Altshuler v. Colonial Hilton Hotel, 7 Mass. Workers' Comp. Rep. 62, 63 (1993). When a judge adopts "part" of an expert's testimony, he must clearly specify what part. Lyons v. M.B.T.A., 9 Mass. Workers' Comp. Rep. 27 (1995). As the judge here did not do so, we must remand for further findings. On remand the judge shall specify the physical limitations caused by the injury.
The insurer contends that the judge erroneously, albeit perhaps inadvertently, excluded the findings of the impartial medical examiner that he commissioned. It seeks a recommittal so that the judge may consider the impartial examiner's report in arriving at an appropriate earning capacity.
Decisions must be based upon evidence introduced at the hearing. Gervais v. M.B.T.A., 7 Mass. Workers' Comp. Rep. 128, 129 (1993); G.L.c. 152, § 11; 452 Code Mass. Regs. 1.11(5). Offered exhibits must be admitted or excluded by rulings which are disclosed. See Rossi v. Mass. Water Resources Auth., 7 Mass. Workers' Comp. Rep. 101, 102 (1993) (all evidence must be properly identified to establish an accurate and complete appellate record). By department practice, all exhibits are listed in the decision. Here the exhibit list in the decision does not include the offered report of Dr. Hurwitz, nor does the decision give any reason for its absence, i.e. that it was excluded. We therefore, return the case to the hearing judge for further findings on the status of this proffered exhibit.
If the judge determines that he inadvertently overlooked the exhibit, he may upon notice to the parties admit it so long as he provides the opportunity by deposition to cross-examine the impartial physician. If the judge intentionally excluded the exhibit, he shall state the basis for the exclusion so that we may perform our appellate function with regard to his ruling.
In summary, because we find the decision inadequate, we vacate it and remand the case to the hearing judge for further findings of fact consistent with this opinion. In light of the passage of time during the pendency of the appeal, if either party alleges a change in medical condition or vocational skills since the date the record closed or the judge finds that justice so requires, additional evidence may be taken prior to the entry of the remand decision.
So ordered.
Judges Kirby and Maze-Rothstein concur.