Opinion
BOARD NO. 10044085
Filed: June 13, 1996
REVIEWING BOARD DECISION
(Judges Fischel, McCarthy, and Wilson)
APPEARANCES
Robert E. Keane, Esq., for the Employee
Susan F. Kendall, Esq. for the Insurer
The employee appeals from an administrative judge's decision denying benefits pursuant to § 34A of the statute. The employee claims, among other bases, that the administrative judge erred by failing to apply section § 35B of the statute. In addition, the employee believes that the administrative judge failed to define work limitations caused by the medical condition and erroneously relied upon the employer's testimony as indicia of work available for employee, when no actual job within the employee's restrictions was offered by employer. We agree and vacate the decision and remand the case to the administrative judge for findings consistent with this opinion. We also hold that it was error for the administrative judge to find a new date of injury in 1990, when the employee at that time was injured while receiving medical treatment for an earlier medical injury.
John Rochon was working as a service technician in August of 1985 when he felt a "pop" and experienced pain to his back as he lifted a 180 pound machine. (Dec. 3.) Three days after the incident, the employee was treated by a chiropractor who prescribed ten days of bed rest and chiropractic adjustments. (Dec. 3-4.) The employee was unable to work for three weeks, but returned to employment in September of 1985, and was assigned to light duty work. (Dec. 4.) The insurer initially accepted the August 9, 1985 claim and paid benefits under § 34 for approximately three weeks. (Dec. 2.)
In 1987, the employee agreed to work as a salesperson for the employer. Id. He strongly disliked this work and developed an ulcer. Id. Rochon returned to a service technician position in late 1987 but by May of 1988, the employee developed intense leg and back pain. He began treatment with a different chiropractor at that time. The employee stopped working on August 17, 1988.Id. The insurer resumed payment of weekly compensation benefits on August 17, 1988 treating it as a recurrence of the August 8, 1985 industrial injury.
In August of 1988, the employee underwent surgery for a protruded lumbosacral disc. Since the pain did not diminish after surgery, he had a hemilaminectomy with partial fascietctomy, foraminotomy and excision of herniated disc in January 1989. (Dec. 4.) He returned to physical therapy to alleviate the pain which returned after surgery. (Dec. 5.) On May 23, 1989, Dr. Wright, the treating doctor, observed that the employee's condition had begun to worsen and on December 1, 1989, the employee underwent lumbosacral decompression surgery which alleviated his pain for four to six weeks. The employee then returned to physical therapy. Id.
In June of 1990, the employee injured his neck in physical therapy and complained of headaches and neck pain. Id. In March of 1991, he underwent cervical disc fusion which alleviated the neck and headache pain for a time, but later returned and continues to the present time.
On August 17, 1988, when the employee stopped working due to back and leg pain, the insurer resumed paying benefits under § 34 at the 1985 rate. The employee appealed a conference order filed October 8, 1992 which denied benefits under § 35B or an alternative § 34A claim. On June 30, 1994, after hearing, the administrative judge issued a decision which found the neck injury that occurred during medical treatment in 1990 to be a new industrial injury, thus rendering moot the issue of § 35B benefits. The judge also denied § 34A benefits and ordered the insurer to pay the employee compensation pursuant to § 35 at the rate of $124.86 per week based upon an average weekly wage of $357.29 and an earning capacity of $170.00 from October 7, 1993 and continuing. The employee appealed.
The administrative judge erred when she found the 1990 neck problem that occurred during medical treatment to be a new, compensable injury. When an employee is injured in the course of treatment, the new medical problem relates back to the original date of injury. See Don Francisco's Case, 14 Mass. App. Ct. 456 (1982); Atamian's Case, 265 Mass. 12 (1928) (holding that dependents ought not to be deprived of compensation if death results from faulty or negligent surgery from operation as part of treatment for injury arising out of course of employment); Burns's Case, 218 Mass. 8, 11 (1914).
The judge also erred by stating that based on the employer's testimony, the employer has jobs available, when she also found that due to economic conditions, the employer could not afford to hire the employee. (Dec. 6.) The judge noted that the employer offered to provide the necessary equipment for the employee to work at his home as a receptionist or telemarketer for the employer. (Dec. 6.) At hearing the employer did, in fact, testify that he had previously offered the employee a service dispatching job, (Tr. 68), but that at the present time, his company could not make a workforce adjustment to provide employment for Mr. Rochon.
The employer testified:
A. "Financially we couldn't do it right now, and we've actually cut down a little bit on staff, so I have to fire somebody to do that. I wouldn't want to take that course." (Tr. 70).
In order for a job to be used as a basis for assignment of earning capacity, the employee must have the ability to perform an offered job, and the job must be, in fact, available. See Cambria v. M.B.T.A, 9 Mass. Workers' Comp. Rep. 277 (1995); Medley v. E.F. Hauserman Co., 7 Mass. Workers' Comp. Rep. 97 (1993).
The administrative judge adopted the opinions of both Dr. Wepsic and Dr. Wright, (Dec. 8), both of whom set restrictions on the employee's ability to do work activity including limitations on prolonged sitting and lifting. Dr. Wepsic, the insurer's examiner, testified as to the employee's chronic pain syndrome. On remand, the administrative judge should clarify the nature of the work she believes the employee is able to perform, in view of work-related impairment.
Dr. Wepsic, in his deposition, testified as to the following:
Q: You agree, do you not doctor, that Mr. Rochon suffers from chronic pain?
A: I think he has complaints of chronic pain. Yes.
Q: And would you agree that pain, to a significant degree, can result in impairment of the individual?
A: Yes.
Q: Therefore, doctor, when you're talking here, when you say that he testified that he is pretty much in constant pain, when you are talking about his work capacity and his ability to perform certain jobs, you're talking about him doing those jobs while he is in pain. Is that correct?
A: Yes.
(Wepsic Dep. p. 33, 34).
As noted above, the judge held that she did not have to deal with the issue of § 35B because the employee suffered an injury to his neck that was caused by the physical therapy he was undergoing for the original injury to his back. This is error. Section 35B is a legislative remedy for the disparity which otherwise would exist between wages lost and compensation received where an employee returns to work, but because of a prior compensable injury, his ability to perform his duties changes while his compensation benefits remain the same. See Don Francisco's Case, 14 Mass. App. Ct. 456 (1982). On the facts presented, the employee sustained an industrial injury in 1985, lost time from work, returned to work for nearly three years, well in excess of the requirement in § 35B that the employee return to work in excess of two months. On remand, the administrative judge should make findings on whether the employee's medical condition deteriorated, causing him to leave work in August 1988. If the judge finds that the medical condition worsened, she should then make findings as to the average weekly wage of the employee upon his last working in 1988 and to make findings pursuant to § 35B. We recently reviewed § 35B and its application. See Puleri v. Sheaffer Eaton, 10 Mass. Workers' Comp. Rep. ___ (January 25, 1996); Kelly v. M.B.T.A., 10 Mass. Workers' Comp. Rep. ___ (May 14, 1996); Taylor v. Taylor Ocean Industries, 10 Mass. Workers' Comp. Rep. ___ (May 24, 1996); Barbaro v. Smith Wesson, 9 Mass. Workers' Comp. Rep. 652 (1995); Don Francisco's Case, 14 Mass. App. Ct. 456 (1982).
General Laws c. 152, § 35B states:
An employee who has been receiving compensation under this chapter and who has returned to work for a period of not less than two months shall, if he is subsequently injured and receives compensation, be paid such compensation at the rate in effect at the time of the subsequent injury whether or not such subsequent injury is determined to be a recurrence of the former injury; provided, that if compensation for the old injury was paid in a lump sum, he shall not receive compensation unless the subsequent claim is determined to be a new injury.
Added by St. 1970, c. 667, § 1.
So ordered.
________________________ Carolynn N. Fischel Administrative Law Judge
________________________ William A. McCarthy Administrative Law Judge
________________________ Sara Holmes Wilson Administrative Law Judge Filed June 13, 1996