Opinion
BOARD No. 04021994
Filed: April 24, 1998
REVIEWING BOARD DECISION (Judges McCarthy, Maze-Rothstein and Smith).
APPEARANCES
Michael A. Rudman, Esq. for the employee.
Thomas G. Brophy, Esq., for the insurer at hearing.
Karen L. Finley, Esq. for the insurer on brief.
The insurer appeals from the decision of an administrative judge awarding the employee further weekly incapacity benefits after a lay-off and § 30 medical benefits. The insurer claims that the earning capacity assigned by the judge is arbitrary and capricious, and contrary to law. Because the decision contains errors of law and lacks clear factual findings on key issues, we reverse the earning capacity determination and recommit the case for further findings of fact and conclusions of law consistent with this opinion.
Amy Rogers, who was twenty-five years old at the time of the hearing, is a high school graduate with experience as a cashier and assistant store manager. (Dec. 4.) She began working for Universal Products, Inc., a manufacturer of electronic parts, as an assembler and was promoted after a few months to quality control inspector. Her duties involved checking parts for defects and required that she be on her feet up to six and a half hours per day, walking on a concrete floor, standing, stooping, bending, and occasionally lifting 25 to 50 pounds. (Dec. 4-5.)
On September 21, 1994, Rogers received a personal injury to her right knee arising out of and in the course of her employment. She reported the injury and sought medical treatment. She was out of work for about one month, during which the insurer paid compensation without prejudice. She returned to a sedentary position sorting phenolic boards for a few weeks and then resumed her regular job as a quality control inspector. (Dec. 5-6; Ir. brief 2) Her symptoms continued and on July 23, 1995 she suffered recurrent right knee problems. After being out of work for another month, during which she was again paid without prejudice, she returned to work as a troubleshooter, sorting items and visually inspecting them. (Dec. 6; Tr. 94.) At that point, she was laid off. (Dec. 6.) The judge initially stated in his decision that, when she was laid off, she could no longer perform the job of troubleshooter. (Dec. 6.) However, later in the decision, he wrote that she conceded that she could have continued the job as a sorter if she had not been laid off. (Dec. 7-8.)
Rogers testified that she would get discomfort and swelling in her knee from prolonged siting (Tr. 63), but that she was able to do the sorting job for eight hours a day and would have continued in that position had she not been laid off. The troubleshooter-sorter job was a regular position in the company for which persons were hired off the street; it was not a specially created light duty position.
After being laid off, Rogers collected unemployment benefits. She made several calls to the employer in an attempt to return to work, but to no avail. (Dec. 6.) In February 1996, she gave birth to a child and did not look for work until six to eight weeks thereafter. (Dec. 7.) Eventually, on July 4, 1996, she went to work for Dunkin Donuts as a customer service person. She earns $5.50 per hour and works 30 hours per week. (Dec. 6, 9.)
The insurer paid weekly compensation benefits without prejudice pursuant to G.L.c. 152, § 8(1) for those periods of time when Rogers was out of work prior to being laid off, but resisted Rogers's claim for further benefits after the lay-off. Following a denial at § 10A conference, Rogers appealed to a § 11 hearing de novo. (Dec. 2.) Rogers underwent a § 11A impartial medical examination on June 11, 1996. The judge allowed additional medical evidence about the employee's medical condition for the time period prior to the date of the impartial examination. (Dec. 3, 7.)
In his decision, the judge found that Rogers had suffered an injury arising out of and in the course of her employment. (Dec. 8.) Though the judge further found that she still had some pain and discomfort, as well as swelling and locking of her knee, (Dec. 7), he nevertheless specifically adopted the opinion of the impartial medical examiner, Dr. Galvin, that "she is able to return to full-time work eight hours a day without any problem . . . with the only limitation being that she should not have to do any climbing and that squatting should be done infrequently." (Dec. 7; Dep. 30-31.) The judge then awarded § 34 benefits from August 28, 1995 to September 22, 1995, and § 35 benefits thereafter at two different rates.
Although the judge erroneously placed the burden of disproving the work injury (Dec. 6) and the unreasonableness and inadequacy of medical treatment on the insurer, (Dec. 9) the insurer does not challenge these findings.
The judge made no specific findings justifying the changes in the level of incapacity other than writing, "Regarding prior periods of disability, the medical reports found in Employee's Ex. # 2 — when disability is mentioned — roughly comport with the employee's dates and types of disability reported in the procedural history." (Dec. 8.) He specifically rejected the opinion of the insurer's examination physician. (Id.)
From September 23, 1995 to June 10, 1996, the judge assigned Rogers an earning capacity of $155.52 based on her ability to perform sedentary work. The judge then found that, "The employee, upon returning to work at Dunkin Donuts, demonstrates an earning capacity of $165.00 per week ($5.50 x 30 hours) from June 11, 1996 to date and continuing based on the opinion of Dr. Galvin." (Dec. 9.) Calculating from her pre-injury average weekly wage of $259.32 and her increased earning capacity of $165.00, the judge reduced her § 35 weekly benefits to $56.59 per week. (Dec. 4, 9.)
The date of the impartial examination.
The insurer appeals, alleging that the assignment of an earning capacity of $165.00 was arbitrary and capricious, and contrary to law. It argues that because the impartial physician, whose opinion the judge adopted, testified that Rogers could work a full forty-hour week, the judge should have based Rogers's earning capacity on her ability to work forty as opposed to thirty hours per week. It requests that we vacate the decision and deny the employee's claim. (Insurer's Brief, 14.) We agree that the judge's decision was legally flawed and, in many respects, inadequate for proper appellate review. We reverse the incapacity award and recommit for adequate findings of fact based upon a correct legal analysis.
Compensation under the Workers' Compensation Act is awarded solely for incapacity for work, Scheffler's Case, 419 Mass. 251, 256 (1994), or, stated otherwise, impairment of earning capacity.Federico's Case, 283 Mass. 430, 432 (1933). In determining an employee's incapacity for work, and thus the impairment of her earning capacity, a judge must look not only to an employee's physical limitations, but also to her age, education, training, experience, and other factors which influence an injured employee's ability to hold a job or obtain a new position.Scheffler's Case, supra. These non-medical factors combine with injured worker's medical condition to create different losses of earning capacity in different individuals at different times. Id.
The Legislature created two separate systems that impact on wage loss following a lay off. The workers' compensation system compensates for loss of earning capacity due to an industrial injury, and the unemployment compensation system compensates for wage loss due to depressed business conditions. Rival's Case, 8 Mass. App. Ct. 66, 70 (1979). A double recovery from these two systems is prevented by G.L.c. 152, § 36B, added to the Workers' Compensation Act by St. 1985, c. 572, § 47A.
An employee may be entitled to further incapacity benefits after a lay-off, as limited by G.L.c. 152, § 36B, if she establishes that her earning capacity is impaired during the period of her claim. See Scheffler's Case, supra. To award benefits, a judge must find that the employee's failure to obtain work is because of inability resulting directly from the injury and not solely from a depressed condition of the industry in which the employee had been engaged. Driscoll's Case, 243 Mass. 236, 239 (1922). If an employee is forced by the residual effects of her injury to leave her current job, and can only obtain less remunerative labor, then she is entitled to § 35 partial incapacity benefits. Garrigan's Case, 341 Mass. 413, 416-417 (1960). In that circumstance, the judge must determine the amount of unemployment benefits the employee received and credit those payments against the partial incapacity benefits otherwise payable for the same period. G.L.c. 152, § 36B(2).
However, if the injury did not prevent the employee from pursuing her former occupation and if the evidence does not justify a finding that she cannot secure work in it, employment in another industry does not furnish a reliable measure of earning capacity. Under such circumstances, an award based on a wage differential would be contrary to law. Driscoll's Case, 243 Mass. at 240.
Here, the employee's claims placed in dispute the nature and extent of incapacity. The judge therefore was required to determine whether, at the commencement of her claim, the employee had the medical ability to perform any remunerative labor, and if so, under what injury-related limitations. Based upon the above-describedScheffler analysis, the judge would then determine the economic effect of those medical restrictions and set an earning capacity. Dawson v. New England Patriots, 9 Mass. Workers' Comp. Rep. 675, 677 (1995). If the basic earning capacity factors then changed, at each change in medical or vocational condition, judge would describe the new limitations together with the employee's vocational assets and reassess the amount the employee is able to earn. Saracino v.Commonwealth, 8 Mass. Workers' Comp. Rep. 422, 426 (1994). The judge then would adjust the level of weekly wage replacement benefits accordingly. G.L.c. 152, §§ 34, 35, 35D and 36B.
It is unclear whether the employee was actually claiming compensation prior to September 22, 1995. Compare (Claims Issues, Employee's Ex. 1) with (Tr. 7.); see (employee Claim Form 110, line 16) and (Conference Memorandum dated February 12, 1996), both of which indicated only a claim of partial compensation from September 22, 1995.
Actual post-injury earnings, both before and after a lay-off may support the finding of an earning capacity equivalent to them, but only if they are a reliable basis for estimating earning capacity. Sjoberg's Case, 394 Mass. 458, 462 (1985). An award of compensation after a layoff is not necessarily prevented by the fact that, prior to the lay off, an employee had returned to work paying the same wages that she had earned pre-injury. However, the employee must persuade the judge that, once resort to other types of employment became necessary because of the lack of opportunity to continue in her current work, her capacity to earn in other types of employment was diminished by the effects of her injury. Hunnicutt v. General Dynamics, 5 Mass. Workers' Comp. Rep. 215, 219 (1991). An employee's actual post-injury wages are conclusive evidence of earning capacity only if they are the result of a reasonable use of all the employee's powers, mental and physical, Federico's Case, 283 Mass. 430, 432 (1933); Sensk's Case, 247 Mass. 232, 234 (1923), and produce the highest amount that the employee can earn. G.L.c. 152, § 35D; Valles v. Logan Airport Hilton, 10 Mass. Workers' Comp. Rep. 305, 306 (1996).
After the enactment of G.L.c. 152, § 35D, a judge may no longer set the level of earning capacity at a figure that is less than the employee's actual earnings. To this extent, the statute now limits the effect of the holding in Sjoberg's Case, supra. Dombeck v. Smith Wesson, 8 Mass. Workers' Comp Rep. 156, 158 (1994). A judge may find an earning capacity that is greater than the amount actually being earned, but, if so, must support that conclusion with detailed findings. G.L.c. 152, § 35D; DeZess v. Ames Department Store, 12 Mass. Workers' Comp Rep. ___ (April 10, 1998).
Section 35D provides, in pertinent part:
For purposes of sections thirty-four, thirty-four A and thirty-five, the weekly wage the employee is capable of earning, if any, after the injury, shall be the greatest of the following: —
(1) The actual earnings of the employee during each week.
. . . .
(4) The earnings that the employee is capable of earning.
The goal of incapacity adjudication is to make a realistic appraisal of the medical effect of a work injury on the individual claimant and award compensation for the resulting impairment of earning capacity, discounting the effect of all other factors.Scheffler's Case, supra. One such discounting factor is the voluntary choice by an employee not to work or to work fewer hours. See Plant v. Garelick Farms, 3 Mass. Workers' Comp. Rep. 48, 49 (1989) (employee preferred to do work which paid less);Curtis v. Eastern Billiard Supply, 5 Mass. Workers' Comp. Rep. 223, 226 (1991) (employee quit because he disliked the menial job and wanted to get out of the cold weather). Here, the judge made inconsistent findings about whether Rogers was laid off because of her inability to perform resulting from the injury, (Dec. 6), or due to general economic conditions. (Dec. 7-8.) He does not clearly find that she was initially totally medically disabled. See Dec. 8-9 (employee totally incapacitated to extent that corresponds with her claim, from August 28, 1995 to September 22, 1995); compare Dec. 7-8 (employee could have continued working if not laid off). He disregarded her actual earnings just prior to the lay-off without a clear explanation. His findings regarding Rogers's lack of attempts, after the lay off, to find employment with other employers do not clearly relate to this time period. (Dec. 7.) Additionally, he ordered the insurer to pay total compensation benefits for a period of time when the employee was apparently collecting unemployment compensation. (Dec. 6.) As a final conundrum, it is not even clear that the employee was seeking the benefits awarded prior to September 22, 1995!
"Incapacity" and "disability" are terms of art having distinct meanings in the workers' compensation system. Medley v. E.F. Hauserman Co., 7 Mass. Workers' Comp Rep 97, 99 (1993).
The decision does not provide assurance that the award of § 34 total compensation from August 28, 1995 to September 22, 1995 was according to law. Unless the employee claimed incapacity benefits prior to September 22nd, the judge would lack authority to award them. Apparently, the insurer made payments without prejudice prior to that date. Payments made voluntarily pursuant to G.L.c. 152, § 7(1), rather than made pursuant to a conference order, may not be recouped, G.L.c. 152, § 11D(3), and are not the proper subject for a § 11 adjudication. Furthermore, as indicated above, without further findings justifying it, an award of total compensation following lay off, where an employee was regularly working and, if hadn't been laid off, would have continued, would be contrary to law.Davis's Case, 304 Mass. 530, 535 (1939). Finally, the order for § 34 benefits would contravene the provisions of G.L.c. 152, § 36B(1) if the employee received unemployment benefits for the same period.
Section 36B(1) provides: "No benefits shall be payable under section thirty-four or section thirty-four A for any week in which the employee has received or is receiving unemployment compensation benefits."
We examine the decision's next benefit period. Commencing on September 23, 1995, the judge found a period of partial incapacity based upon an earning capacity of $155.52 ($6.43 x 24 hours). He did not specifically identify any medical limitation on the hours that Rogers was capable of working. Nor did he clearly specify Rogers' other medical restrictions for this period. See (Dec. 8-9.) He did find that Rogers made no attempt to find suitable work until March or April 1996, six to eight weeks after the birth of her child other than a couple of calls to her former employer. (Dec. 7.) We are unable to ascertain the elements that factored into the judge's economic analysis for this time period. Such medical and vocational findings are required in order to perform a proper earning capacity analysis. Furthermore, the decision does not clearly reveal whether Rogers collected unemployment benefits during this time. See (Dec. 6). The award of partial compensation was not reduced by any benefits paid, as G.L.c. 152, § 36B(2) requires.
We finally address the continuing level of benefits that the judge awarded. The judge changed the level of earning capacity as of the date of the impartial medical examination, setting Rogers's earning capacity at a level equal her actual post-injury earnings at her thirty hour per week Dunkin' Donuts job. This factual finding about the amount that Rogers is able to earn after June 10, 1996 conflicts with the judge's adoption of the impartial physician's opinion. The doctor opined that Rogers could return to full time work; the Dunkin' Donuts job was only part time. The judge did not reconcile these inconsistent findings, or specifically apply § 35D.
The burden of proving incapacity for work, and thus loss of earning capacity, rests on the employee. Foley's Case, 358 Mass. 230, 232 (1970); Mulcahey's Case, 26 Mass. App. Ct. 1, 3 (1988). The judge wrote, "There is not . . . any indication she could have obtained a job paying as much or more than her average weekly wage." (Dec. 8.) It is not the insurer's task to prove that the employee could have worked full time and earned more than her Dunkin' Donuts pay. Rather, it is the employee's burden to prove that she was unable to obtain a full time job paying as much as, or more than, her pre-injury average weekly wage because of the residual effects of her work injury.
Rogers's part time earnings, by themselves, do not give rise to a reasonable inference that she was unable to obtain full time work. See Sjoberg's Case, supra (the fact of longer work hours rebuts presumption that earning capacity is equivalent to post-injury earnings). To have her partial compensation based on her actual earnings, Rogers must persuade the judge that her part time job is the best that she can obtain and perform. The disparity between Rogers's pre- and post-injury earnings must be due to the residual effects of the work injury and not due to a voluntary choice to not work during pregnancy and childbirth, or to work less and devote more time to a new baby. See G.L.c. 152, §§ 34 35 (compensation awarded for incapacity "resulting from the injury").
The decision to stay home to protect health during pregnancy and take care of a newborn child is commendable, but the insurer and employer are not liable for the financial burden of that choice, as it is unrelated to the work injury for which they are responsible.
For these reasons, we reverse the judge's award of incapacity benefits and recommit the case for further findings of fact and conclusions of law consistent with this opinion. As the administrative judge who issued this decision no longer serves in the department, we forward this case to the senior judge for reassignment to a new administrative judge for hearing de novo. The parties may assent to have the case heard by the new judge on all or any portion of the evidence taken before the earlier judge. Nartowicz's Case, 334 Mass. 684 (1956).
So ordered.
___________________ Suzanne E.K. Smith Administrative Law Judge
____________________ William A. McCarthy Administrative Law Judge
____________________ Susan Maze-Rothstein Administrative Law Judge
Filed: April 24, 1998