Opinion
BOARD No. 5034491
Filed: November 6, 1997
REVIEWING BOARD DECISION
(Judges Maze-Rothstein, McCarthy and Smith)
APPEARANCES
William Scannell, Esq. for the employee
Annette Bell-Hardy, Esq. for the insurer at hearing
Andrew P. Saltis, Esq., on brief
This is the employee's appeal from a decision dismissing his claims and ordering termination of § 35 partial incapacity compensation. Because the decision does not comport with the basic requirements of § 11B, we reverse it and recommit this case for proceedings consistent with this opinion.
The employee was a store manager for All For A Dollar, Inc. whose duties included unloading trucks, receiving, and stocking. (Dec. 3, 7.) On September 18, 1991, he leaned against a restraining chain which gave way, causing him to fall backwards off a loading dock approximately four feet to the ground. (Dec. 3.) He fractured his right hand and injured his low back. (Dec. 3.)
The insurer paid § 34 total incapacity benefits without prejudice from September 19, 1991 to April 15, 1992 when the employee returned to work for a home improvement business and later for a landscaping company. (Dec. 4-5.) After leaving the former job, the employee filed a claim for compensation benefits under §§ 34, and 30. Following a § 10A conference, an order of payment issued for continuing § 35 partial incapacity and related medical benefits from August 14, 1992 and continuing. The insurer appealed to a hearing de novo.
The employee's benefits were terminated as of April 15, 1992, the day he began working. (Employee's brief, at 3, n. 4.) The evidence indicates that he stopped working for the home improvement company in August, 1992 and the landscaping company in August 1993. (Tr. 46-50.) The employee collected unemployment benefits of $150.00 per week from September or November of 1992 through June, 1993. (Dec. 6.)
The employee was examined pursuant to § 11A on June 21, 1993. The § 11A medical examiner diagnosed the employee's condition as lower back spondylolysis and spondylolisthesis made symptomatic by the fall from the loading dock. (Dec. 4-5; Dep. 16-17, 19.) The doctor opined that there was a residual partial disability. He prohibited the employee to sedentary or light work with lifting restrictions of up to 10 pounds, and no prolonged standing or sitting in a "single posture." (Dec. 4-5.) The doctor felt that heavy work of any kind including unloading of trucks, stocking, receiving or landscaping was ill advised. (Dep. 17, 18, 21-22.)
In every case involving a medical dispute, § 11A governs the appointment of a medical examiner.
On August 13, 1993, the insurer unilaterally terminated the § 35 compensation payments ordered at conference. At hearing, the employee claimed § 35 partial incapacity benefits, from August 13, 1993 and continuing, § 30 medical benefits and penalties for an illegal discontinuance under §§ 7, 8, and 14. (Dec. 1-2; Tr. 3-5.) The insurer raised the issues of incapacity and its extent, causal relationship, and entitlement to § 30 benefits. Id.
The insurer filed Notices of Termination of Workers' Compensation benefits, dated August 13, 1993 and August 16, 1993. (Exhibits 2, 3.) The employee alleges that these notices were not in compliance with the requirements of 452 Code Mass. Regs. 1.07 (j). (Employee's brief at 16.) This is the basis of the employee's claim for penalties formally joined at hearing.
On May 18, 1994, the decision issued denying the employee's claims. Based on the § 11A medical opinion, the employee's post-injury work and with bare mention of any vocational considerations, the judge found that the employee could work at a number of occupations including his post-industrial injury jobs as a landscaper's superintendent, a vinyl siding installer, as well as his pre-industrial injury job, absent the duties of unloading trucks, receiving and stocking. (Dec. 6-7.) He concluded that the employee was no longer entitled to § 35 benefits after June 21, 1993, the date of the § 11A exam. (Dec. 7.)
The employee is now before the reviewing board on appeal. He argues that the findings were inadequate to support the decision and that the judge failed to address the claim for an illegal discontinuance under §§ 7, 8, and 14. We agree.
Section 11B provides in pertinent part: "Decisions of members of the board shall set forth the issues in controversy, the decision on each and a brief statement of the grounds for each such decision." G.L.c. 152, § 11B. Conclusions reached in a decision must be supported by subsidiary facts found. These facts must be definite and specific enough to demonstrate a rationale and to allow for proper appellate review. See Ballard's Case, 13 Mass. App. Ct. 1068, 1068-1069 (1982); Praetz v. Factory Mut. Eng'g Research, 7 Mass. Workers' Comp. Rep. 45, 46-47 (1993). Evidentiary recitations do not constitute subsidiary findings and are inadequate to support general findings. Messersmith's Case, 340 Mass. 117, 119 (1959); Fragale v. MCF Indus., 9 Mass. Workers' Comp. Rep. 168, 172 (1995). Furthermore, the judge must make findings and decide each disputed issue before him. G.L.c. 152, § 11B; see Zecco v. K K Indus., 9 Mass. Workers' Comp. Rep. 55, 57 (1995).
The decision does not comport with these standards. The general findings are conclusory and the subsidiary findings consist almost entirely of recitations of the lay and medical evidence with few factual determinations. There is neither cogent discussion of the facts nor reasoning to explicate the ultimate decision. For example, the judge found the employee's work as a landscaping superintendent of maintenance involved, "basically mowing laws (sic) with 52 inch and 36 inch mowers." (Dec. 5) The employee testified that "he generally worked the 52 inch machine."Id. The judge then found "[b]ased on the testimony of the employee. . . [he] is fully capable of returning to work as a landscaper's superintendent of maintenance, or as a vinyl siding installer. . . ." (Dec. 6-7.) But Dr. Broome, whose opinion the judge adopted, felt that such heavy work was "ill advised" for an employee with "well-documented" spondylolysis and spondylothesis made symptomatic by the industrial injury. (Dep. 16-17; 21.) In fact, the restrictions the doctor imposed for someone such as the employee would include no work that involved "lifting, pushing or pulling". (Dep. 18.) If he did, the employee would be "in peril of further episodes of low back pain . . . ." Id. In the doctor's estimation, the employee was left with only a sedentary physical capacity. (Dep. 17.)
Where an employee has a condition that a work injury has made symptomatic such that medically he should refrain from certain prior work because of the considerable risk of reinjury, any reduced capacity to earn from such a restriction is compensable. See Dimitropoulos's Case, 313 Mass. 345 (1961).
To adopt an opinion of a causally related restriction from heavy work and then find the employee capable of returning to the very types work the § 11A doctor said he medically should not do, directly contradicts the medical evidence and is therefore arbitrary. Once the judge adopted the § 11A doctor's opinion of partial medical disability with physical restrictions limiting the employee to sedentary work, the judge then was obliged to address how his residual sedentary capacity aligned with the employee's vocational profile to properly make an incapacity determination. See Scheffler's Case, 419 Mass. 251, 256-257 (1994). This was not done. In light of the adoption of the medical opinion, the subsidiary findings are inadequate to support the termination of all § 35 benefits on the date of the § 11A exam. See Scheffler's Case, supra at 256-257.
The final and most obvious error is the complete failure to address the employee's claims under §§ 7, 8, and 14! See G.L.c. 152, § 11B.
Since the findings are inadequate and the decision does not address all issues in dispute, we reverse it and recommit this case. G.L.c. 152, § 11C. As the administrative judge at hearing no longer serves in the department, we forward the case to the Senior Judge for assignment for a hearing de novo.
So ordered.
_______________________________ Susan Maze-Rothstein Administrative Law Judge
________________________________ William A. McCarthy Administrative Law Judge
________________________________ Suzanne E. K. Smith Administrative Law Judge
Filed: November 6, 1997