Opinion
BOARD No. 02047393
Filed: January 3, 1997
REVIEWING BOARD DECISION
(Judges Maze-Rothstein, McCarthy and Smith)
APPEARANCES
David W. Sanborn, Esq., for the employee.
Terence H. Buckley, Esq., for the insurer.
The insurer appeals from a decision which ordered it to pay a closed period of § 34 temporary total incapacity compensation and § 35 partial incapacity benefits in addition to § 13A counsel fees. The self-insurer argues that the compensation award between September 1, 1993 to March 1994 lacks support in the record. It also argues that the award of attorney's fees for employee counsel was erroneous. We find no error and affirm the decision on all issues.
The employee injured his neck and back on May 23, 1993 when, while assisting a 250 pound client into a bed, he lost his footing and fell. (Dec. 3.) He received medical treatment for his neck and back, although the latter symptomatology did not arise until approximately one week after the injury. (Dec. 4.)
The self-insurer paid § 34 compensation without prejudice until August 31, 1993. Thereafter the employee filed a claim for further benefits. Section 34 temporary total weekly compensation from September 1, 1993 until November 30, 1993, and § 35 benefits were awarded by a § 10A conference order. Both parties appealed to a hearing de novo.
At hearing, the employee claimed § 34 benefits from September 1, 1993 onward. (Dec. 2, 7.) The insurer accepted liability for total incapacity due to the back injury through August 31, 1993.Id. However, it contested any entitlement beyond September 1, 1993. The insurer also denied liability for the neck injury. (Dec. 3.)
In the decision, the employee's description of his injury, his ongoing medical treatment and present symptomatology was credited. (Dec. 4-5, 7.) Also, the employer's December, 1993 offer of light duty work was found to be bona fide. (Dec. 6-7.)
On March 18, 1994 the employee was examined pursuant to § 11A. The § 11A physician causally related the industrial accident to both the neck and back conditions. But on the exam date there were no objective neurological or orthopedic findings to support any longer the back and neck injury diagnosis. The doctor felt the employee was at a medical end result with no permanent functional loss and could gradually return to work over a four to six week period performing modified work that required no lifting over 20 pounds. The judge adopted this medical opinion. (Dec. 5.)
General Laws c. 152, § 11A gives an impartial medical examiner's report the effect of "prima facie evidence with regard to the medical issues contained therein," and expressly prohibits the introduction of other material medical evidence to meet it unless the judge finds the additional medical testimony is required due to the complexity of the medical issues involved or the inadequacy of the report.
Based on the foregoing, § 34 total incapacity benefits for the back and neck injuries were awarded until December 1, 1993 when the employer tendered the modified job offer. (Dec. 6.) Thereafter, § 35 partial incapacity benefits were ordered from December 1, 1993 until March 18, 1994, together with § 30 medical benefits, and an attorney's fee under § 13A. (Dec. 7-8.) We have the self-insurer's appeal.
The self-insurer first takes issue with the incapacity determination after September 1, 1993. It argues the medical evidence does not support the findings after that date. (Self-Insurer's Brief, at 2.) In the alternative, it contends that all benefits should have been terminated on the December 1, 1993 job offer date and thus any award of § 35 compensation was unwarranted.Id. On the issue of attorney's fees, it also avers that the employee did not prevail for purposes of § 13A because benefits were discontinued on March 18, 1994. (Insurer's Brief, at 3.) We discern no error in the decision and affirm it in all respects.
There is no error in the award of a closed period of § 34 and § 35 incapacity benefits from September 1, 1993 to March 18, 1994. The insurer's argument that reversal is required because the judge relied on the "employee's treatment and symptomatology" rather than medical evidence has no merit.
In both his March 18, 1994 report and in his June 15, 1994 deposition, the § 11A examiner looked to the history of ongoing medical treatment in rendering his disability opinion. (Employee's Ex. 4; Field Dep. 11-20.) It was as of the March 18, 1994 exam date that the doctor found no medical indication to continue to support the back and neck diagnoses. The judge adopted his medical opinions and terminated benefits on the exam date. See Antoine v. Pyrotector, 7 Mass. Workers' Comp. Rep. 337, 341 (1993), citing Amon's Case, 315 Mass. 210 (1943). Furthermore, the judge credited the employee's testimony regarding the history of his injury, his complaints of pain and limitation and his ongoing symptomatology and treatment. (Dec. 4, 7; see Tr. 13-16, 20, 30-33, 39); see also Dirring v. Custom Deliveries, 9 Mass. Workers' Comp. Rep. 78, 80-81 (1995) (credibility determinations final if evidential support and no error of law). The decision establishing dates and the nature of the employee's entitlement to benefits is firmly grounded in both the lay and medical testimony. See Bedugnis v. Paul McGuire Chevrolet, 9 Mass. Workers' Comp. Rep. 801, 802-804 (1995) (judge may consider testimony by lay witnesses and other evidence as well as medical opinions in making ultimate assessment of incapacity). We will not disturb the conclusions reached.
The dissent, after making clear that a medical record on which it relies is not in evidence, suggests that the § 11A doctor's opinion was "similar" to a medical opinion that was not in evidence and curiously, would require the judge to make findings by comparing an opinion in evidence with one that is not.
Likewise, we find no error in the award of § 35 partial compensation after December 1, 1993 when the employee acknowledged an earning capacity and the employer advanced a light duty job offer. The judge was not required to terminate all benefits at that time. The record is silent on the question of whether the offer was for full or part-time work. Nor does the record reveal the supposed pay rate for the offered work. In the absence of direct testimony on the hours, duties, or pay proffered by the employer, the judge was free to make her own earning capacity assessment. (Dec. 5.) See Mulcahey's Case, 26 Mass. App. Ct. 1, 3 (1988); see G.L.c. 152, § 35D(4). The judge's decision meets the test of reasoned decision making as set forth in Scheffler's Case, 419 Mass. 251, 257 (1994). See also Frennier's Case, 318 Mass. 635, 639 (1945).
The dissent differs on this point based on a letter confirming a telephone call between the employer and employee regarding his readiness to return to work if he got medical clearance. The record is silent, however, on what if any inference could reasonably be drawn from the employee's failure to bring such clearance to the employer since he was never asked why he did not obtain it. For all that appears on the record, the employee may have been unable to get clearance from his doctor. Moreover, an employee's own assessment of his or her own capacity to return to work absent medical clearance may be an unreliable measure, since pronouncements in this regard may be driven not by improved health but by economic adversity.
Finally, the award of a § 13A hearing attorney's fee was not in error. The self-insurer cross-appealed the conference order on the issues of liability for the neck injury and for periods of disability after August 31, 1993. (Tr. 4.) As the judge found causal relationship of the neck injury to the industrial accident and awarded benefits after that date, the employee prevailed for purposes of § 13A(5). Connolly's Case, 41 Mass. App. Ct. 35, 37-38 (1996). Accordingly, we affirm the decision in its entirety.
While the appeal raises no issues on this, the dissent launches into a discussion of conference orders and recoupment under § 11D(3). We do not agree with the views stated, nor can we see how they have anything to do with the appeal before us.
Pursuant to § 13A(6) we order the insurer to pay attorney's fees and costs in the amount of $1,148.01.
So ordered.
_________________________ Susan Maze-Rothstein Administrative Law Judge
_________________________ William A. McCarthy Administrative Law Judge
Filed: January 3, 1997
I would vacate the decision and recommit for further findings of fact because the decision fails to disclose reasoned decision making properly applying the law governing a workers' compensation dispute. See Scheffler's Case, 419 Mass. 251, 258 (1994); G.L.c. 152, § 11C. The decision can only be understood if the judge erroneously placed the burden of proof on the insurer and/or failed to consider the evidence de novo at the § 11 hearing.
The decision inexplicably establishes a level of regained earning capacity which is less than what a full-time employee could earn at minimum wage. The figure selected without explanation is same amount which was found at the § 10A conference. Did the judge fail to render a de novo decision? On whom did the judge place the burden of proving the extent of incapacity? What changed between December 1, 1993 when a partial earning capacity was found and March 18, 1994 when incapacity supposedly ended? The decision is silent on these critical points. It is therefore inadequate for appellate review, mandating recommittal. G.L.c. 152, § 11C.
The analysis begins with a review of the procedural history. The insurer voluntarily paid the employee total compensation from the date of his injury until August 31, 1993, when it felt that there was insufficient medical support for continuing incapacity. (Employee Ex. 2, at 2.) At the § 10A conference on December 14, 1993, each party submitted medical reports supporting their positions. The judge ordered the insurer to pay the employee total incapacity benefits from the date of voluntary termination until November 30, 1993 and partial incapacity benefits thereafter based on a regained earning capacity of $123.74 per week. (Conference Order filed December 21, 1993; Amended Conference Order filed December 27, 1993.) Both parties appealed for a § 11 hearing and the issue of the nature and extent of incapacity from September 1, 1993 was presented for de novo hearing. (Employee Ex. 1, at 2; Ins. Ex. 1.)
The conference is the second procedural step in the claims process at the department. The conference procedure was enacted (St. 1971, c. 974) to allow the board "to expedite compensation claims without the necessity of a full hearing." Assuncao's Case, 372 Mass. 6, 9, 359 N.E.2d 1304 (1977). At the conference, the parties must "identify the issues in dispute" and "produce a summary of any anticipated testimony." The parties may also make oral arguments and submit evidence such as reports of injury, affidavits, or medical records. Within seven days after the conference, the judge must issue a written order stating whether and to what extent relief should be granted.
A party aggrieved by the judge's order may trigger the third stage of the review process: a "hearing" of his or her claim. SeeMurphy v. Commissioner of Dept. of Indus. Accidents, 415 Mass. 218, 223, 612 N.E.2d 1149, 1152-1153 (1993); O'Brien's Case, 424 Mass. 16, 21 (1996).
The appeal of the conference order by both parties placed all the benefits granted in the conference order in jeopardy, because a hearing order which fails to award the same benefits as ordered at conference exposes an employee to § 11D(3) recoupment.Connolly's Case, 1996 WL 441764, 41 Mass. App. Ct. 35 (1996). This section of the Act clearly establishes that the beneficent purposes of the Act do not allow an employee to keep those benefits ordered at conference, which a judge after de novo hearing determines the employee was not entitled to.
As inserted by St. 1991, c. 398, § 32, this section provides in pertinent part:
An insurer that has paid compensation pursuant to a conference order, shall, upon receipt of a decision of an administrative judge or a court of the commonwealth which indicates that overpayments have been made be entitled to recover such overpayments by unilateral reduction of weekly benefits . . . of any remaining compensation owed the employee. Where overpayments have been made that cannot be recovered in this manner, recoupment may be ordered pursuant to the filing of a complaint pursuant to section ten or by bringing an action against the employee in superior court.
Recoupment under G.L.c. 152, § 11D(3) is not available for benefits paid prior to the conference either voluntarily or pursuant to prior approved agreement or Department order. See G.L.c. 152, § 8(2) (requiring benefit continuation).
This recoupment provision was inserted into the Act when the conference procedure was initially created by St. 1971, c. 974. See also St. 1972, c. 742, § 1 ; St. 1979, c. 483. Initially the state treasurer reimbursed the insurer, and the employee reimbursed the state treasurer, for payments the insurer was forced to make by conference order determined after full evidentiary hearing to be wrong.
The recoupment provision was omitted from the Act at the time of the 1985 reforms, but was reinserted in 1991 when the Act was again overhauled to reduce wildly escalating costs. The latest version eliminates the state treasurer as middleman and provides for a 30% offset against ongoing benefits. St. 1991, c. 398, § 32.
Consistent court precedents establish that at a § 11 hearing, the employee bears the burden of proving all of his claims.Connolly's Case, supra, Ginley's Case, 244 Mass. 346, 348, 138 N.E. 719 (1923); Ballard's Case, 13 Mass. App. Ct. 1068, 434 N.E.2d 1306 (1982); Mulcahey's Case, 26 Mass. App. Ct. 1, 3, 522 N.E.2d 431 (1988).
At the § 11 hearing, the administrative judge is required to look at issues which have been appealed "totally anew." Jerzyk v. Mastex Industries, 1 Mass. Workers' Comp. Rep. 43, 45 (1987);Echarry v. Stride Rite Shoe Co., 3 Mass. Workers' Comp. Rep. 193, 194 (1993); Karamanos v. J.K. Luncheonette, 5 Mass. Workers' Comp. Rep. 405, 407 (1991); George v. Chelsea Housing Auth., 10 Mass. Workers' Comp. Rep. 22, 27, n. 7 (1996). Thus, the information provided the judge at conference may not be considered at the third procedural stage, the § 11 hearing, unless it is properly offered and admitted into evidence. G.L.c. 152, §§ 11 and 11B; 452 CMR 1.11 (4) — (7); Cupid v. Epsco, Inc., 6 Mass. Workers' Comp. Rep. 110, 111 (1992) ; Costa v. AT T Technologies. inc., Mass. Workers' Comp. Rep. 298, 300 (1994). Here, the medical reports submitted at conference were not admitted at hearing. The only medical evidence regarding the employee's condition came from the impartial medical examiner.
The judge was required to accord the impartial medical examiner's opinion prima facie weight. G.L.c. 152, § 11A(2);Scheffler's Case, 419 Mass. 251, 257, 643 N.E.2d 1023, 1027 (1994). Because that opinion had prima facie weight, in the absence of contrary evidence, the judge was compelled to find that the opinion was true. Unless the impartial medical examiner's opinion was met and overcome by evidence sufficient to warrant a contrary opinion, the judge had to premise her decision upon it.Id., 419 Mass. at 258-259, 643 N.E.2d at 1027.
The impartial medical examiner opined that there was a causal relationship between the employee's injury and his ongoing complaints despite the lack of true objective neurologic or orthopedic findings on evaluation. The doctor felt that the employee could return for light duty work on an immediate basis so long as he was not required to lift over 20 pounds, repetitively bend and stoop, sit or stand for a prolong period, and had the ability to move about at his own discretion. He further felt that after a transition period of 4 to 6 weeks of light duty responsibilities, the employee could resume regular work activities. (Dec. 5; Employee Ex. 4; Deposition 29-31, 44-45.) The doctor made it clear at deposition that the light duty restriction was based only on the employee's subjective complaints. (Dec. 5; Dep. 31, 44, 53.) Based on his examination alone, he would not have restricted the employee. At examination, he found that the employee magnified his symptoms. (Dep. 53.) His prognosis of a return to full work capacity after four to six weeks assumed that the employee would be willing and able to tolerate the light duty. (Dep. 47.) The impartial medical examiner did not limit the number of hours which the employee could work.
The judge made no findings regarding the employee's physical limitations, including his ability to perform full-time work, during the period of his claim up to March 18, 1994, and specifically between December 1, 1993 and the date of the impartial examination. Contrary to the majority's assertion in footnote 2, there was evidence properly in the record about the employee's condition during the claim period prior to the date of the impartial examination. At deposition, questions were posed to the impartial medical examiner to fill the evidentiary gap for the time period in dispute. (Dep. 33-34.) These questions were not objected to and so the answers were fully admissible. See Liacos, Handbook of Massachusetts Evidence, § 1.10.2, § 3.8.4; Yuksel v. Davidson Chevrolet Inc., 9 Mass. Workers' Comp. 757, n. 1 (1995);Lebrun v. Century Markets, 9 Mass. Workers' Comp. Rep. 692, 695, n. 7 (1995).
Moreover, it was proper for the parties to question the impartial medical examiner about the records submitted by them for the doctor's review. O'Brien's Case, supra, 424 Mass. at 23. The statutory scheme of G.L.c. 152, § 11A(2) clearly envisions that the impartial medical examiner will utilize these reports as foundational material for his opinion.
Questioning the impartial medical examiner as to the foundation for his opinion is in fact a proper way to test the adequacy of the impartial examiner's opinion. See O'Brien's Case, supra, 424 Mass. at 23; Girkout-Swan v. Nynex, 9 Mass. Workers' Comp. Rep. 741, 743, 749 (1995) (doctor asked about psychiatric diagnosis contained in medical records and responded that unable to comment; board ruled his report inadequate as a matter of law).
Unlike George v. Chelsea Housing Authority, 10 Mass. Workers' Comp. Rep. 22 (1996), here, the impartial medical examiner did shed some light on the "gap" period. The impartial medical examiner was asked to review the report of Dr. Kisiel which had been submitted at conference. (Dep. 33.) He was then asked if Dr. Kisiel's November 3, 1993 findings were similar to his own. The impartial medical examiner responded: "Yes they are." (Dep. 34.)
The impartial medical examiner's testimony thus pictured an employee whose November 3, 1993 condition was "similar" to that which he found March 18, 1994. Yet the judge did not address this evidence and, without explanation, decided that the employee's level of incapacity had changed between November 1993 and March 18, 1994. Her findings of fact do not indicate any basis in the medical evidence for her varying assessment of the disputed level of incapacity during that time.
Although it is well established that the determination of loss of earning capacity is the exclusive burden and responsibility of the hearing judge, Raposo v. McDonald's Restaurant, 8 Mass. Workers' Comp. Rep. 286 (1994), and such determination involves not only a medical evaluation of the employee's physical impairment but consideration of other factors such as education, training, age, experience and the nature and requirements of the employee's former job and any modified job offered to him, Scheffler's Case, 419 Mass. at 256, 643 N.E.2d at 1026, the administrative judge failed to make the requisite subsidiary findings of fact which reveal what, if any, limitations existed on the employee's work capacity during the claim period prior to March 18, 1994. It is unclear whether she adopted the opinion of the impartial medical examiner that the employee's condition was "similar" from November 1993 to March 1994 or found it overcome by other evidence.
The administrative judge could reject the impartial medical examiner's uncontroverted medical opinion only if the reasons for rejecting the opinion are drawn from evidence from which findings could properly be made and only if her reasons are set out clearly. Galloway's Case, 354 Mass. 427 (1968); Jones v. Sylvania Products, 7 Mass. Workers' Comp. Rep. 347, 349 (1993). "Because the decision fails to contain that required analysis, the case must be remanded to the administrative judge to make such additional subsidiary findings." Stamatopoulos v. Morgan Construction, 10 Mass. Workers' Comp. Rep. ___, slip op. at 12 (October 22, 1996).
Incapacity benefits are only awarded for work-related physical impairments that cause a loss of earning capacity.Scheffler's Case, 419 Mass. 251, 255, 643 N.E.2d 1023, 1026 (1994). Determinations as to extent of incapacity require "a complete analysis of the factors bearing on the question of incapacity. . . ."Lally v. K.L.H. Research Development, 9 Mass. Workers' Comp. Rep. 428, 429 (1995). Here, as in Mello v. J J Corrugated Box, 9 Mass. Workers' Comp. Rep. 512, 515 (1995), "it is difficult to equate the profile of this employee drawn from the subsidiary findings of fact with the award of an earning capacity of $[123.74] per week" commencing December 1, 1993 and terminating on March 18, 1994. Id. Again, as in Mello, the decision "fail[s] to explain the grounds for the earning capacity determination. See § 11B. And see Mulcahey's Case, supra.
"If the hearing judge's decision is to be affirmed in its present form we should be able to look at these subsidiary findings of fact and clearly understand the logic behind the judge's ultimate conclusion." Crowell v. New Penn Motors Express, 7 Mass. Workers' Comp. Rep. 3, 4 (1993). "It is the duty of an administrative judge to address the issues in a case in a manner enabling this board to determine with reasonable certainty whether correct rules of law have been applied to facts that could be properly found." Praetz v. Factory Praetz v. Factory Mutual Engineering Research, 7 Mass. Workers' Comp. Rep. 45, 47 (1993). Where the decision does not allow us to do so, a recommittal for further findings of fact is appropriate. See G.L.c. 152, § 11C;Mello, supra.
The earning capacity of $123.74 per week as of December 1, 1993 strikingly is the same amount as determined at conference. It raises the question of whether the judge failed to do a de novo assessment.
The decision fails to explain the basis for the earning capacity assessed on December 1, 1993. Nor can the basis be easily divined from the uncontroverted evidence. The impartial medical examiner's opinion, entitled to prima facie weight and adopted as fact by the administrative judge (Dec. 5), did not impose any limitations on the number of hours the employee could work. Nor did the lay evidence indicate any restriction in the hours of available work. The judge credited the testimony of Denise Johnson, the workers' compensation manager for the employer. Based on her testimony, the judge found that the employer had a bona fide light duty program and offered the employee suitable work. The verbal job offer on November 30, 1993 was reduced to writing on December 8, 1993. See Ins. Ex. 2; compare employee's testimony at Tr. 38-41. The employee did not follow up on the job offer by obtaining the required medical information. (Dec. 6.)
The letter reads:
Pursuant to our conversation on Tuesday, November 30, 1993, please be advised that your request to return to work modified duty was approved. You stated that you were ready to return to work full duty and that you would call your doctor so that you could request a clearance letter to bring with you when you returned to work. (emphasis supplied)
During that conversation, you also indicated that you were moving back to Springfield and that you would be moving back to Springfield and that you would be in contact with me regarding your return to work date. One week has past and you still have not updated me on your return to work plans.
The judge's "credit" of Denise Johnson's testimony is inconsistent with the finding of a $123.74 per week earning capacity, as that figure is less than the law requires be paid as a minimum wage for full-time work. The judge did not find that the employee was unable to work a full week, or that the employer's job offer was in some way limited to less than a full work week.
It is not up to the reviewing board to infer a result from evidence which could support various conclusions, depending on the credibility and weight assigned by the trier of fact. The judge must make these calls, making factual findings on the conflicts in the evidence. Yet here, the judge's decision leaves one to wonder about the cause of the employee's under-employment on and after December 1, 1993. For that reason, the decision is inadequate for appellate review. See Avery's Case, 21 Mass. App. Ct. 991, 490, N.E.2d 492 (1986) and Nelson v. ADAP/Rite Aid Auto Palace, 10 Mass. Workers' Comp. Rep. ___, slip op. at 4 (June 5, 1996) (internal inconsistency in decision requires remand).
In addition, the judge's findings may indicate a flawed earning capacity analysis. Once an employee recovers a partial ability to work, he then has the burden of establishing the amount of money he is capable of earning with his limited condition.Mulcahey's Case, 26 Mass. App. Ct. 1, 3, 522 N.E.2d 431, 432 (1988). The judge must apply the provisions of § 35D in calculating that amount. G.L.c. 152, § 35D; Major v. Raytheon Corporation, 7 Mass. Workers' Comp. Rep. 90 (1993). The employee is only entitled to § 35 partial compensation benefits if, because of his injury limitations, he is unable to earn his preinjury wage.Scheffler's Case, 419 Mass. at 256, 643 N.E.2d at 1026.
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: . . . .
(3) The earnings the employee is capable of earning in a particular suitable job; provided, however, that such job has been made available to the employee and he is capable of performing it. The employee's receipt of a written report that a specific suitable job is available to him together with a written report from the treating physician that the employee is capable of performing such job shall be prima facie evidence of an earnings capability under this clause.
(4) The earnings that the employee is capable of earning.
(5) Implementation of this section is subject to the procedures contained in section eight. For purposes of this chapter, a suitable job or employment shall be any job that the employee is physically and mentally capable of performing, including light work, considering the nature and severity of the employee's injury, so long as such job bears a reasonable relationship to the employee's work experience, education, or training either before or after the employee's injury . . .
If the employer made a suitable light duty position available to the employee, which he was able to perform with a reasonable use of all his powers, mental and physical, then the employee's lack of effort in obtaining the required medical release would not prevent the application of G.L.c. 152, § 35D(3). Welch v. A.B.F. Systems, 9 Mass. Workers' Comp. Rep. 407, 411, citing Federico's Case, 283 Mass. 430, 432, 186 N.E. 599, 600, 88 A.L.R. 630 (1933). The record does not support a rational inference that the employee was unable to get clearance from his doctor. The majority, in note 3, supra, fails to acknowledge that the employee bore the burden of proof on this, as on all other issues.
The conclusion on work capacity would properly be based on the earnings available from the light duty job if they were greater than the earnings available in the open labor market. G.L.c. 152, § 35D(3); McNeice v. Berkshire Medical Center, 8 Mass. Workers' Comp. Rep. 246, 247 (1994). In contrast, if the employee did not accept the job because he lacked the physical ability or vocational skills which the job required, the amount of post-injury earning capacity would be calculated pursuant to § 35D(4). Under that statutory provision, the judge would be entitled to use other evidence in the case to set the level of incapacity, such as the employee's testimony that he was capable of performing security work paying $5-6 per hour. (Dec. 4; Tr. 28-29.)
According to Grattan v. Worcester State Hospital, 9 Mass. Workers' Comp. Rep. 226 (1996), "[i]f the hearing decision were to be affirmed in its present form, we ought to be able to look at the subsidiary findings of fact and clearly understand the logic behind the ultimate conclusions reached . . . A decision must disclose reasoned decision making." Id., at 232-233. But from this decision, I am unable to understand the logic behind the judge's earning capacity assessment. Why did the judge assess an earning capacity of only $123.74 commencing December 1, 1993?
And why did the judge find that the partial incapacity ended when there was no change in physical condition on the date chosen for benefit termination? There is nothing in the impartial medical examiner's report suggesting any change of medical condition on March 18, 1994. An impartial examination date which does not evidence an improvement in the employee's physical condition may not be used as the date on which to decrease the level of weekly wage replacement benefits. Lavallee v. Department of Public Works, 10 Mass. Workers' Comp. Rep. ___, slip op. at 5 (June 28, 1996);Cordeiro v. Quaker Fabrics, 9 Mass. Workers' Comp. Rep. 470, 472 (1995).
Nor is there any evidence of a change in the employee's vocational status as of that date.
Thus the decision leaves unanswered questions about whether the correct law was applied to facts which could properly be found. Under such circumstances, the routine response of the reviewing board has been to recommit the case. Consistent with such precedents, cited supra, I would recommit the case for a new incapacity determination applying the above enunciated principles of law. 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, I would permit additional evidence to be taken prior to the entry of the recommittal decision.
So ordered.
_________________________ Suzanne E.K. Smith Adminstrative Law Judge