Opinion
BOARD No. 047775-89
Filed: October 22, 1996
REVIEWING BOARD DECISION
(Judges Smith, McCarthy and Maze-Rothstein)
APPEARANCES
James N. Ellis, Jr., Esq., for the employee
Patricia A. Costigan, Esq. for the insurer
The insurer appeals from a decision on its request for reduction, suspension or discontinuance of compensation, which reduced the employee's benefits from § 34 total to ongoing § 35 partial compensation. The insurer argues that the judge erred in refusing to rule on its § 35E issue, renewed on the second day of hearing. The insurer also argues that the judge's subsidiary findings did not adequately address the employer's modified job offer, and that the earning capacity assigned was therefore arbitrary. We agree that an insurer may raise § 35E as an issue prior to the day when an employee turns sixty-five, where the employee will attain that age prior to the conclusion of the pending proceeding. We further conclude that the judge's findings regarding the extent of ongoing partial incapacity were inadequate for proper appellate review. It is therefore appropriate to recommit the case for further findings of fact. G.L.c. 152, § 11C.
PROCEDURAL HISTORY
Stamatopoulos suffered an industrial injury to his lower back on August 25, 1989. (Dec. 5.) The insurer accepted the case, and commenced payment of § 34 temporary total incapacity benefits at the rate of $321.99 per week, based on Stamatopoulos's pre-injury average weekly wage of $482.99. By discontinuance request dated March 25, 1992, the insurer sought to reduce benefits based upon an attached report of Dr. Hurwitz dated January 22, 1992.
After the § 10A conference, by order filed November 20, 1992, the judge authorized the insurer to reduce its weekly incapacity payments to § 35 partial incapacity benefits based on an assigned earning capacity of $165.00 per week. Pursuant to G.L.c. 152, § 10A(3), the insurer appealed for a § 11 hearing. (Dec. 2.)
When the case came on for hearing, the insurer reasserted its issues including § 35E. (April 27, 1993 Tr., 3-4; Dec. 2.) As of this date, Stamatopoulos was age sixty-four.
Stamatopoulos testified in his own behalf. Robert Bernier, an employee of Morgan Construction Company, testified for the insurer regarding the availablity [availability] of suitable work.
As of the time of the hearing, Stamatopoulos had not yet been examined by a § 11A impartial medical examiner. Later on the hearing day, Stamatopoulos was examined by Dr. Edwin T. Wyman, an orthopedic surgeon, who subsequently rendered his report. (Dec. 3.) The judge then convened another hearing.
Section 11A provides in pertinent part:
The impartial medical examiner, so agreed upon or appointed, shall examine the employee and make a report at least one week prior to the beginning of the hearing, which shall be sent to each party. No hearing shall be commenced sooner than one week after such report has been received by the parties.
(emphasis supplied). See O'Brien v. Blue Cross/Blue Shield, 9 Mass. Workers' Comp. Rep. 16 (1995), appeal docketed, No. 07058 (SJC October 30, 1995) (reviewing board refused to enforce 452 CMR 1.11 (1)(d) which permitted a hearing in advance of receipt of the impartial medical examiner's report).
Neither party objected to proceeding in the absence of the § 11A impartial medical examiner's report.
At the second "medical" hearing, Stamatopoulos had turned sixty-five. The insurer again raised its § 35E issue, arguing that the provisions of Section 35E applied to Stamatopoulos's claim for ongoing temporary partial incapacity benefits and that based on Stamatopoulos's own prior testimony, such benefits should be denied or discontinued. The employee moved to strike the insurer's request on two grounds: first, the request was not appropriately before the judge at the "medical hearing" and second, § 35E did not apply to the case. (July 9, 1993 Tr. 5.) The administrative judge allowed the employee's motion to strike the insurer's request. (Id.; Dec. 3.) The case then proceeded with the impartial medical examiner's deposition and a decision was rendered.
FACTS
The judge found that Stamatopoulos was a native of Greece, married and the father of one adult child. He completed six years of primary school in Greece and three years of trade school. He immigrated to the United States in 1971, attended night school to learn English and became a United States citizen. Stamatopoulos speaks English and at least three other languages. (Dec. 4.)
Throughout his adult life, Stamatopoulos worked as a machinist for various employers, most recently at Morgan Construction Company where he commenced employment in 1987 and worked as a milling machine operator. He was required to read blueprints, set up machines, place parts into machines and mill the parts. The parts varied in weight from one-half pound to 300 pounds. The heavier parts were lifted and placed in the machines by electric cranes and the lighter parts were placed in the machine by hand by Stamatopoulos. The majority of the time Stamatopoulos worked on the lighter parts; his job involved lifting, bending, twisting and prolonged standing. (Id.)
After the industrial injury, for two days in May 1991, Stamatopoulos unsuccessfully attempted a return to light duty as a parts preparation person. He was forced to leave each day after a couple of hours because of back and leg pain. (Dec. 4-5.) After the § 10A conference, he also unsuccessfully attempted to work at his son's restaurant in South Carolina as a dishwasher. He was forced to stop work after 1 1/2 hours. (Dec. 5; April 27, 1993 Tr. 22-23.) He has not worked since. (Dec. 5.)
Following his industrial injury of August 25, 1989, Stamatopoulos treated with Doctors Phillip Burke and Hilarios Sakellarides. He also consulted with Drs. Robert Moore, an orthopedist, and Lavit Savla, a neurologist. He underwent an MRI which showed degenerative changes at the L3-4 level. (Dec. 5.)
Dr. Edwin T. Wyman, Jr., the impartial medical examiner, diagnosed Stamatopoulos as having sustained a lumbar strain superimposed on degenerative disc disease which caused Stamatopoulos to have symptoms more severe and more lasting because of the combined effects of the injury and the disease than if either had occurred alone. The doctor found no objective evidence in the diagnostic testing of disc protrusion or herniation. He opined that Stamatopoulos's current symptoms are from his degenerative disc disease. (Dec. 6.)
The judge adopted Dr. Wyman's opinion that, as a result of the industrial injury, Stamatopoulos remained unable to perform work requiring a lot of stooping, bending, lifting, climbing or prolonged periods of sitting but was otherwise able to carry on occupational activities. (Dec. 7, 8.) Although the decision recites that the doctor reviewed the description of a job offered by the employer (Dec. 6), the judge made no findings regarding its medical suitability for Stamatopoulos in his injured condition.
At deposition, Doctor Wyman opined that Stamatopoulos was physically capable of performing the job of parts preparation person at Morgan Construction Company on a full-time basis, provided he was allowed to perform the job sitting, standing or walking at will, that he did not have to reach or twist his body, and that he did not have to lift in excess of thirty pounds at the same level more frequently that every fifteen to twenty minutes. (Wyman Dep, 12-14). The judge did not make factual findings on this evidence.
The judge concluded that Stamatopoulos remained partially incapacitated as a result of his industrial injury and awarded § 35 partial incapacity benefits based upon an earning capacity of $165.00 per week from and after November 20, 1992. (Dec. 8-9.)
The insurer was ordered to pay Stamatopoulos, § 35 partial incapacity benefits at the rate of $211.99 from and after November 20, 1992. (Dec. 9.)
As to the § 35E issue raised by the insurer, the administrative judge found that Stamatopoulos "has been receiving social security disability benefits for approximately two years" (Dec. 8), and held that "the insurer has not offered any evidence to support a finding that Section 35E should apply in this matter." (Dec. 9.)
ISSUES
The insurer raises two issues on appeal. First, it contends that the administrative judge acted arbitrarily and capriciously in refusing the insurer's request to again raise and renew the issue of the applicability of § 35E on the second hearing date. Second, it argues that the administrative judge's finding that Stamatopoulos's earning capacity was only $165.00 was arbitrary, capricious, unwarranted by the evidence and contrary to law. We agree with the first argument but are unable to provide proper appellate review of the second issue because the decision is inadequate.
I. THE JUDGE'S TREATMENT OF THE § 35E ISSUE WAS ARBITRARY AND CAPRICIOUS.
The judge granted the employee's motion to strike the § 35E issue from the case, presumably agreeing with his argument that a § 35E discontinuance request could not be considered at a "medical hearing." (July 9, 1993 Tr. 5.) Having done so, his decision that "the insurer has not offered any evidence to support a finding that Section 35E should apply" is patently arbitrary and capricious. The insurer was prevented by the granting of the motion from finishing the introduction of evidence on the issue.
The judge may have considered the first hearing as the exclusive opportunity of the parties to present lay evidence as he did not have the benefit of the decision in O'Brien v. Blue Cross/Blue Shield, 9 Mass. Workers' Comp. Rep. 16 (1995), appeal docketed, No 07058 (SJC October 30, 1995).
Furthermore, the judge's finding that Stamatopoulos was only sixty-four at the time of the hearing was arbitrary and capricious because it ignored the clear evidence that Stamatopoulos was sixty-five as of the second hearing date. Stamatopoulos's uncontroverted testimony was that he would turn sixty-five on May 15, 1993 (April 27, 1993 Tr. 8); the second hearing occurred on July 9, 1993.
If the judge concluded that § 35E was inapplicable because Stamatopoulos was not age sixty-five at the commencement of the proceeding, he erred. See Collins v. M.B.T.A., 9 Mass. Workers' Comp. Rep. 805, 807 (1995) (judge's failure to address § 35E in case where employee turned age sixty-five after the conference was arbitrary, capricious and contrary to law). "[T]he efficient use of adjudicatory resources requires the joinder of as many issues as might reasonably be combined in one hearing." Harris v. Raytheon Co., 4 Mass. Workers' Comp. Rep. 308, 310 (1990). At the first hearing, the employee testified to facts pertinent to the § 35E issue on direct and cross examination. Between the dates of the two hearings, the employee turned sixty-five and the amount of time since his regular post-injury employment extended beyond two years. Where the parties appeared before the judge for continued hearing, by which time § 35E was clearly applicable, we conclude that it was arbitrary and capricious, and contrary to law to not consider the [§] 35E issue.
We reject the employee's contention that the insurer waived its § 35E issue by concluding the first hearing with the words: "Nothing further, your Honor." (April 27, 1993 Tr., 48.) The insurer had consistently maintained § 35E as an issue from conference forward. Its use of a customary courtesy at the end of the first hearing was simply proper courtroom grace.
The judge's comment about the employee's receipt of social security disability benefits is confusing and implies that he may have erroneously applied the 1985 version of § 35E which hinged on receipt of, rather than eligibility for, old age benefits pursuant to the federal social security act. The 1991 version of § 35E applies to this case. Tobin v. Town of Stoughton, 9 Mass. Workers' Comp. Rep. 118, 133 (1995), appeal docketed, No. 07232 (SJC June 11, 1996).
The 1985 version of G.L.c. 152, § 35E provided:
Any person receiving old age benefits pursuant to federal social security law or receiving pension benefits paid in part or entirely by an employer shall not be entitled to benefits under section thirty-five, unless such employee can establish that but for the injury, such employee would have remained active in the labor market. (Emphasis supplied.) St. 1985, c. 572, § 45.
The 1991 version of § 35E provides in pertinent part:
Any employee who is at least sixty-five years of age and has been out of the labor force for a period to two years and is eligible for old age benefits pursuant to the federal social security act or eligible for benefits from a public or private pension which is paid in part or entirely by an employer shall not be entitled to benefits under sections thirty-four or thirty-five unless such employee can establish that but for the injury, he or she would have remained active in the labor market. The presumption of non-entitlement to benefits created by this section shall not be overcome by employee's uncorroborated testimony, or that corroborated only by any of his family member, that but for the injury, such employee would have remained active in the labor market. (Emphasis supplied). St. 1991, c. 398, § 66.
The insurer maintains that proof of receipt of social security disability benefits established the employee's eligibility for social security old age benefits. It argues that pursuant to 42 U.S.C. § 424 (a) and 20 C.F.R. 404.408, by virtue of reaching his 65th birthday, the employee not only became eligible for old age Social Security benefits but in fact would have been converted by the Social Security Administration from disability benefits to old age benefits. (Insurer's Brief 8.) By granting the employee's motion to strike the § 35E issue, the administrative judge effectively precluded the insurer from either asking the administrative judge to take judical [judicial] notice of that statutorily mandated conversion or offering evidence or law on that issue.
We remand the case for further proceedings regarding the § 35E issue. On remand, each party shall be given the opportunity to fully develop its evidentiary and statutory position on the retirement issue. For cases discussing relevant § 35E evidence, see Tobin, supra, 9 Mass. Workers' Comp. Rep. at 131-132; Harmon v. Harmon's Paint and Wallpaper, 8 Mass. Workers' Comp. Rep. 432 (1994); Quinlan v. Marois Construction Co., 10 Mass. Workers' Comp. Rep. 51 (1996); and Cognata v. Massachusetts Turnpike Authority, 10 Mass. Workers' Comp. Rep. 185 (1996).
II. INADEQUATE EARNING CAPACITY FINDINGS AND ANALYSIS
Where an impartial medical examiner's opinion that the employee can perform available work is based on complete and accurate facts with respect to the requirements of the available job, the judge is required to accord that opinion prima facie weight. G.L.c. 152, § 11A(2); Scheffler's Case, 419 Mass. 251, 257, 643 N.E.2d 1023, 1027 (1994). When such opinion has prima facie weight, in the absence of contrary evidence, the judge must find that the opinion is true. Unless the impartial medical examiner's opinion is met and overcome by evidence sufficient to warrant a contrary opinion, the judge must rest his decision upon it. Id., 419 Mass. at 258-259, 643 N.E.2d at 1027.
The medical portion of this "suitability" assessment is governed by an unrebutted prima facie impartial medical examiner's opinion. Id. Here the report and depositional testimony of the impartial medical examiner were the only medical evidence before the administrative judge. The impartial medical examiner opined that the employee was capable of occupational activities which did not require a lot of stooping, bending, lifting, climbing or prolonged periods of sitting, (Statutory Exhibit I), and the administrative judge expressly adopted that opinion. (Dec. 8.) At deposition, the doctor opined that the employee was physically capable of performing the job of parts preparation person at Morgan Construction Company on a full-time basis, provided he was allowed to perform the job sitting, standing or walking at will, that he did not have to reach or twist his body, and that he did not have to lift in excess of thirty pounds at the same level more frequently than every fifteen to twenty minutes. (Wyman Dep. 12-14.) Robert Bernier testified, and the judge found, that work which would accommodate those physical restrictions had been offered and was available to the employee at Morgan Construction Company on a part-time or full-time basis. (Tr. I, 40-44.)
The administrative judge, however, rejected without explanation the impartial medical examiner's opinion that the employee was capable of full-time modified work and assigned him an earning capacity equivalent to part-time (twenty hours) wages in the modified job offered by Morgan. 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, evidence, he deemed sufficient to overcome the prima facie weight of the impartial physician's opinion that the employee could work full-time within certain physical restrictions which the judge expressly found would be accommodated by the employer. 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 his 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.
CONCLUSION
The administrative judge erred in not entertaining the § 35E issue properly raised and pursued by the insurer. Moreover, the decision of the extent of post-injury earning capacity is inadequate for appellate review. We therefore recommit the case for further proceedings consistent with this opinion.
So ordered.
____________________________ Suzanne E.K. Smith Administrative Law Judge
____________________________ William A. McCarthy Administrative Law Judge
____________________________ Susan Maze-Rothstein Administrative Law Judge Filed: October 22, 1996