Opinion
BOARD NO: 000903-92
Filed: January 31, 1996
REVIEWING BOARD DECISION
(Judges McCarthy, Fischel and Wilson)
APPEARANCES
Patrick C. Gable, Esq. for the employee
John R. Cowie, Jr., for the insurer
Charles Tenerowicz appeals from a hearing decision in which an administrative judge awarded partial incapacity benefits under § 35, claiming, among other things, that the judge's earning capacity assignment and his termination of certain medical benefits under § 30 were arbitrary and capricious. We find no error. However, the import of the judge's termination of § 30 medical benefits deserves comment and clarification.
The employee had worked in positions requiring heavy physical labor for thirty years prior to the industrial injury to his back on December 10, 1987. Aetna accepted the case and the employee received weekly temporary total incapacity benefits under § 34 for five years until the aggregate maximum entitlement was reached on December 10, 1992. In apparent anticipation of that occurrence, the employee filed a claim for weekly partial incapacity benefits, to which the insurer joined a request for discontinuance or modification of weekly benefits. In his conference order of September 25, 1992, the judge denied both parties' requests. The employee's appeal brought the case to a full evidentiary de novo hearing which took place on April 22, 1993. (Dec. 1, 3)
An impartial examination was conducted pursuant to G.L.c. 152, § 11A on February 16, 1993. In his report the impartial examiner opined that the employee was at a medical end result, diagnosing chronic back pain causally related to the 1987 industrial injury, and restricting the employee's lifting to twenty-five pounds. The examiner noted that there were no objective findings that would support a "major disability." The impartial physician also stated that he did not consider that the employee's continuing treatments with a chiropractor, massage therapist and osteopath were warranted. (Statutory Ex. 1) The judge adopted the findings of the § 11A physician as prima facie evidence concerning the medical issues in the case, denying the employee's motion to declare the § 11A report inadequate. (Dec. 2, 4-5) The judge awarded the employee partial incapacity benefits based on his average weekly wage of $575.68 and an earning capacity of $375.00 per week, from December 10, 1992 and continuing. The judge also awarded medical benefits under § 30, but only until February 16, 1993, the date of the impartial examination. (Dec. 6-7)
The employee contends that the judge did not give due weight to the employee's age, education, and work experience in assigning the $375.00 per week earning capacity. See Scheffler's Case, 419 Mass. 251 (1994),Frennier's Case, 239 Mass. 89 (1935). While he didn't articulate his reasons in great detail the judge made subsidiary findings addressing these factors (Dec. 3), and was entitled to use his own knowledge and judgment in determining earning capacity, since there was no direct evidence presented regarding the issue. Andrews v. Universal Food, Inc., 6 Mass. Workers' Comp. Rep. 1, 3 (1992). We do not think that the judge's assignment of the $375.00 earning capacity was arbitrary or capricious.
The employee further contends that the judge erred by ordering payment of § 30 medical benefits only through the date of the impartial medical examination, February 16, 1993. "An insurer has an affirmative duty to provide to the employee adequate and reasonable medical and hospital services, and medicines if needed, together with the expenses necessarily incident to such services." Santana v. Belden Corp., 5 Mass. Workers' Comp. Rep. 356, 358 (1991). The judge's findings regarding the reasonableness of medical treatment must be based on expert medical testimony. Cook v. Somerset Nursing Home, 8 Mass. Workers' Comp. Rep. 135, 136 (1994). In the instant case, the judge found that the employee's chiropractic, osteopathic and massage treatments were reasonable until February 16, 1993. As a result of the impartial examination on that date, in which the examiner opined that the employee had reached a medical end result and that further treatments were no longer warranted, the judge terminated § 30 benefits for further treatments under these modalities. As the impartial physician's assessment of the employee's treatments was prima facie evidence pursuant to § 11A(2), the judge was bound by it, unless something in the lay testimony persuaded him to reject it. See Cook,supra, at 136-137. Obviously, the judge did not find any evidence that countered the § 11A physician's opinion on the reasonableness of the employee's medical treatments. There was nothing arbitrary or capricious in the judge's adoption of the impartial examination date for the termination of "reasonable" chiropractic, osteopathic and massage care.
However, we must make clear that the judge's determination of this issue in this case in no way forecloses the employee from claiming § 30 medical benefits in the future. Just as the issue of present incapacity is always subject to being raised by the insurer in a request for discontinuance or modification of benefits, see Himmelman v. A.R. Green Sons, 9 Mass. Workers' Comp. Rep. ___ (March 20, 1995), so too is the issue of "reasonable" medical treatment always on the table. This is particularly true where the employee continues to be partially incapacitated, and presumably is attempting to reenter the work force in some capacity. It would not be unreasonable for such an employee to be checked by a physician at regular and reasonable intervals to mark his progress or deterioration. In no way, therefore, do we interpret the judge's determination of the medical benefits at issue in this case to forever bar the employee from making a § 30 claim related to this injury in the future.
Finally, we dispose of some issues that arise under § 11A. We reject the employee's argument that the impartial physician was biased against the employee because he had performed medical examinations for the insurer. Compare, Tallent v. Massachusetts Bay Transportation Authority, 9 Mass. Workers' Comp. Rep. ___ (December 29, 1995). We pass on the employee's constitutional arguments regarding the § 11A medical examination examination procedure, and refer the employee to the cases of O'Brien v. Blue Cross/Blue Shield, 9 Mass. Workers' Comp. Rep. 16 (1995), appeal docketed, No. 07058 (SJC October 30, 1995), and Kaminsky v. University of Massachusetts, 9 Mass. Workers' Comp. Rep. ___ (October 31, 1995), appeal docketed, No. 95-J-908 (Appeals Court November 29, 1995). The employee's contention that the § 11A report was inadequate due to the fact that it does not address the degree of permanent impairment present in the employee's back has some merit. Section 11A(2) does specify that the report "shall indicate the examiner's opinion as to . . . what permanent impairments or losses of function have been discovered, if any." However, since the judge's order specifically reserved the employee's potential benefits under § 36, the impartial physician's failure to address this issue had no prejudicial effect on the employee's rights under the Act. Whatever error it may have been for the judge to deem the report adequate was therefore harmless.
Affirmed.
____________________________ William A. McCarthy Administrative Law Judge
________________________ Sara Holmes Wilson Administrative Law Judge
Filed: January 31, 1996
I dissent both because of the retroactive termination of medical treatment in this accepted case, and because the earning capacity assigned to Tenerowicz is not supported by the subsidiary findings made.
The judge found the employee worked for thirty years as a heavy construction, "pick and shovel" laborer, and had obtained his G.E.D. degree after leaving school in the tenth grade. (Dec. 3) The judge adopted the § 11A examiners opinion that as a result of the work injury the employee had permanent physical restrictions for lifting and carrying over twenty five pounds. (Dec. 5) He further found "that the employee has minimal transferable job skills due to his limited education and past work history of only doing construction work which requires heavy lifting and carrying." (Dec. 5). Finally, the judge adopted the medical expert's opinion that the employee would be difficult to rehabilitate, (Dec. 5) and assigned the employee an earning capacity of $375.00 per week.
These are the findings that the majority references in concluding that the decision adequately addresses the Scheffler's Case, 419 Mass. 251 (1994) and Frennier's Case, 239 Mass. 89 (1935), factors. One is hard pressed to view them as constituting in themselves the analysis required under Scheffler's Case, supra and Frennier's Case, supra.
Certainly a judge could assign an earning capacity to an employee disabled for his past work, who must reenter the work force with physical restrictions, limited education and minimal transferable skills. Determinations as to extent of incapacity are within the expertise of the fact finder, Scheffler's Case, 419 Mass. 251, 256 (1994), and 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. ___ (July 31, 1995).
Here the subsidiary findings the judge made do not suggest that the employee could readily find work within his abilities on the open labor market. Here, as in Mello v. J J Corrugated Box 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 $160.00 per week. We are hard pressed to find any subsidiary findings supporting the award of an earning capacity.Mello, supra. Again, as in Mello, the decision "fail[s] to explain the grounds for the determination that the employee has an earning capacity. . . ." Id. See § 11B. Id. And see Ballard's Case, 13 Mass. App. Ct. 901 (1982).
We should be able to follow the judge's reasoning from his subsidiary findings to conclusion and clearly understand the logic behind the ultimate conclusion. Crowell v. New Penn Motors Express, 7 Mass. Workers' Comp. Rep. 3(1993). Praetz v. Factory Mutual Engineering Research, 7 Mass. Workers' Comp. Rep. 45 The conclusion here, as in Mello v. J J Corrugated Box Corporation, supra, "is difficult to equate with the profile of this employee drawn from the subsidiary findings". Id. at ___. Defective in form, the decision should be vacated. Id. at ___.
I concur with the majority to the extent that the decision clarifies that the employee is free to claim any further medical benefits in this matter, but I find arbitrary the retroactive termination of medical treatment for this accepted industrial injury, where the judge found the employee presently suffering work related chronic low back pain. (Dec. 5, emphasis added.) The judge's decision to terminate the medical treatment modality the employee had been undergoing for that chronic back condition, and to do so retroactively to the date of the impartial exam, was based on his adoption of the medical expert's opinion that the employee "was at an end medical result. (Dec. 5)
I dispute the majority's statement that the § 11A expert, Dr. J. Robert Kisiel, Jr., characterized the treatments as "no longer warranted". The expert never used those words. What the expert said in his report was that the treatment modalities undergone "are probably not helping the situation to any significant degree." (Statutory ex. 1, emphasis added) If the treatments help even to some degree, the employee should be entitled to the treatment for the work injury.
When an employee is at an "end medical result" there may be nothing that can be done to improve his underlying medical condition, but that is no basis for terminating causally related treatment that is palliative in nature. An employee is entitled to continuing medical treatment for symptoms stemming from an industrial injury, even if the treatment is only palliative.
____________________________ Carolynn N. Fischel Administrative Law Judge.
Filed: January 31, 1996