Opinion
BOARD No. 482188
Filed: June 27, 1997
REVIEWING BOARD DECISION (Judges Maze-Rothstein, McCarthy and Smith)
APPEARANCES
Brian J. Sullivan, Esq., for the employee.
Michael Ready, Esq., for the self-insurer.
A decision discontinuing G.L.c. 152, § 35 weekly partial incapacity benefits prompted this employee's appeal. Mr. Valente contends that the subsidiary findings inadequately address the central issue in the case, which is whether the employee's right shoulder limitations incapacitate him from gainful employment. He argues that the judge misconstrued the medical evidence. Because we find the decision internally inconsistent with regard to its treatment of the medical evidence on physical limitations, we reverse and recommit for proceedings consistent with this opinion.
The employee, who has no special training or skills and has only worked as a laborer and farm hand, was a furnace man for the employer. His duties were to repair and replace furnaces. On January 24, 1988, the employee dislocated his right shoulder when he tried to pull himself out of a furnace he had been repairing with a jackhammer. (Dec. 3.)
The self-insurer voluntarily paid G.L.c. 152, § 34 temporary total compensation benefits from January 24, 1988 through November 6, 1988, when the employee returned to light duty work. Id. The light duty was of short duration. After returning to heavy labor, his symptoms returned forcing him to leave work on January 16, 1989. Id. The self-insurer resumed payment. Id.
The case went to conference on the self-insurer's complaint to terminate or modify weekly benefits. An administrative judge ordered a modification of payments from § 34 temporary total to § 35 partial incapacity benefits as of March 24, 1992. Id. The parties cross- appealed and a hearing de novo was conducted on January 4, 1993.
The employee and a rehabilitation specialist testified. (Dec. 1-2.) The parties submitted reports from their own medical experts, Dr. Robert Hillier for the employee and Dr. A. Louis Mariorenzi for the self-insurer. (Dec. 2.)
In the ensuing decision, the judge adopted the opinions of both Drs. Hillier and Mariorenzi to find that the employee was no longer medically disabled and was capable of full normal activity with only a restriction on the forceful use of his right arm above shoulder level. (Dec. 7.) The judge also found probative the rehabilitation specialist's opinion that the employee could work full-time as a machine operator or assembler. (Dec. 6-7; Self-insurer's Exhibits 2, 3.) The rehabilitation expert had made his assessments utilizing only the self-insurer physician's medical opinion. (Tr. 60-61.)
The judge also considered a light-duty job offer dated March 24, 1988, three months after the industrial injury, in the employer's malleable iron castings inspection unit for reduced wages. (Dec. 7; see Employee's Exhibit 2.) It is unclear what significance, if any, this offer had with respect to present incapacity.
Based on these findings, the judge ordered discontinuance of 35 partial incapacity compensation as of May 11, 1993, the decision filing date. We have the employee's appeal.
A judge is free to adopt all, part or none of an expert's opinion. Rennie's Case, 357 Mass. 640, 645-646 (1970); Amon's Case, 315 Mass. 210, 214-215 (1943). However, a judge's incapacity determination must hinge on an accurate review of limitations or restrictions. Otherwise an evaluation of how any medical impairment impacts an employee's earning capacity will be flawed. See Howell v. Norton Co., 11 Mass. Workers' Comp. Rep. (February 21, 1997); Nelson v. ADAP/RITE AID Auto Place, 10 Mass. Workers' Comp. Rep. ___ (June 5, 1996); Cottrell v. Union St. Bus Co. 9 Mass. Workers' Comp. Rep. 458, 461-462 (1995).
In this case, the judge adopted both Drs. Hillier's and Mariorenzi's medical opinions on physical limitations. But the problem is that while both doctors' opinions were adopted, they are not in agreement on the nature and extent of the employee's shoulder restrictions. Thus, in adopting both opinions the decision is internally inconsistent.
The judge found that the employee could return to "gainful employment with the only restriction that the employee . . . not make forceful use of his right arm above shoulder level." (Dec. 7.) But Dr. Hillier's opinion, went beyond that. He placed shoulder restrictions, not only above and behind the head, but also on reaching back and placing any external rotation or stress on the anterior shoulder. (Hillier Dep. 36, 62-63, 68-69.) Most importantly, Dr. Hillier opined that the employee should not engage in any kind of repetitive motion or use of the right upper extremity. (Hillier Dep. 36, 68.) In his view, this would preclude working in "any kind of a job where he had to use his right arm over and over again, a machine operator, press operator, a factory worker. . . ." (Dep. 69.) Furthermore, Dr. Hillier's opinion does not support a finding that the employee was no longer medically disabled, because his opinion was that the employee was at an end result and had a permanent right shoulder limitation. (Dec. 5; Hillier Dep. 38-40.) Dr. Mariorenzi, on the other hand, did not offer an opinion on repetitive front motion restrictions, but merely disagreed with Dr. Hillier in this regard. (Mariorenzi Dep. 25-26.)
There is no finding on whether the employee can perform repetitive motion below shoulder level. This is crucial to the case, in light of the vocational opinion that an inability to perform repetitive motions would be a "significant restriction," because the jobs he recommended, such as machine operator or assembler, require such repetitive motion and reaching. (Tr. 73.) Dr. Hillier's uncontradicted opinion was that the employee could not do factory, press, or machine work. (Hillier Dep. 68.)
Section 35D(5) states in pertinent part that "a suitable job or employment shall be any job the employee is physically or mentally capable of performing, including light work, considering the nature and severity of the employee's injury." G.L.c. 152, § 35D(5); see also Zatsos v. Borden Resinite, 11 Mass. Workers' Comp. Rep. ___ (January 24, 1997); Seaman v. A.T. T. Technologies, 8 Mass. Workers' Comp. Rep. 86, 88-89 (1994); Major v. Raytheon Corp., 7 Mass. Workers' Comp. Rep. 90, 91-94 (1993).
On recommittal, if the judge accepts all the physical restrictions of the combined medical opinions, then he must make findings on how these limitations below the shoulder level involving repetitive movements and reaching forward or backward would impact on performing the jobs suggested by the rehabilitation specialist. Findings on the question of an earning capacity for non-trifling work on the open labor market must be made as well. Scheffler's Case, 419 Mass. 251, 260 (1994);Frennier's Case, 318 Mass. 635, 639 (1949).
Accordingly, we reverse the decision and remand for further findings on the extent of medical disability and on the employee's capacity for work within his physical limitations based on the evidence. Because the judge who heard this case is no longer with the department, we forward the case to the senior judge for reassignment to a hearing de novo. During the pendency of the remand proceedings, we reinstate the conference order, effective as of the date of this decision.
So ordered.
______________________________ Susan Maze-Rothstein Administrative Law Judge
______________________________ William McCarthy Administrative Law Judge
Filed: June 27, 1997
The judge did not misconstrue the medical evidence, nor is his decision internally inconsistent. The decision was factually warranted in the sense of having adequate evidentiary and factual support and disclosed reasoned, not irrational, decision making governing a workers' compensation dispute. Therefore it should be affirmed. See Scheffler's Case, 419 Mass. 251, 258 (1994); G.L.c. 152, § 11C.
In his decision, the judge recapitulated the competing medical evidence with painstaking detail. (Dec. 4-6.) The judge in his subsidiary findings of fact accurately recited the insurer's medical expert's opinion. He found that the doctor imposed the following restrictions: the employee "should not make forceful use of the right arm above shoulder level, but below shoulder level the employee would be capable of full normal activity with no restriction and no limitations." (Dec. 6.) This finding by the judge is supported by competent evidence in the deposition of that medical expert. (Mariorenzi Dep. 10, 22-24, 39; Dep. Ex. 2 at 3; Dep. Ex. 4 at 2.) The judge also accurately related the opinion of the treating physician that the employee was more severely restricted. (Dec. 5.)
In his general findings, the judge provided a factual conclusion that the employee had the limitation on which both physicians agreed. He wrote:
Based upon the opinions of Dr. Hillier and Dr. Mariorenzi, I find the employee is no longer disabled. I find that the employee is capable of performing full normal activity and is capable of returning to gainful employment with the only restriction that the employee do (sic) not make forceful use of his right arm above shoulder level.
(Dec. 7.) He then went on to adopt the opinion of the vocational expert premised on that limitation. (Id.)
The probative value of medical testimony is to be weighed by the administrative judge, who is the fact finder in workers' compensation cases. Robinson v. Contributory Retirement Appeal Bd., 20 Mass. App. Ct. 634, 639 (1985). "It is well settled that a judge . . . may select and adopt one expert over another's conflicting opinion. A judge may freely adopt any, all, part or none of an expert's opinion despite submission of conflicting opinions. . . (citations omitted)." Vero v. Paul A. Dever State School, 36, 38 (1995).
Where a judge adopts part of an expert's opinion, he must describe which part. Reis v. Anchor Motor Freight Inc., 9 Mass. Workers' Comp. Rep. 82, 85 (1995). The judge here did so. The choice of which portions of each expert's opinion to adopt was well within the judge's realm of discretion. See Tucker v. General Electric Co., 854, 856 (1996). His decision was clear and cogent. A recommittal for clarification is not appropriate, particularly in light of the fact that a recommittal will necessitate a hearing de novo as the judge no longer serves. The judge committed no reversible error. His decision should be affirmed.
The only apparent error was the termination of compensation as of the date the decision was filed. This error benefited the employee-appellant who did not complain about it. The insurer did not appeal. It is therefore not appropriate to recommit on this basis. See Tremblay v. Lion Precision Corp., 6 Mass. Workers' Comp. Rep. 89, 90 (1992).
______________________________ Suzanne E.K. Smith Administrative Law Judge