Opinion
Board No. 105649-86
Filed: April 26, 1995
REVIEWING BOARD:
Judges Kirby, Maze-Rothstein, and Smith.
APPEARANCES:
James L. O'Brien, for the employee.
Lisa S. Molodec, Esq., for the insurer
The employee appeals from a decision on a discontinuance complaint which ordered a retroactive termination of benefits more than two years prior to the date the complaint was filed. We find the judge's action beyond the scope of her authority, arbitrary and capricious, and contrary to law and therefore vacate the decision.
Procedural History
For more than three and a half years, the insurer paid the employee temporary total compensation benefits in a weekly amount of $360.50 pursuant to an Agreement which it filed with the Department on July 8, 1986. On December 27, 1989, the insurer filed a complaint for discontinuance or modification. A year later, the parties attended a conference pursuant to G.L.c. 152, § 10A. At conference, the employee requested a correction in the average weekly wage and asserted the right to ongoing partial compensation from October 15, 1990 at the rate of $360.50.
After the § 10A conference, the administrative judge assigned an earning capacity of $350 per week, found that the pre-injury average weekly wage was $615.65, and ordered the insurer to commence partial incapacity compensation at the rate of $177.10 per week as of December 10, 1990, the filing date of the order. Only the employee appealed the conference order.
At hearing the employee reasserted his claim for partial compensation at the rate of $360.50 per week from October 15, 1990, the date he began to draw a $135 per week salary from his post-injury job. He claimed that the average weekly wage on which his prior benefits had been calculated was $128.03 too low because it failed to include payments into the Teamsters Pension Fund, and Health and Welfare Fund. (Tr. 4.) He argued that, considering his education, training, work experience and other related factors, his earning capacity was considerably less than the $350 per week found by the judge at conference. (Tr. 5.)
The insurer responded with a different calculation of the average weekly wage. (Tr. 5-6.) With respect to the issue of earning capacity, the insurer stated in opening argument: "Mr. Welch presently runs My Travel Agency and certainly does have an earning capacity, and the $350 earning capacity is fair and reasonable and will be fair and reasonable based on the evidence that will be presented." (Tr. 6.) The insurer asserted no claim for overpayment and recoupment pursuant to G.L.c. 152, § 11D(2). The issues thus joined, the hearing commenced.
After the hearing and deposition were completed, the parties submitted closing arguments. The employee briefed the average weekly wage issue. (Memorandum of Law dated September 24, 1991.) The insurer's brief responded to the average weekly wage issue. (Insurer's brief received October 18, 1991.) The employee's response brief was limited to the average weekly wage issue. (Employee's Addendum to Brief dated December 17, 1991.) None of the post-hearing briefs framed an issue of the employee's entitlement to the benefits which had been paid prior to October 15, 1990.
In her decision, the judge correctly noted that the employee's claims were for § 35 partial incapacity benefits from October 15, 1990 to date and continuing, and average weekly wage. (Dec. 2.)
In that section of the decision labelled "Subsidiary Findings of Fact", the judge merely recited evidence without making clear what evidence she believed to be true. She made "Additional Subsidiary Findings" on the average weekly wage issue. She then wrote:
Based upon the Foregoing Subsidiary Finding [sic] of Fact, and in consideration of the testimony and evidence presented including my observation of the Employee, his demeanor as a witness, and judging his veracity as well as taking into account his education, training, and work history and based on my knowledge as an Administrative Judge, I find as follows:General Findings
I find that the employee developed the condition of right knee pain as a result of his work activities during April 24, 1986 while in the course of his employment with Arkansas Best Corporation. I adopt the opinion of Dr. Paul that the condition of the Employee's right knee since March 24, 1986 as well as any disability resulting there from [sic] are causally related to his work injury for which the Insurer has accepted liability, [sic] I also adopt Dr. Paul's opinion that the Employee remains disabled form [sic] his former work as a truck driver involving loading and unloading of heavy materials due toe [sic] the condition of his right knee.
Based on the reports of Dr. Paul and on my observation of the Employee at the conference and hearing, I find that the Employee is no longer disabled from all types of gainful employment in the open labor market. Dr. Paul opines and I so find that as of March 30, 1987 the Employee was capable of performing some type of light duty work of a sedentary nature. I conclude therefore that the Employee's earning capacity as of March 30, 1987 is $300.00 per week. As to the issue of average weekly wage, I find that the Employee's correct average weekly wage is $627.71 per week.
(Dec. 10-11.)
Despite the incapacity claim described in the "Claims and Issues" section of the decision, she ordered that: 1. "[t]he insurer is authorized to discontinue payment of Section 34 benefits to the Employee as of March 30, 1987 to date and continuing. 2. The insurer is ordered to pay Section 35 benefits to the employee based upon an average weekly wage of $621.71 and an earning capacity of $300.00." (Dec. 11, emphasis supplied.) Although the employee raised multiple issues on appeal, we address only the two which are dispositive.
Retroactive Termination of Benefits in Modification Case
The employee contends that the administrative judge's retroactive benefit termination should be reversed. The insurer posits no argument in defense of its backward reach prior October 15, 1990. We agree that the retroactive termination was erroneous. The scope of authority of the administrative judge was limited to deciding those issues in controversy. G.L.c. 152, § 11B. Department rules provide that before taking testimony in a hearing, the insurer must clearly state the grounds on which it seeks to modify or discontinue compensation and "[o]n all other issues, the employee's rights under M.G.L.c. 152 shall be deemed to have been established." 452 CMR 1.11(3). The insurer did not raise the issue of the employee's entitlement to the benefits previously paid by the insurer. Consequently, we hold that under the circumstances of this case, the judge erred in ordering the retroactive termination. See Gebeyan v. Cabot's Ice Cream, 8 Mass. Workers' Comp. Rep. 77, 79 (1994) ("Where there is no claim and, therefore, no dispute, we conclude that the judge strayed from the parameters of the case and erred in making findings on issues not properly before her.").
Incapacity Analysis
The judge found that the employee had an actual earning capacity in excess of the wages paid by the job for which he was vocationally rehabilitated. The following facts are undisputed: The insurer paid for vocational rehabilitation which consisted of an eight week course at Uni Globe Travel School in November 1988. Upon its completion at the beginning of 1989, Welch began to work at My Travel as an unpaid trainee. He began to draw a $135 per week salary from the agency in October 1990 after his wife purchased it. (Dec. 4-5; Employee's Brief 5; Insurer's Brief 4.) Although the judge recites this information in her "subsidiary findings", she fails to utilize it in her incapacity analysis. This failure constitutes legal error. Section 35D sets forth the incapacity analysis which a judge must follow. It 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:
(1) The actual earnings of the employee during each week;.
(4) The earnings that the employee is capable of earning.
For cases applying § 35D see, among others, Vernon v. Park Marion Nursing Center, 4 Mass. Workers' Comp. Rep. 97, 99 (1990); Alexander v. New England Telephone, 7 Mass. Workers' Comp. Rep. 209, 210 (1993); Seaman v. A.T. T. Technologies, 8 Mass. Workers' Comp. Rep. 67, 69 (1994); Dombeck v. Smith Wesson, 8 Mass. Workers' Comp. Rep. 127, 129 (1994).
We recognize that the burden of proof in a workers' compensation case rests with the claimant, Snonatski's Case, 220 Mass. 526, 527-28 (1915), and the burden is on the employee to establish incapacity. Foley's Case, 358 Mass. 230, 232 (1970); Mulcahey's Case, 26 Mass. App. Ct. 1, 3 (1988) and cases cited. However, the basis in law or logic to disregard evidence of reduced wages from work for which the employee was vocationally rehabilitated escapes us.
An employee is entitled to vocational rehabilitation which is reasonable and necessary to return the employee to suitable employment. G.L.c. 152, §§ 30G and 30H. An employee seeking weekly wage replacement compensation has a corresponding duty to mitigate his wage loss by cooperating with vocational rehabilitation. G.L.c. 152, § 30G.
At the time of this decision, § 30G provided in pertinent part:
The office of education and vocational rehabilitation shall contact and meet with each injured employee who it believes may require vocational rehabilitation services in order to return to suitable employment. Any such employee who refuses to meet with the office of education and vocational rehabilitation shall not be entitled to weekly compensation benefits during the period of such refusal.
The section was amended in 1991 to add the following:
An insurer may reduce by fifteen percent the weekly benefits payable to any employee deemed suitable for vocational rehabilitation services by said office when such employee refuses such services, during the period of such refusal . . .
Section 8(2) was also amended in 1991 to add subsection (f) and now reads as follows:
An insurer paying weekly compensation benefits shall not modify or discontinue such payments except in the following situations:. . . .
(f) the insurer has received a communication from the office of education and vocational rehabilitation authorizing suspension or reduction of payment under section thirty G. . . .
Where an employee has returned to full time employment for which the insurer provided vocational rehabilitation training, the wages from that job would ordinarily reflect the extent of his post-injury earning capacity. Such post-injury earnings constitute prima facie evidence of the employee's actual earning capacity. See G.L.c. 152, § 35D(1). A judge cannot disregard them without explanation. The judge should have discussed whether the post-injury job made a reasonable use of all the employee's powers, mental and physical and the earnings reflected those paid for similar work in the competitive labor market. See Federico's Case, 283 Mass. 430, 432, 186 NE 599, 600, 88 A.L.R. 630 (1933). Were the employee's actual earnings low because he failed to seek suitable employment which was available in his community, because it was a family job with an artificial pay scale, or because he lacked the physical ability or vocational skills to earn more? If the former, then the conclusion on work capacity could properly be based on a disregard of earnings available from the post-injury job and an assessment of the earning capacity pursuant to § 35D(4). If the latter, then it would be improper to disregard the wages paid by that post-injury job and his benefits should be calculated based upon them pursuant to § 35D(1). See McNeice v. Berkshire Medical Center, 8 Mass. Workers' Comp. Rep. ___, slip op. at 2-3 (July 29, 1994).
Conclusion
The decision fails to disclose reasoned decision making within the particular requirements governing a workers' compensation dispute. G.L.c. 152, § 11C. Therefore, we vacate it and remand.
Since the hearing judge no longer serves in the department, we return the case to the senior judge for reassignment to a different administrative judge for hearing de novo on the extent of the employee's incapacity on and after October 15, 1990. We suggest that in the interest of judicial economy and efficiency the case be decided, insofar as practicable and where there is no issue of witness credibility, on the transcript and extensive evidence admitted by the former judge. See Nartowicz's Case, 334 Mass. 684, 686 (1956).
So ordered.