Opinion
BOARD No. 06528489
Filed: December 31, 1997
REVIEWING BOARD DECISION
(Judges Fischel, Wilson Levine)
APPEARANCES
JoAnn Meyers, Esq. for the employee.
Daniel R. Wojcik, Esq. for the self-insurer.
This is the employee's appeal from the decision of an administrative judge denying his claim for temporary total incapacity benefits from May 27, 1990 to the present, and ordering instead § 35 partial incapacity compensation from that date and continuing. We affirm the judge on his finding of liability, but because of fatal errors, we remand for a decision de novo consistent with this opinion.
The employee, born in 1946, was educated through the ninth grade, and has a work history of heavy manual labor. (Dec. 4.) As a trash collector for the City of Lowell he lifted barrels into the back of a truck all day. Id. On May 17, 1989, the truck into which he was lifting trash backed up, striking him on his right side and then turning him around and hitting him again on the left side. (Dec. 5-6.) He left work and went home and the next day came to work but just swept up and did no heavy lifting. (Dec. 6.) He reported the injury on May 19, 1989, and went out of work at that time. Id. He returned to work on June 11, 1989, and worked on and off, depending on his pain, until November 2, 1989. (Dec. 6-7.) He has not worked since November 2, 1989, and has had no other accidents. (Dec. 7.) The judge credited the employee's testimony of the description of the accident and the pain that developed in his back following the injury. (Dec. 6.)
The employee filed a claim for compensation seeking § 34 benefits from May 19, 1989 to June 11, 1989; September 9, 1989 to September 18, 1989; and from November 2, 1989 and continuing. A prior administrative judge issued an order of payment on December 10, 1990 awarding § 34 weekly compensation for those time periods through January 27, 1990, at which time § 35 benefits were ordered based on an average weekly wage of $322.00, and an earning capacity of $200.00 per week. (Dec. 2-3.) The insurer appealed from that order, but the administrative judge had left the board, and the case was not heard. (Dec. 2.)
In February 1994 the employee underwent surgery for excision of a ruptured disc at L5-S1, and decompression of the spinal cord at L4-L5. Subsequent to the surgery he filed claim for §§ 34, 13 and 30 benefits from May 27, 1990 to the present and continuing. Id. A new judge heard the case at conference and denied the claim for § 34 compensation, but ordered continuing payment of § 35 partial incapacity benefits as previously awarded. Id. The employee appealed to a hearing de novo. Id.
Prior to the liability hearing, a medical examination pursuant to § 11A was performed on February 17, 1995. (Dec. 8.) This was the sole medical evidence as the parties did not depose the § 11A examiner or move for additional medical evidence. Id.
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 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.
The § 11A examiner, Dr. Joel Saperstein, diagnosed the employee's condition as a ruptured disc at L5-S1; traumatic arthritis at L4-5, L5-S1 level; and status post disc surgery, causally related to the industrial accident. (Dec. 9.) Dr. Saperstein opined that the employee was permanently and totally disabled from ever returning to his former manual labor job as a trash collector. Id. The administrative judge adopted these medical opinions. (Dec. 10.)
The judge noted that the doctor felt the employee should undergo retraining, vocational guidance and rehabilitative therapy, and could work in a sedentary job with restrictions for bending, lifting and standing. (Dec. 9-10.) He adopted the doctor's opinion as to work capacity and physical restrictions. (Dec. 10.) The judge then made the following finding:
I do not find the testimony of the employee to be credible as it relates to the extent and severity of his back pain and disability. The employee is a relatively young man who is, other than for his back problem, a healthy man. The employee has a long work history even though most of his work history has involved heavy manual labor. Given these factors and the impartial physicians[sic] opinion, I find that the employee will be able to work a sedentary job on a full time basis earning approximately five dollars an hour.
(Dec. 10.) Having so concluded, the judge awarded § 35 benefits based on an average weekly wage of $ 322.00 and an earning capacity of $ 200.00 from May 27, 1990 and continuing, along with §§ 13 and 30 medical benefits. (Dec. 12.)
It is the employee's appeal from this decision that is before us. First, he contends that the earning capacity assigned by the judge was contrary to the uncontradicted medical opinion of Dr. Saperstein as to the conditions under which the employee could perform work considering his limitations:
The self-insurer did not file a brief.
This patient is severely limited in lifting, standing and sitting. He should be reeducated in accordance with his basic IQ aptitude and interests, be seen by an appropriate psychological counselor, as well as a work hardening program, and he should have his emphasis tended toward a job that would be sedentary in nature, mainly bench work essentially sitting with intermittent rest periods. After he receives the appropriate education he should start working three to four hours per week, two to four hours per day, and under the guidance of an appropriate supervising physician he should progress as tolerated.
(St. Exhibit 1.)
The employee argues that the judge's determination that the employee could earn $5.00 an hour in a 40 hour week in a sedentary job is unsupported by the medical evidence, which reflects limitations for sitting and a physical capacity for work limited to several hours per day, several days per week, after retraining. (St. Exhibit 1.) We agree with the employee that the § 11A medical expert's opinion does not form an adequate basis for finding the employee has an earning capacity for full time work.
In the absence of testimony as to the earning capacity of an employee, a judge is entitled to use his own judgement and knowledge in determining the question. Mulchahey's Case, 26 Mass. App. Ct. 1, 3 (1988). However, the judge's analysis and findings must reflect a realistic appraisal of the medical effect of a physical injury on the individual claimant and award compensation for the resultant impairment, if any, on his earning capacity. SeeScheffler's Case, 419 Mass. 251, 256-257 (1994); L. Locke, Workmen's Compensation § 321, at 376 (2d ed. 1981). A judge must determine how an employee's residual medical impairments impact on his vocational situation. Valente v. AmCast Indus. Belcher Div., 11 Mass. Workers' Comp. Rep. 339, 340 (1997). It must be clear in a judge's decision that an employee has the capacity to earn the weekly earning capacity assigned with "a reasonable use of all his powers, mental and physical." Gervais v. M.B.T.A., 7 Mass. Worker's Comp. Rep. 128, 129 (1993), quoting Frederico's Case, 283 Mass. 430, 432 (1933).
Where there is uncontradicted medical evidence that the employee's physical limitations would permit him to work only part time, a judge is required to explain with specific and detailed findings why he finds those limitations to be less serious. See Garcia v. Swank Inc., 11 Mass. Worker's Comp. Rep. 105, 107 (1997). The employee submits that the judge's findings that "other than for his back problems" he is a healthy man, and that prior to the injury he had a long work history, albeit in heavy manual labor, do not warrant rejection of the § 11A examiner's opinion on the extent of the employee's post injury limitations. We agree. The disabling condition is the back; the fact that the employee is otherwise healthy is not a basis for finding that the expert's opinion as to the disabling effect of the back condition can be rejected. Similarly, the employee's age and history of heavy manual labor are likewise irrelevant; they do not warrant rejection of the expert's opinion that this employee's back condition leaves the employee only with a part time sedentary work capacity. It is true that the judge also included his disbelief of the employee's testimony as to the extent and severity of his back pain in the mix of factors underpinning his rejection of the impartial's opinion. However, the judge did not find that each factor, standing alone, was sufficient to reject the impartial's opinion. Therefore, inasmuch as inappropriate factors were included in the mix, the judge's rejection of the impartial opinion must be reversed.
Relying on lack of credibility of the employee's complaints may also not be sustainable if, for example, the impartial's opinion on medical disability is based on objective factors.
We remand this case, because we do not find the judge's decision supports his apparent rejection of the only medical opinion on the employee's post injury ability to engage in work activities. SeeMello v. J. J. Corrugated Box Corp., 9 Mass. Workers' Comp. Rep. 512, 515 (1995); Praetz v. Factory Mut. Eng'g Research, 7 Mass. Workers' Comp. Rep. 43, 45-46 (1993). On remand, the judge should consider the medical evidence and vocational factors, and make findings as to the ability to perform remunerative work of a substantial and non-trifling nature on the open labor market. Frennier's Case, 318 Mass. 635, 639 (1949).
The employee next argues that the administrative judge erred in awarding § 35 partial benefits, rather than § 34 total compensation, during the time that he was hospitalized and recuperating from the February 1994 surgery. It is established that where a judge neglects to make findings on the effect of surgery on an employee's earning capacity, the case will be remanded for further consideration. Gherardi v. Rexnord, Inc., 7 Mass. Workers' Comp. Rep. 229, 231 (1993), citing Smith v. Theta J. Corp., 6 Mass. Workers' Comp. Rep. 172 (1992). As there is no medical evidence regarding that period of time, or indeed of any time prior to the § 11A exam, and where the evidence suggests some periods of total incapacity, this would be an appropriate case for the judge to have exercised his authority to sua sponte require additional medicals. See Miller v. Metropolitan Dist. Comm'n, 11 Mass. Workers' Comp. Rep. (July 9, 1997); Wilkinson v. City of Peabody, 11 Mass. Workers' Comp. Rep. (May 1, 1997). Such an exercise of discretion would have provided the parties with an opportunity to make out their positions on a disputed issue. SeeO'Brien's Case, 424 Mass. 16, 24 (1996).
[T]he administrative judge may, on his own initiative . . ., authorize the submission of additional medical testimony . . . ." G.L.c. 152, § 11A.
Accordingly, we affirm the judge's finding of liability for this injury but vacate his finding as to extent of earning capacity. We remand this case for findings on the extent of medical disability and its effect on the employee's capacity for non-trifling work on the open labor market considering the nature and severity of the injuries. See Scheffler, supra at 639 (1949). Because the judge who heard this case is no longer with the department, we forward it to the senior judge for reassignment to a hearing de novo.
So ordered.
________________________ Carolynn N. Fischel Administrative Law Judge
________________________ Sara Wilson Administrative Law Judge
________________________ Frederick E. Levine Administrative Law Judge
Filed: December 31, 1997