Opinion
Board No. 048823-90
Filed: February 14, 1995
REVIEWING BOARD:
Judges Kirby, Maze-Rothstein, and Smith.
APPEARANCES:
Lawrence V. Zecco, pro se.
Thomas Fleischer, Esq., for the insurer.
The employee appeals from a decision on his claim for further compensation. Because the decision is inadequate for appellate review, we vacate and remand for further findings.
Lawrence Zecco received a personal injury to his left knee arising out of and in the course of his employment. The insurer initially disputed his claim and his initial liability case was tried to decision. The decision filed June 4, 1991 awarded Zecco § 35 partial compensation benefits from August 24, 1990, based on an average weekly wage of $320 and an earning capacity of $200. Immediately after the decision issued, Zecco filed the pending claim for further compensation, requesting § 34 total compensation benefits from May 1, 1991. The insurer moved to consolidate this claim with its complaint for discontinuance. Both matters were conferenced on February 12, 1992. By conference order filed February 27, 1992, Zecco was awarded § 34 total compensation benefits from November 12, 1991 to February 12, 1992, plus medical benefits, and the insurer was authorized to terminate ongoing compensation. Zecco appealed to hearing from this conference order. At hearing he reasserted his claim for ongoing total compensation. After formal hearing, the administrative judge denied Zecco's claim for further weekly wage replacement benefits beyond that ordered at conference. The decision rested on the following general finding: "I adopt in part the medical opinion of Dr. Hurwitz and find that any disability the employee may have as a result of his industrial injury of August 23, 1990 does not now preclude him from earning wages equal to or in excess of the average weekly wage he was earning as of the date of the injury." (Dec. 6.)
Zecco appeals asserting that the decision does not clearly state which part of Dr. Hurwitz's opinion was adopted. We agree that the decision is inadequate for appellate review. The administrative judge considered the medical opinions of two opposing experts. He recited that Dr. Jeffrey Metzmaker performed arthroscopic surgery on Zecco on November 12, 1991. Dr. Metzmaker opined that as of October 23, 1992, Zecco continued to have left knee problems. He diagnosed degenerative arthritis in the medial aspect of the knee. In his opinion, Zecco was employable but may need alternative training as Zecco was unable to return to his pre-injury job as a construction laborer. (Dec. 4-5.)
Without specifically rejecting the opinion of Dr. Metzmaker, the administrative judge relied, "in part" on the opinion of Dr. Israel Hurwitz, a board certified orthopedic surgeon. Dr. Hurwitz examined the employee on July 9, 1991, prior to the most recent surgery. At that time he diagnosed knee pain of questionable etiology and "status post-arthroscopy, left knee." In his opinion, Zecco was capable of performing his previous job as a construction worker. (Dec. 5.) Dr. Hurwitz examined the employee again on October 6, 1992, subsequent to the most recent surgery. At that time he diagnosed "1. Status/post operative arthroscopic surgery left knee x 2 with excision of flat tear of the medial meniscus and excision of plica 2. Early degenerative arthritis-left knee." (Dec. 5.) He opined that Zecco's symptoms were difficult to evaluate at that point. He believed that Zecco was capable of work but restricted him against repetitive squatting and lifting over 50 pounds. (Dec. 5-6.) Relying on the opinion of Dr. Hurwitz "in part," the judge found that any disability which Zecco had as a result of his industrial injury did not preclude him from earning his pre-injury level of wages. The judge therefore did not award further wage replacement benefits.
When there is conflicting medical testimony, it is within a judge's authority to adopt all, none or part of the opinion of a medical expert. Antoine v. Pyrotector, 7 Mass. Workers' Comp. Rep. 337, 341 (1993), citing Amon's Case, 315 Mass. 210 (1943). However, where the findings do not disclose what portions of an expert's testimony are found to be fact and do not address internal inconsistencies in that expert's testimony, the reviewing board cannot determine with reasonable certainty whether the correct standards and principles of law have been applied to facts that properly could be found. Thomas v. Wayland Millwork Corp., 8 Mass. Workers' Comp. Rep. 107 (1994); Altshuler v. Colonial Hilton Hotel, 7 Mass. Workers' Comp. Rep. 62, 63 (1993). When a judge adopts "part" of an expert's testimony, he must clearly specify what part. Lyons v. M. B. T. A., 9 Mass. Workers' Comp. Rep. 27, slip op. at 3 (1995).
The judge's decision merely recited testimony without clearly indicating what was found to be fact. The record in this case presented a factual controversy regarding the employee's diagnosis and functional limitations. The judge was required to make a decision on those issues. See G.L.c. 152, § 11B ("decisions . . . shall set forth the issues in controversy, the decision on each and a brief statement of the grounds for each such decision").
As we said in Seaman v. A. T. T. Technologies, 8 Mass. Workers' Comp. Rep. 86, 88 (1994), medical limitations are only one factor a judge must consider in determining the extent of an employee's incapacity. A judge must also consider the employee's age, education, training, work experience, and any other factors relevant to his ability to earn. Frennier's Case, 318 Mass. 635, 639 (1945); LaFlam's Case, 355 Mass. 409, 410-411 (1969). The judge must then make a factual determination of the amount the employee is capable of earning, assuming he exercises reasonable efforts to work. An employee has the burden of proving the nature and extent of his incapacity. Ginley's Case, 244 Mass. 346, 348 (1923). Once the judge has determined that the employee has shown only partial limitations on his work activities, in the absence of direct testimony as to the amount the employee is able to earn with those limitations, the judge is entitled to use his own judgment and knowledge in determining the extent of partial incapacity. Mulcahey's Case, 26 Mass. App. Ct. 1, 3 (1988); Medley v. E. F. Hauserman, 7 Mass. Workers' Comp. Rep. 97, 100 (1993).
Section 35D requires that any award of weekly benefits be based on the greatest of the actual earnings or the amount the employee is capable of earning with the exercise of reasonable diligence. See Major v. Raytheon Corp., 7 Mass. Workers' Comp. Rep. 90, 92-93 (1993); Alexander v. New England Telephone, 7 Mass. Workers' Comp. Rep. 209, 210 (1993). The employee has returned to work part-time. Pursuant to 35D, the judge must determine whether his actual earnings accurately reflect his full earning capacity.
As the evidentiary basis for the findings with respect to the extent and duration of the employee's incapacity is unclear, we must recommit this case to the hearing judge for further subsidiary findings on the extent and duration of incapacity for work. Seaman v. A.T. T. Technologies, 8 Mass. Workers' Comp. Rep. 86, 88 (1994).
In summary, because we find the decision flawed, we vacate it and remand the case to the administrative judge for a new decision consistent with this opinion. In light of the passage of time during the pendency of the appeal, if either party alleges a change in medical condition or vocational skills since the date the record closed or the judge finds that justice so requires, additional evidence may be taken prior to the entry of the remand decision.
So ordered.
Judges Kirby and Maze-Rothstein concur.