COMMONWEALTH OF MASSACHUSETTS
DEPARTMENT OF INDUSTRIAL ACCIDENTS

Employee: Frank Anzalone
Employer: Massachusetts Water Resource Authy.
Self-Insurer: Massachusetts Water Resource Authy.
Board No.: 032442-04

REVIEWING BOARD DECISION
(Judges Koziol, McCarthy and Fabricant)

APPEARANCES
Sean C. Flaherty, Esq., for the employee
Melissa A. Padula, Esq., for the self-insurer at hearing
John J. Canniff, Esq., for the self-insurer on appeal

KOZIOL, J. The self-insurer appeals from an administrative judge's decision ordering it to pay the employee §35 benefits based on an assigned earning capacity of $200.00 per week, from September 23, 2006 to date and continuing. The self-insurer challenges the administrative judge's assignment of the earning capacity, his ruling regarding the impartial medical examiner's report, and his admission and consideration of certain medical records. We agree, in part, with the self-insurer's claims of error and recommit the case for further findings of fact and the assignment of an earning capacity.

Prior to sustaining a low back injury at work on October 18, 2004, the employee, Frank Anzalone, worked as a skilled laborer for the self-insured employer. After the injury, the self-insurer initially paid the employee §34 benefits. On October 12, 2005, upon his return to work for the self-insured in a modified, accommodated job, the self-insurer began paying the employee §35 benefits at the rate of $60.75 per week, based on the employee's actual earnings of $637.39 per week. (Dec. 3, 4.) The employee was terminated from his employment with the self-insured on September 22, 2006. (Dec. 4.)

The primary issues in dispute at the hearing were disability and the extent of the employee's incapacity, if any. The self-insurer asserts that the administrative judge committed several errors in assigning an earning capacity. We agree that one of these claims of error has merit: specifically, the administrative judge made a material finding that was without evidentiary support.

The administrative judge found that the employee was disabled as a result of the October 18, 2004 injury, and that he could not return to his prior work as a skilled laborer for the self-insured. (Dec. 7.) The administrative judge also found that the employee had returned to light work for the self-insured on a "reduced schedule" and for reduced wages until his employment was terminated on September 22, 2006. (Dec. 4.) Notwithstanding that finding, no stipulation was entered, nor was any evidence produced at the hearing, as to the number of hours per week the employee worked in that modified job. [1] After finding that the employee had been working a reduced schedule for the self-insured, the administrative judge found that the employee "is capable of performing the accommodated job that was suitable and available to him at the MWRA before his termination." (Dec. 4.) The administrative judge then made the following finding regarding the extent of the employee's incapacity: "Accordingly, I find that the employee has an earning capacity of $200.00 based on my assessment that he can sustain 20 hours of part-time work and earn $10.00 per hour over a 5-day period." (Dec. 4.)

The administrative judge determined that the employee can perform "light/sedentary work" and that he can "collect tickets at the local theater, greet customers at a warehouse store, checkout customer purchases as they leave a store," and "direct customers to products in a home/garden/landscaping store." (Dec. 4-5.) He then ruled that the employee could secure work in the open labor market as a "greeter in a warehouse store," and determined that such jobs are "limited for the Employee to 20 hours as a result of his physical capabilities and the fact that employers fill these jobs without paying benefits from a large pool of older employees working no more than 20 hours part time. I find that the Employee cannot sustain a more vigorous schedule at this time because of his limitations as referred to." (Dec. 7.)

The twenty-hour or part-time limit to the employee's work capacity does not appear in the testimonial evidence or in any of the medical opinions adopted by the administrative judge. (Dec. 5-6.) The employee's brief suggests that finding may be inferred from the employee's testimony that he could not mow lawns for an eight-hour shift. (Employee br. 10; Tr. 20.) However, lawn mowing was a duty the employee performed as a skilled laborer, (Tr. 9-10), not a duty associated with the accommodated job he performed after his injury, (Tr. 15-18), or the light/sedentary positions suggested by the administrative judge. (Dec. 3-4, 7.) Instead, the administrative judge's finding that the employee has been physically limited to twenty hours of light/sedentary work per week appears linked to his finding that the employee was working a reduced schedule prior to the termination of his employment. (Dec. 4.) That latter finding lacked an anchor in the evidence and it materially influenced the administrative judge's other findings and conclusions regarding the employee's physical capacity to earn wages in the open labor market. (Dec. 4.) Accordingly, the case must be recommitted for further findings of fact and reconsideration of the earning capacity assigned. Dextraze v. New England Tel., 12 Mass. Workers' Comp. Rep. 354, 356-357 (1998)("While a judge may use his own judgment in determining earning capacity, that determination needs to be adequately supported by the subsidiary findings that are grounded in the evidence.")

The self-insurer also claims the administrative judge acted beyond the scope of his authority and contrary to law in finding the impartial medical examiner's report adequate but then admitting additional medical evidence, without a finding of medical complexity pursuant to §11A(2). The administrative judge made the following findings regarding the impartial medical examiner's report: "The report of the impartial medical examiner is adequate. Additional medical evidence was authorized by virtue of the long-standing symptomology [sic] of the Employee's industrial low back injury of October 18, 2004." (Dec. 2.)

We agree that the better course is to provide the precise ground upon which additional medical evidence is being admitted. Compare, Coggin v. Massachusetts Parole Bd., 42 Mass. App. Ct. 584, 588 n.7 (1997)(where administrative judge provided ground for authorizing additional evidence but failed to articulate reasons for that conclusion, record was sufficient to support conclusion there was no abuse of discretion). Unlike the situation in Coggin, here the administrative judge leaves it to the reader to infer the ground upon which the admission of additional medical evidence has been authorized. Because more than one inference may be drawn from this finding, we are unable to determine with reasonable certainty that correct rules of law have been applied. Anderson's Case, 373 Mass. 813, 818 (1977)("The [parties are] entitled to a clear and unambiguous statement of the board's reasoning.") Accordingly, the administrative judge should revisit the issue and clarify his findings in this regard.

Lastly, the self-insurer asserts that the administrative judge erred in admitting the report of one of the employee's treating physicians, Byron Hartunian, M.D., because it was not accompanied by the physician's curriculum vitae. We find no error in the administrative judge's admission of the report offered by the employee pursuant to 452 Code Mass. Regs. §1.11(6). The regulation requires that offered medical reports be accompanied by a "statement of said physician's qualifications." Id. Here, the following statement of certification appears in the physician's report, directly above the physician's signature:

I certify that I am a licensed orthopedic surgeon in the Commonwealth of Massachusetts. The above rendered opinions are given within a reasonable degree of medical certainty. I have reviewed this report. This report is subscribed and sworn under the pains and penalties of perjury.

(Ex. 8.)

On its face, this certification provides a statement of the "physician's qualifications," identifying the physician as an orthopedic surgeon licensed to practice medicine in the Commonwealth of Massachusetts. Moreover, it is executed under the pains and penalties of perjury. This certification satisfies the requirements of 452 Code Mass. Regs. §1.11(6).

The case is recommitted for further findings of fact consistent with this opinion and the assignment of an earning capacity.

So ordered.

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Catherine Watson Koziol
Administrative Law Judge

____________________________
William A. McCarthy
Administrative Law Judge

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Bernard W. Fabricant
Administrative Law Judge

Filed: October 31, 2008



[1]The only evidence appearing in the record regarding the hours of the accommodated job indicated that the employee worked at that job for an eight-hour shift. (Tr. 54.)