COMMONWEALTH OF MASSACHUSETTS
DEPARTMENT OF INDUSTRIAL ACCIDENTS

Employee: Kara Ballentine
Employer: MCI Shirley
Self-Insurer: Commonwealth of Massachusetts
Board No.: 010002-00

REVIEWING BOARD DECISION
(Judges Costigan, McCarthy and Horan)

APPEARANCES
Deborah G. Kohl, Esq., for the employee
Robin Borgestedt, Esq., for the self-insurer

COSTIGAN, J. The self-insurer appeals from an administrative judge's decision awarding the employee, a full-time student, ongoing total incapacity benefits pursuant to G. L. c. 152, § 34. The self-insurer argues the employee failed to prove her claim for § 34 benefits because she did not satisfy the standards enunciated in Satoris v. Business Express, 11 Mass. Workers' Comp. Rep. 644 (1994), and Scholl v. Fixture Perfect, 14 Mass. Workers' Comp. Rep. 484 (2000), for entitlement to total incapacity benefits during the pendency of a vocational rehabilitation program. Finding no error, we affirm the judge's decision.

Kara Ballentine, age forty-three at hearing, began working for the employer as a correctional officer in 1988. Her job required that she be able to control and physically restrain inmates, as well as use a variety of firearms with both hands. On March 22, 2000, she tripped and fell against a steel door at work, injuring her left minor hand and wrist. In August 2001, she underwent unsuccessful carpal tunnel surgery. At the time of hearing, she complained of numbness and tingling in her left minor hand, constant low level pain which increased with exertion, and the ability to type only with one finger of her left hand. (Dec. 3-4.) [1]

The employee's claim sought, in the alternative, § 34 or § 35 benefits from and after June 30, 2005. (Dec. 2.) [2] Following a § 10A conference, the administrative judge, whose decision we review, denied the employee's claim for further benefits, and the employee appealed. (Dec. 1-2.) Pursuant to § 11A, Dr. Eugene Leibowitz examined the employee on April 25, 2006. The doctor opined the employee is permanently partially disabled as a result of her work injury, in that she cannot perform her functions as a prison guard, but she is able to do desk or administrative work without limitation. (Dec. 4-5.)

On September 5, 2006, two weeks before the hearing on her claim, the employee enrolled as a full-time student at the University of Massachusetts, with the educational goal of becoming a teacher, (Dec. 3), specifically, in art education or art therapy. (Employee br. 2.) [3] At hearing, the employee was the only witness, and the impartial physician's report and deposition testimony were the only medical evidence. (Dec. 1.) In his decision, the judge adopted Dr. Leibowitz's prima facie medical opinion and credited the employee's complaints of numbness, pain, and limitations. (Dec. 4-5.) He concluded:

[The employee] has the present ability to perform light and sedentary work. She is an articulate, intelligent woman with management and supervisory transferable job skills. However, I conclude that she is currently involved in a legitimate and reasonable rehabilitation plan designed to return her to a professional position, which would replace her professional position as a corrections officer. I find credible that as a returning student over 40 years of age, she has significant difficulty typing, and spends much more time studying than a normal student does. I find credible that she has dyslexia, and that effects [sic] her ability to perform as a full-time student. She is in the process of an approved IWRP, although not funded by the Commonwealth of Massachusetts. I find that she would be unable to retain a part-time job while engaged as a full time student.

(Dec. 5-6.) Accordingly, the judge awarded the employee ongoing § 34 total incapacity benefits beginning on September 5, 2006. (Dec. 6.)

On appeal, the self-insurer argues that under our decisions in Satoris, supra, and Scholl, supra, the employee was not entitled to § 34 benefits because she did not offer sufficiently specific evidence that her course of study rendered her unable to work part-time. The self-insurer also contends that without expert vocational testimony, the judge was not qualified to determine that the employee's educational program was a good faith effort at vocational rehabilitation designed to return her to her pre-injury wage of $1,170.16. (Dec. 2.) Because the employee was only partially disabled and had exhausted the statutory maximum under § 35, [4]the self-insurer maintains she was not entitled to any weekly benefits, the judge's decision should be reversed, and his award of benefits vacated. We disagree.

In Satoris, supra, we reversed an administrative judge's decision assigning a $300 earning capacity to a partially disabled employee engaged in a full-time mandatory program of vocational rehabilitation: "The judge's determination . . . was an implicit finding that the employee was capable of holding the equivalent of two jobs. We do not think the partially incapacitated employee, however well motivated she obviously is, should be held to such a rigorous schedule." Id. at 646. In Scholl, we explained that " Satoris holds that the time the employee must devote to carrying out an IWRP [Individual Written Rehabilitation Plan] is relevant in determining what earning capacity, if any, should be assigned an employee." Scholl, supra at 487.

The self-insurer maintains the employee offered no coherent or comprehensive evidence as to the time commitment involved in her education, as required by the holdings in Satoris and Scholl. The transcript, however, reveals that the employee detailed the hours involved in her weekly course schedule at UMass, as well as through the Division of Continuing Education, (Tr. 49-55), and she testified that "it's probably over 40 hours when you go through all five classes, including the time that I need to go to the library and study. . . ." (Tr. 50.) Moreover, the judge credited her testimony that she suffers from dyslexia, spends much more time studying than a normal student, and has significant difficulty typing. (Dec. 2.) Therefore, both the employee's testimony and the judge's findings are sufficiently specific to support the conclusion that the employee's full-time course of study, combined with the personal challenges she faces as a result of her injury and her learning disability, precluded her from being engaged in part-time employment.

The self-insurer emphasizes that the employee in Satoris, supra, was engaged in a mandatory program of vocational rehabilitation while, at the time of hearing in this case, there was no IWRP in effect. [5] In Scholl, supra, we made it clear that the judge must take into account the employee's vocational rehabilitation activity regardless of whether an approved IWRP exists:

Even though the dispute here includes a period of time when the employee was a full time student but not enrolled in an IWRP, the judge should consider that fact in determining the employee's earning capacity, if any, during that period of time. What is important in the judge's assessment of earning capacity is that the employee be found to be in a bona fide course of study which can lead to restoration of the employee's pre-injury average weekly wage. Where there is no IWRP, it is the judge's duty to determine the bona fides of both the rehabilitation activity and its time requirements. The judge's findings on these two matters will bear on the judge's assignment of an earning capacity.

Id. at 488-489 n.6 (emphasis added.)

Contrary to the self-insurer's assertion, expert vocational testimony was not necessary to support the judge's finding that the employee "is currently involved in a legitimate and reasonable rehabilitation plan designed to return her to a professional position, which would replace her professional position as a corrections officer." (Dec. 5.) Neither Satoris nor Scholl requires expert vocational testimony on this issue. Just as a judge is free to use his own knowledge and experience in determining earning capacity in the absence of expert vocational testimony, Mulcahey's Case, 26 Mass. App. Ct. 1, 3 (1988), so, too, may he use his expertise, in the absence of such testimony, to determine whether the employee is engaged in a "bona fide vocational plan which can lead to the restoration of the employee's pre-injury average weekly wage." Scholl, supra at 489 n.6. Even if the parties had submitted expert vocational testimony, the judge could have rejected it without discussing it or specifying his reasons for rejecting it. Martin v. Sunbridge Care and Rehab. for Hadley, 22 Mass. Workers' Comp. Rep. 1, 5 (2008).

Therefore, we affirm the judge's decision that the employee is entitled to receive § 34 benefits during the period of her bona fide vocational rehabilitation, not to exceed a combined statutory maximum under §§ 34 and 35 of three hundred sixty four weeks. Pursuant to § 13A(6), the self-insurer is directed to pay employee's counsel a fee in the amount of $1,495.34.

So ordered.

___________________________
Patricia A. Costigan
Administrative Law Judge

___________________________
William A. McCarthy
Administrative Law Judge

___________________________
Mark D. Horan
Administrative Law Judge

Filed: October 16, 2008




[1] At hearing, the parties stipulated that § 34 benefits had been paid from March 22, 2000 to December 22, 2000, and from August 16, 2001 to October 10, 2001. (Dec. 2.) They also stipulated that pursuant to a November 2000 conference order filed by a different administrative judge, the self-insurer had paid § 35 partial incapacity benefits to exhaustion. ( Id.)

[2] The judge's statement that one of the issues presented at hearing was, "[w]hether the employee is entitled to benefits pursuant to Chapter 152, Section 34A for permanent and total disability," (Dec. 3), is contradicted by both his statement of the employee's claim, (Dec. 2), and the Employee's Hearing Memorandum. (Employee Ex. 1.)

[3] Prior to beginning her course of study at UMass, the employee had acquired thirty-seven college credits. (Dec. 3.) She was seeking an additional thirty-three credits for life experience which, when added to her prior credits, would give her two years of college credits. (Tr. 33-34.)

[4] Although the employee had been paid the statutory maximum entitlement of two hundred and sixty weeks of partial incapacity benefits, she advanced a claim, in the alternative, for additional benefits under § 35. That statute provides, in pertinent part:

The total number of weeks of compensation due the employee under this section shall not exceed two hundred sixty; provided, however, that this number may be extended to five hundred twenty if an insurer agrees or an administrative judge finds that the employee has, as a result of a personal injury under this chapter . . . contracted a permanently disabling occupational disease which is of a physical nature and cause.

As appearing in St. 1991, c. 398, § 63.

The judge denied the employee's claim for an extension of § 35 benefits, finding her carpal tunnel syndrome was caused by a "singular traumatic event," and was not an occupational disease she had contracted. (Dec. 5.) Although no such claim was before him, see footnote 1, supra, the judge also found the employee was not entitled to § 34A permanent and total incapacity benefits, based on the adopted impartial medical opinion that she was able to do light sedentary work. ( Id.)

[5]The employee testified that the Commonwealth rejected her first IWRP, developed with this department's Office of Education and Vocational Rehabilitation, which provided for her to return to school at the University of Massachusetts, Amherst. On September 5, 2006, without the Commonwealth's agreement, she began classes in the art and education program at UMass, using student loans and tuition remission available to her as an employee of the Department of Corrections. (Tr. 31-32.) At oral argument, the self-insurer conceded that subsequent to the September 19, 2006 hearing, it had signed a somewhat different IWRP for the employee to attend UMass, which plan was approved by the department.