Employee: Peter Locolle
Employer: Unique Foreign Auto Care
Insurer: Massachusetts Insolvency Fund
Board No.: 02734-01

(Judges McCarthy, Costigan and Horan)

Stephen McNaught, Esq., for the employee
Donald E. Hamill, Jr., Esq., for the insurer

McCARTHY, J. The insurer appeals from a decision in which the administrative judge awarded the employee permanent and total incapacity benefits for an accepted back injury sustained on January 17, 2001. We agree with the insurer's argument that the adopted medical evidence of the impartial physician does not support the judge's finding of permanent and total incapacity. [1] We reverse that finding. However, because the judge allowed additional medical evidence which might support the employee's claim, we recommit the case for further findings. [2]

The judge's general finding on "Disability and Extent of Incapacity" is clearly based on a mischaracterization of the § 11A physician's opinion: "I find and adopt the opinion of Dr. Germond that the Employee was partially disabled for a period of time and is now permanently and totally disabled." (Dec. 20.) Dr. Germond never opined that the employee, at any point, was permanently and totally disabled. The judge's subsidiary findings on this point - - as opposed to his general finding - - are correct:

Dr. Germond opined further that the employee has a partial ongoing permanent disability as a result of his work injury of 1/17/01. He further opined that the employee would be capable of mostly sedentary type work but would be incapable of any repetitive lifting and particularly no lifting of greater than ten pounds. He opined the employee has reached a medical end result. ...

Dr. Germond's opinions with respect to the employee's ongoing disability and causal relationship remained the same [at deposition] as those noted in his report.

(Dec. 8.)

These subsidiary findings do not support the judge's conclusion above. [3] Accordingly, we reverse the decision and recommit the case, as it is appropriate that the additional medical evidence be revisited on the issue of extent of incapacity. [4]

So ordered.

William A. McCarthy
Administrative Law Judge
Patricia A. Costigan
Administrative Law Judge
Mark D. Horan
Administrative Law Judge

Filed: October 21, 2008

[1] The insurer's other argument is that the employee did not prove "worsening" of his medical or vocational condition, sufficient to take his incapacity benefits from the partial awarded at conference to permanent and total. See Foley's Case, 358 Mass. 230, 232 (1970). The argument is misplaced. There is no prior hearing decision in this case. Of course, on recommital, any finding of change in the employee's incapacity must be properly grounded in the evidence.

[2] As the employee did not appeal the administrative judge's decision, he can receive no greater benefit (e.g., § 34A earlier than January 30, 2005; a higher § 35 rate on recommital) than he did in the first decision.

[3] The employee's position on this issue is that the judge was simply applying a vocational analysis under Scheffler's Case, 419 Mass. 251 (1994), and using the § 11A physician's opinion of partial disability as the foundation for an award of total incapacity benefits consistent with the holding of that case. Id. at 257-258. This is not what the judge did, however, and the employee does not address the clearly erroneous general finding on the impartial physician's disability opinion.

[4] For example, the employee's expert, Dr. Robert Pennell, opined that the employee was permanently and total disabled at least as of his June 18, 2004 examination of the employee. (Dec. 10.)