McCARTHY, J.
The insurer appeals from an administrative judge's decision denying the insurer's request to discontinue payment of weekly § 34A permanent and total incapacity benefits. The insurer argues that the decision is contrary to law insofar as the judge relied on a vocational expert's opinion that the employee was not capable of performing full-time sedentary work to overcome the opinion of the § 11A physician on that issue. Because the vocational expert opinion was competent evidence for the judge to consider in his assessment of the employee's loss of earning capacity, we affirm the decision.
The employee sustained an industrial injury to his back on December 10, 1981. (Dec. 2.) The insurer accepted liability, and paid § 34 temporary total incapacity benefits. (Dec. 3.) Over the years following his accident, Crosby underwent seven back surgeries, the last one in 1991. (Dec. 4.) After temporary total benefits were exhausted, the insurer accepted the employee's claim for § 34A permanent and total incapacity benefits on November 1, 1986. (Dec. 2.) A number of years later, the insurer filed a complaint seeking discontinuance of weekly permanent and total incapacity benefits. After a § 10A conference held on March 14, 1994 the complaint was denied. The insurer appealed and the complaint went to a hearing de novo. (Dec. 1.)
Mr. Crosby was examined pursuant to the provisions of G.L.c. 152, § 11A by an orthopedic surgeon, Dr. Joseph M. DeMichele. Dr. DeMichele opined that the employee suffered from chronic low back and right lower extremity pain syndrome, secondary to lumbar radiculopathy and perineural fibrosis. The doctor causally connected the diagnosed medical condition to the employee's 1981 industrial accident and the seven back operations that followed. Dr. DiMichele opined that the employee had reached a medical end result, with a permanent functional impairment of his spine of 35%, equivalent to 21% of the whole person. While permanently disabling the employee from returning to his previous heavy manufacturing occupation, the doctor opined that the employee was capable of performing sedentary employment on a full-time basis. The doctor, however, placed the following restrictions on the employee: that he lift nothing over ten pounds, that he avoid prolonged sitting, standing, walking, frequent bending or climbing, and that he be allowed to change posture as needed, which the doctor described as every ten to fifteen minutes. (Dec. 5; DeMichele Dep. 14.)
Paul R. Blatchford, a vocational expert, testified for the employee by way of deposition. Crosby had performed various standardized vocational aptitude tests when interviewed earlier by Blatchford. (Blatchford Dep. 7, 16.) In his resulting vocational evaluation of the employee, Blatchford concluded that Mr. Crosby had the intellectual capacity to perform a variety of sedentary positions suggested by the insurer's vocational expert, but that he would have difficulty, due to increased pain under any exertion. (Dec. 7-8; Blatchford Dep. 21-22.) Because of the employee's physical limitations, Mr. Blatchford opined that he would not be capable of sustaining a sedentary job in the open labor market. (Blatchford Dep. 24-26.)
The judge concluded as follows:
[The employee] does not have the residual functional capacity for sedentary work. Given his seven back operations, his chronic low back pain
and right lower extremity pain syndrome, secondary to lumbar radiculopathy and perineural fibrosis, the employee's incapacity precludes him from earning no more than entry-level minimum wages during full-time sedentary employment.
His current disability does not afford him the opportunity to earn or perform a job other than that of a trifling nature.
I adopt, in part, the opinion of the impartial physician, Dr. Joseph M. DeMichele that the employee is permanently disabled to perform the regular duties of his previous occupation.
I find the employee, in the light of his age, education, work experience and current medical condition relating to his December 10, 1981 industrial accident, is unable to engage in any work on a sustained basis.
I find the employee not only unable to return to his previous employment, but unable to make a vocational adjustment to other work of more than a trifling nature.
(Dec. 9-11.)
The judge therefore ordered that the insurer continue to pay § 34A benefits. (Dec. 11.) See Frennier's Case, 318 Mass. 635, 639 (1945) (award of § 34A benefits warranted where "evidence shows that the employee's disability is such that it prevents him from performing remunerative work of a substantial and not trifling character . . . .")
The insurer argues on appeal that the vocational expert was not qualified to render an opinion on whether the employee, given his work-related medical condition, had the capacity to perform full-time sedentary work. We disagree. This is exactly what the vocational expert was competent to assess. As we recently stated in Simoes v. Town of Braintree School Dept., 10 Mass. Workers' Comp. Rep. ___ (November 12, 1996), "It was the judge's prerogative to credit the vocational expert's opinion on a multifaceted analysis of work capacity over that of the § 11A doctor's solely medical opinion of a physical capacity to work, because the `determination of loss of earning capacity involves more than a medical evaluation of the employee's physical impairment.'" Id., quoting Scheffler's Case, 419 Mass. 251, 256 (1994). As inSimoes, here "[t]he vocational expert stayed within his field to arrive at a vocational, not a medical opinion. His opinion was based on his interview with the employee, his own personal observations and his analysis of the employee's performance in various intelligence, aptitude and dexterity tests certified by the American Board of Vocational Experts." Simoes, supra. The judge noted in his subsidiary findings, that
[t]here was no doubt intellectually that the employee has the ability to perform the jobs listed by [the insurer's vocational expert], such as telephone solicitor, telemarketing, sales clerk, cashier and security guard. The issue in Mr. Blatchford's mind was, did the employee have the ability to sustain these activities as the result of his increased levels of problems he experiences following any type of exertion? The employee, he stated, obviously could probably show up for a job but, in his opinion, the employee would have difficulty predicting whether he could attend work on a three or four or five time a week basis, or a part time nature.
(Dec. 7-8.)
Although the § 11A doctor found the employee capable of performing full-time sedentary job duties, he added the relevant restrictions of avoiding prolonged sitting and being allowed to change posture as needed, probably every ten to fifteen minutes. (Dec. 5; DeMichele Dep. 14.) These medical restrictions support the vocational expert's assessment of the "employee's ability to hold a job or obtain a new position." Scheffler, supra.
The prima facie weight of the § 11A medical opinion ends where the non-medical part of his opinion begins. "When the doctor opined that the employee could do `[sedentary] work' he ventured into the employee's vocational capacity. At that point his opinion became ordinary evidence with no special legal weight." Simoes, supra. The court in Scheffler, supra, instructed:
After giving proper weight to the prima facie
and other
evidence, the administrative judge would then find the facts and apply appropriate legal standards to determine whether the employee has suffered a loss of earning capacity.
Id. at 257 (emphasis added). We concluded in
Simoes, supra, that "[t]here was nothing contrary to law in allowing the "other evidence" to supplement the prima facie status of the medical conclusions concerning the employee's condition; it simply provided more for the judge to use in conducting a
Scheffler analysis to determine the effect the work injury had on this employee's chances of gainful employment."
Simoes, supra. We likewise see no error in the present judge's reliance on the employee's vocational expert testimony. We therefore affirm the judge's factual finding that the employee continues to be permanently and totally incapacitated. The employee shall be paid the reasonable costs of this review including counsel fees of $1,250.00 under § 13A(9).
____________________________ William A. McCarthy Administrative Law Judge
__________________________ Susan Maze-Rothstein Administrative Law Judge
Filed June 2, 1997
SMITH, J. DISSENTING.
I would reverse the decision and recommit the case for a proper incapacity assessment of this employee who rides a motorcycle, uses a snowblower, is not regularly taking painkillers, and whose own treating physician believes has the physical ability to return to the labor market in some capacity.
The judge erred as a matter of law when he concluded that an employee who has the ability to earn minimum wage for full-time work can be entitled to ongoing § 34A benefits for permanent and total incapacity. The judge characterized this level of earnings as "trifling" (Dec. 9) and therefore did not use it to determine the post-injury earning capacity. In so doing, he violated G.L.c. 152, § 35D. Section 35D provides, in pertinent part:
G.L.c. 151, § 1, "Oppressive and unreasonable wages; validity of contracts" provides:
It is hereby declared to be against public policy for any employer to employ any person in an occupation in this commonwealth at an oppressive and unreasonable wage as defined in section two, and any contract, agreement or understanding for or in relation to such employment shall be null and void.
A wage of less than four dollars and seventy-five
cents per hour, in any occupation, as defined in this chapter, shall conclusively be presumed to be oppressive and unreasonable, wherever the term "minimum wage" is used in this chapter, unless the commissioner has expressly approved or shall expressly approve the establishment and payment of a lesser wage under the provisions of sections seven and nine. (Text of section effective until January 1, 1997; amount increased thereafter to five dollars and twenty-five cents per hour).
For purposes of sections . . . thirty-four A and thirty-five, the weekly wage the employee is capable of earning, if any, after the injury,
shall be the greatest of the following: —
(4) The earnings that the employee is capable of earning. (emphasis supplied).
In addition, the judge's key factual finding on the exployee's inability to sustain employment is arbitrary and capricious. The judge adopts the impartial medical examiner's opinion that the employee can perform light sedentary type duties with restrictions against for heavy lifting over 10 pounds, avoiding prolonged sitting, standing, walking, frequent bending, climbing, provided he is able to change posture as needed. (Dec. 5, 10); see (DeMichele Dep. 14-15.) The impartial medical examiner's opinion is consistent with that of the employee's treating physician. (Dec. 6); see (DeMichele Dep. 18.)
The judge rejects the consistent medical opinions that the employee can work full time within these limitations, and finds instead that he is unable to engage in any work on a sustained basis. Compare (Dec. 5, 6) with (Dec. 11). See (DeMichele Dep. 15-17.)
A judge may only reject uncontroverted medical opinions for a rational reason. The reason he gives is the testimony of the vocational expert. The vocational expert opined that "at this time [t]he [employee] would not be able to sustain sedentary or light exertional, unskilled occupations." (Blatchford Dep. 21; see Dec. 8.) When asked the basis for that opinion, he responded:
Primarily, its the difficulty with sitting for prolonged periods of time; the exacerbation of pain in the back area with sitting; the difficulty with concentration; the obvious poor test results that he had of a sedentary nature; and in terms of standing, the difficulty with using his arms and hands on a repetitive basis.
(Blatchford Dep. 21-22.) The testing the vocational expert gave required the employee to engage in activities prohibited by the doctor. The doctor prohibited prolonged sitting. The vocational opinion that the employee could not sustain work was based on the assumption of intolerable pain caused by prolonged sitting.
A vocational expert may competently opine that there are no jobs available in the competitive labor market which suit the employee's physical limitations described by the impartial medical examiner. Or he may opine that the employee is unqualified by virtue of his background, educational and training to obtain the jobs which do fit those limitations. See Scheffler's Case, 419 Mass. 251, 257 (1994) (the impartial medical examiner's job is "to describe the employee's ability to perform certain tasks and to state the restrictions on is ability to work"). However, a vocational expert opinion based an assumed violation of the work limitations is irrelevant. It bears no rational relationship to the required incapacity analysis.
Because the decision evidences both legal error and arbitrary and capricious fact-finding going to the central issue in the case, it is appropriate to reverse the decision and recommit for further findings of fact on the extent of incapacity. See G.L.c. 152, § 11C.
___________________________ Suzanne E.K. Smith Administrative Law Judge