FISCHEL, J.
The employee in this appeal argues that the administrative judge erred when he found that the employee had an earning capacity equal to his pre-injury average weekly wage, thereby discontinuing the employee's partial incapacity benefits. Since we find that the judge's findings regarding the employee's work restrictions and corresponding earning capacity are internally inconsistent, we vacate the decision and remand the case for further proceedings.
While working as a cranberry picker, the employee suffered an injury to his back on August 14, 1990 while moving a picking machine. The insurer accepted liability and paid the employee temporary total incapacity benefits under § 34, but thereafter filed a request for discontinuance or modification. An order modifying the employee's benefits based on an earning capacity of $100.00 per week was filed on October 8, 1992. The insurer was not satisfied, and appealed to a hearing de novo. (Dec. 1).
Four days prior to the hearing, the employee underwent a medical examination pursuant to G.L.c. 152, § 11A. It would thus appear that the parties could not have had the impartial report in hand seven days prior to the lay hearing, as required by § 11A. See O'Brien v. Blue Cross/Blue Shield, 9 Mass. Workers' Comp. Rep. ___ (January 26, 1995). We will discuss the remedy for this later in the decision.
Most of the judge's decision consists of recitations of testimony. We have noted the problem posed by recitations without findings. Leveille v. AT T Communications, 9 Mass. Workers' Comp. Rep. ___ (August 31, 1995). The judge notes that the employee, who was 60 years old at the time of hearing, testified as to his ninth grade education and his work experience, which included various heavy labor jobs and nine years as an automobile salesperson. (Dec. 3). At hearing the employee also testified that he had constant pain in his back which significantly limited his daily activities. It appears that the judge credited this testimony of the employee.
The judge made his finding of restricted work capacity "[i]n view of the employee's continuing complaints. . . ." (Dec. 6).
The § 11A examiner diagnosed 1) status post compression fracture T9; 2) herniated disc L5-S1; 3) status post bimalleolar fracture, left ankle; 4) scoliosis; 5) leg discrepancy. The judge adopted the doctor's opinion that causally related the first two diagnoses to the employee's industrial injury. As to residual impairment, the doctor opined that the employee had a partial medical impairment restricting his employment options to positions that required no bending, lifting, carrying, pushing, running or jumping. (Dec. 4-5). When the parties deposed the doctor, he elaborated that his assessment of the employee's work capacity was based on an eight hour day performing sedentary work in an office setting. (Dep. 21-24).
The judge adopted the § 11A doctor's opinion that the employee's back compression fracture and herniated lumbar disc and medical disability resulting therefrom were causally related to the work injury. (Dec. 6). The judge then made what the employee alleges are inconsistent findings with regard to the extent of the employee's earning capacity. First, the judge concluded in his general findings that the employee was capable of performing light duty activities within the restrictions placed by the doctor in the § 11A report. Next, the judge reduced his view of the earning capacity of the employee to sedentary work.
The § 11A examiner based his assessment of medical capacity for work on his view that the employee was physically capable of only sedentary work. He did not deem the employee capable of light work, which can involve more vigorous activity than sedentary work.
The judge stated that "[i]n view of the employee's continuing complaints and his extended period of time away from the work force, I find the employee's work capacity is restricted to sedentary work." (Dec. 6).
The employee argues that the judge was inconsistent in his conclusions regarding the extent of incapacity, finding on the one hand, a capacity for light work, and on the other, a capacity for only sedentary work. The employee contends, and we agree, that "light" duty and "sedentary" duty are two different job classifications. See The Revised Handbook for Analyzing Jobs, U.S. Dept. of Labor, Employment Training Administration, at 12-2 (1991). They are not synonymous terms, and indicate different physical capacities. See Id. Light work includes lifting heavier weights, and more sustained walking and standing than are required to perform sedentary work.
According to The Revised Handbook for Analyzing Jobs, U.S. Dept. of Labor, Employment Training Administration, at 12-2, (1991), Sedentary Work involves sitting most of the time, but may involve walking or standing for brief periods. Id. Jobs are classified as Sedentary Work if walking and standing are required only occasionally, and if lifting is limited to occasional lifting up to ten pounds. Id. Light Work poses physical demands in excess of those for Sedentary Work. Id. A job is rated Light Work when it requires walking or standing to a significant degree; or entails pushing or pulling of arm or leg controls when seated. Id. Light Work may include exerting up to twenty pounds of force occasionally, or up to ten pounds of force frequently, or a negligible amount of force constantly to move objects. Id.
The judge's finding that the employee was capable only of "sedentary" work" but then finding an earning capacity based on a light duty job, are findings that are internally inconsistent. For this reason, the decision cannot stand. See Cambria v. M.B.T.A., 9 Mass. Workers' Comp. Rep. ___ (June 5, 1995); Koelsch v. Cardinal Cushing Hospital, 8 Mass. Workers' Comp. Rep. 340, 341 (1994).
The judge had found the employee's past work experience to be working for himself in house construction, well digging, and cranberry picking, as well as auto sales. (Dec. 3). The judge concluded the employee could return to his past work as an auto salesman, with an earning capacity at least equal to his $340.13 average weekly wage on the date of his industrial accident, and ordered the termination of weekly § 35 partial incapacity benefits.
The employee argues that having found the employee capable of only sedentary work, the evidence does not support the judge's conclusion that the employee could work as an automobile salesperson. Although the judge made no subsidiary findings with respect to the duties of an automobile salesperson, the uncontradicted evidence was that the position of automobile salesperson involved frequent bending, i.e. "getting in and out of cars," as well as a great deal of walking. (Tr. 41, 42). The employee argues that the judge's characterization of this position as "sedentary," therefore, lacks an adequate evidentiary foundation.
Conclusions in a decision are meaningless unless adequately supported by subsidiary finding for which there is evidential support. Petit v.Westvaco Corp., 8 Mass. Workers' Comp. Rep. 228, 234 (1994). We should be able to look at the subsidiary findings of fact and clearly understand the logic behind a judge's ultimate conclusion. Crowell v. New Penn Motor Express, 7 Mass. Workers' Comp. Rep. 3, 4 (1993).
We cannot adequately discern the basis for the judge's assignment of an earning capacity in this matter. On remand, the fact finder should make additional findings with regard to the nature of the employee's past work and, in view of the relevant non-medical vocational factors, his present capacity for his past work or other work in the open labor market that is substantial and not trifling. See Frennier's Case, 318 Mass. 635 (1945), Scheffler's Case, 419 Mass. 251 (1994).
For these reasons, and because of the failure to meet the requisites of § 11A as to the timely receipt of the impartial report prior to hearing, we vacate the decision and return the case to the senior administrative judge for reassignment for a hearing de novo. We reinstate the employee's § 35 benefits pursuant to the October 8, 1992 conference order as of the date of this decision.
The administrative judge who heard the case no longer serves the department.
_____________________________ Carolynn N. Fischel Administrative Law Judge
_____________________________ William A. McCarthy Administrative Law Judge
_____________________________ Sara Holmes Wilson Administrative Law Judge
Filed: December 4, 1995