McCARTHY, J.
Leslie Mello worked for J J Corrugated Box Corporation (the employer) for twenty three years doing work which involved twisting, bending and heavy lifting (Dec. Pg 3). On November 6, 1985 the employee sustained an industrial injury arising out of and in the course of his employment when he lifted a bundle of boxes while working on a glue machine (Dec. Pg 3). The insurer accepted a right knee injury and paid weekly incapacity benefits under § 34 of the Act together with reasonable and related medical expenses.
When the aggregate maximum entitlement under § 34 was at or near exhaustion, the employee made a claim for permanent and total incapacity benefits under § 34A of the Act. The insurer resisted this claim and after a denial of the claim following a conference, the employee appealed and the case was reached for a full evidentiary hearing before a different administrative judge. Thereafter the hearing judge filed a decision in which he concluded that the employee was not entitled to permanent and total incapacity benefits under § 34A but was entitled to partial incapacity benefits under § 35. We have the case on appeal by the employee.
After considering the briefs of the parties and reviewing the entire record we are satisfied that the hearing judge's decision is defective in three major respects and therefore must be set aside. First, in the course of concluding that the employee was not entitled to permanent and total incapacity benefits under § 34A the judge found that Mr. Mello was entitled to partial incapacity benefits under § 35 (Dec. Pg 8). This is inexplicable since on the date of the injury which is the subject of this claim there was an aggregate maximum of $90,125.00 in weekly benefits available employee payable under § 34 or 35 or any combination of these two sections. Since the employee's stipulated weekly compensation rate is $234.66 he would have exhausted the $90,125.00 aggregate maximum in 384 weeks or 7.38 years. As the claim for permanent and total incapacity benefits begins on January 13, 1993 it appears that any entitlement under § 34 or 35 had been exhausted by that date and certainly by August 25, 1993, the filing date of the decision. An award of § 35 benefits demonstrates a misunderstanding of what benefits were legally available to the employee at the time of the hearing. There is no way of knowing how the judge would have come out in this case if he realized that § 35 partial incapacity benefits were unavailable. The judge failed to apply the applicable law and for this reason alone, the decision must be vacated.
The second area of concern here is the question of expert medical opinion. The employee's medical expert, Dr. Henry M. Toczylowski, a board certified orthopedic surgeon, testified that the employee's cervical and lumbar problems as well as his right knee injury were causally related to the November 6, 1985 industrial injury. The hearing judge rejected Dr. Toczylowski's opinion with respect to causal relationship of the neck and low back. Instead he looked to the opinion of the insurer's board certified orthopedic expert, Dr. Richard Greenberg. The judge notes that Dr. Greenberg felt that the employee's neck problems probably are not related to the November 6, 1985 industrial accident (Dec. Pg 6). This is an appropriate finding because it is grounded in the testimony of Dr. Greenberg (Dep. Dr. Greenberg 19). Nowhere in Dr. Greenberg's deposition or in the attachments thereto does Dr. Greenberg render an opinion one way or another with respect to causal relationship between the employee's lumbar difficulties and the industrial injury. Nevertheless the judge made the following general finding:
I adopt Dr. Greenberg's opinion and find the condition of the employee's cervical spine
and lumbar spine (emphasis added) are not causally related to the injury sustained on November 6, 1985 and therefore are not to be considered in determining the employee's disability in light of awarding compensation benefits (Dec. 7, 8).
As there is no support for this finding in the record, it may not stand.
Finally and perhaps most important, the administrative judge has failed to explain the grounds for his determination that the employee has an earning capacity of $160.00 per week. See § 11B. The judge finds that the employee's "over-all physical condition — right knee injury, lumbar and cervical disc degeneration, causes the employee to be permanently totally disabled. (sic)" (Dec. Pg 7). The judge then excludes the physical consequences of the cervical and lumbar condition and concludes as follows:
I find in considering the employee's knee injury and subsequent surgical procedures that the employee is capable of light work where he would be able to sit or stand as necessary and not spend the bulk of his time on his feet or doing any heavy lifting, and has been so capable since March 5, 1992. In view of the employee's continuing complaints, his need to lie down at times and his extended period away from the workplace, I find that the employee's work capacity is restricted to part-time schedule of twenty hours per week. I find that the employee has been capable since March 5, 1992 of performing part-time light work for earnings of $160.00 per week.
"The determination of loss of earning capacity involves more than a medical evaluation of the employee's physical impairment. Physical handicaps have a different impact on earning capacity in different individuals. Education, training, age, and experience affect the ability to cope with the physical effect of injury." See Scheffler's Case, 419 Mass. 251 (1994). Who is this employee with a $160.00 per week earning capacity? According to the facts found by the judge he has a fourth grade education which was received at a special needs school." He does not read or write well and can be considered illiterate. His only relevant work experience has been medium to heavy factory work." (Dec. pg. 3). Some insight about the quality of the employee's life is gained by other subsidiary findings of fact by the judge.
[The employee] takes medication for pain. He lives on the third floor and must go up two flights of stairs; he does this once or twice a day. He has used a cane for four years. Most of each day he lies down. He will go for the mail or go for a walk when he becomes tired of looking at the walls. He has had no improvement since his injury. The last time he drove his car was five years ago. He does nothing around the house. His wife helps him shower or bath (sic) and helps him dress. He feels he can not do any work part-time or otherwise.
(Dec. 7)
It is difficult to equate the profile of this employee drawn from the subsidiary findings of fact with the award of an earning capacity of $160.00 per week. We are hard pressed to find any subsidiary findings supporting the award of an earning capacity. Explicit findings would have been appropriate concerning the type and amount of part-time light work which this employee is capable of performing. See Ballard's Case, 13 Mass. App Ct. 901 (1982).
A vocational rehabilitation expert evaluated the employee at the request of the insurer and the written assessment was offered into evidence without objection by the employee (TR 5). The hearing judge was sufficiently impressed with this exhibit to quote from it at length. The portion of the vocational assessment set out in the hearing judge's decision reads as follows:
(The employee's) most recent position as a hot melt helper at J J Corrugated Box falls in the medium work category which requires frequent lifting and carrying of objects weighing up to 50 pounds. General educational levels and aptitudes are all below average for this type of work. Consequently, this results in Mr. Mello having minimal transferrable work skills. Because of this and his illiteracy, there are not a variety of jobs to consider for re-employment that do not require heavy physical activity. . . .
In assessing his residual employability, if I were only to consider his knee injury and subsequent surgical procedures, I could assume he would be capable of light work where he would be able to sit or stand as necessary an (sic) not spend the bulk of his time on his feet or doing any heavy lifting. . . . Taking his total physical limitations into consideration combined with his illiteracy and lack of substantial transferrable work skills, this man is virtually unemployable without substantial remediation and rehabilitation. . . .
Based on the above information regarding Mr. Mello's medical status, educational and work history, I do not believe that any further vocational services are warranted at this time. I do not feel this gentleman is a candidate for vocational rehabilitation (Dec. Pg 6).
Nothing in this extract from the vocational rehabilitation assessment supports the award of an earning capacity.
The administrative judge who heard and decided this case no longer serves as such. Because we believe the decision in its present form to be defective we order it vacated. We now return the board file to the senior judge with the request that he assign it to a new administrative judge for hearing de novo on the employee's claim for permanent and total incapacity benefits under § 34A of the Act.
_______________________ William A. McCarthy Administrative Law Judge
________________________ Carolynn N. Fischel Administrative Law Judge
_________________________ Sara Holmes Wilson Administrative Law Judge
Filed: September 5, 1995