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JOHN FOX, EMPLOYEE vs. CLEAN HARBORS, INC., EMPLOYER, NATIONAL UNION FIREINS., INSURER

SMITH, J.

The employee appeals from the denial of his claim for compensation. He claims that having found a work injury, the judge erred in denying and dismissing his claim. We agree that the decision does not adequately dispose of the issue of medical treatment and therefore remand for further findings on that issue.

John Fox received a personal injury arising out of and in the course of his employment as operations manager for Clean Harbors Inc., when he slipped and fell on the loading dock. The accident aggravated his preexisting spondylolisthesis. Although Fox claimed to have been initially incapacitated from May 1, 1989, to May 15, 1989 (Employee Ex. 2.), the judge found that he was only out of work for a few days. (Dec. 5.) Fox treated with a chiropractor until September 24, 1989, when he stopped work for reasons unrelated to his injury. He did not resume medical treatment for his back until March 1991. Based upon the medical opinion of Dr. Wyman, the judge found that the effects of the aggravation ended within six months of the injury and that disability after November 1, 1989, was not causally related to the work injury. (Dec. 7, 8.)

G.L.c. 152, § 29 provides that "[n]o compensation pursuant to section thirty-four or thirty-five shall be paid for any injury which does not incapacitate the employee from earning full wages for a period of five or more calendar days." Insurer exhibit 2 would support a finding of only four days lost time; however, the judge did not make this precise finding.

The judge expressly concluded that the employee received an industrial injury but failed to prove a loss of earning capacity resulting from it. (Dec. 8.) However, she did not discuss the medical claim; the decision discloses no reason for its denial.

On appeal, the employee seeks an award of medical benefits and attorney's fees. The insurer responds that there were no outstanding medical bills for treatment during the period found compensable; that the unpaid chiropractic treatment was rendered two years after the industrial accident for a condition found to be unrelated to the work injury. (Insurer's Brief 1-2.)

Section 11B requires an administrative judge to decide each issue in dispute and to provide a brief statement of reasons for each such decision. In his issues statement, the employee's medical claim is unspecific. (Employee's Ex. 2.) The exhibit regarding this issue, Employee's Ex. 3, merely lists a balance of $1089 without indicating the dates of service. The insurer's issues statement does not dispute the reasonableness or necessity of medical treatment. It defends on the basis of no liability, disability or causal relationship. (Insurer Ex. 1.) These defenses are repeated in the insurer's closing argument. The judge adequately addressed the insurer's issues in her decision. Her decision on them can explain the failure to award medical benefits if the information in the insurer's brief is correct.

The insurer attached to its brief before the reviewing board documents not offered into evidence at the hearing, indicating that the medical bills for treatment during the period found compensable had all been paid by the insurer prior to the filing of the claim. These documents should have been presented at the hearing level.

The reviewing board is not a fact-finding body. G.L.c. 152, § 11C. This dispute must be resolved by the administrative judge. We therefore remand for a determination of whether at the time the claim was filed, the insurer had paid in full all the employee's medical bills related to the injury up to the date that the judge found as a fact that the effects of the work-aggravation ceased, to wit: November 1, 1989. If such payment had been made, the employee is not entitled to the claimed benefits or to legal fees and costs pursuant to G.L.c. 152, § 13A.

So ordered.

Judges Kirby and Maze-Rothstein concur.

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FOX v. CLEAN HARBORS, INC
(Aug 3, 1995)