McCARTHY, J.
The employee, a man with commercial fishing experience dating back to 1946 and Massachusetts Department of Environmental Affairs patrol boat experience since 1962, appeals from the decision of the administrative judge awarding him weekly § 35 benefits of $285.20 based on an average weekly wage of $577.60 and an earning capacity of $150.00 per week "for work in the general labor market which is substantial and not trifling." (Dec. 9.)
The employee suffered a compensable injury on December 4, 1986 when he fell thirty feet off a gangplank and injured his head and neck. (Dec. 5.) He never returned to his former occupation, and received § 34 benefits from the date of injury until November 28, 1991 when the statutory maximum was reached. (Dec. 5.) The employee's subsequent claim for § 34A benefits was granted at a conference, and the self-insurer requested hearing de novo.
In a well-reasoned decision, the administrative judge found the employee was partially incapacitated by "position-related" dizziness and therefore "not capable of performing his former work as a Captain on a patrol boat." (Dec. 7.) However, the judge further found that notwithstanding the employee's diagnosed tinnitus, reported headaches or reported lack of concentration, he would not be prevented from performing "some gainful employment." (Dec. 7.) The judge therefore concluded that the employee "is a highly skilled individual with demonstrated ability to read, write and supervise employees and that his skills and abilities a[re] transferrable to a more sedentary occupation." (Dec. 8.)
Tinnitus is constant ringing or other noise in the ear. The employee's tinnitus condition was bilateral, affecting both ears.
The employee testified that he has one to two headaches each day, lasting for several minutes to half a day each. (Dec. 7; Tr. 16, 25.)
The judge found that the employee's duties for the Commonwealth included patrolling coastal waters, checking vessels' licenses, and, as a captain since 1966, doing paperwork and making out reports, "prosecuting" cases in court, and supervising a crew of two men. He had attended navigation school over three or four years, and held a certificate and Coast Guard Maritime License, now expired. (Dec. 4.)
The employee disputes this characterization of his abilities, arguing that the evidence does not support the judge's conclusion of transferability of the employee's skills. The employee further argues that under the Frennier standard, the employee, who was 67 years old at the time of hearing and is medically incapable of performing his former occupation is entitled to § 34A benefits. See Frennier's Case, 318 Mass. 635 (1945).
The employee testified that he retired at age 62 and subsequently moved to the Dominican Republic, his wife's home, where he lived until her death in 1992. (Tr. 23, 30.)
We find that the administrative judge's conclusion of partial disability and work capacity is supported by ample subsidiary findings, and the judge properly applied the Frennier standard to the facts of the case. The judge carefully considered the testimony of the two witnesses in the case, the employee himself and the impartial physician, Dr. Sciascia, a neurologist. While the judge found the employee's subjective complaints "credible to a degree," and found both witnesses' testimony that the employee had dizzy spells credible, he adopted the doctor's ultimate opinion that the employee was capable of performing sedentary work "which would not put the employee at risk for a fall." (Dec. 7.) The judge also adopted Dr. Sciascia's opinion that neither the employee's tinnitus, headaches, nor trouble concentrating was a bar to gainful employment. (Dec. 7.) The judge based this conclusion not only on the expert medical evidence but also on the employee's testimony that he has engaged in "a fair amount of physical activity on a sustained and regular basis, notwithstanding his medical restrictions." Moreover, the judge properly applied the Frennier standard, considering the employee's age, education, training, and work experience before concluding that the employee had the ability to earn substantial rather than trifling wages and therefore assigning him an earning capacity of $150.00 per week.
The employee testified that he cooked for his family, including five children living at home, three or four days a week (Tr. 29), and drove himself several miles to the doctor's office for appointments (Tr. 37).
We see no error. The decision is neither arbitrary nor capricious nor contrary to law, but rather founded on sound reasoning supported by ample subsidiary findings. § 11C. Accordingly, the decision is affirmed.
Judge Wilson concurs.
FISCHEL, J. (DISSENTING)
We cannot here perform our appellate function under § 11C, where the judge misconstrued portions of the medical testimony, relied upon speculative medical testimony, failed to adequately specify crucial credibility findings, and made inadequate factual findings. For these reasons, this case should be recommitted for proper findings as to the impact on work capacity of the head and neck injuries Frank Firicano sustained on December 4, 1986, when he fell thirty feet and landed on his head.
The judge misconstrued the opinion of the § 11A examining doctor, requiring remand. O'Neil v. E.G. G., 9 Mass. Workers' Comp. Rep. 4 (1995). The judge adopted the § 11A doctor's opinion that the employee was disabled for his prior work on a boat because of "position related dizziness," and adopted the expert's opinion that the employee was medically disabled for any work that put him at risk for falling. But the judge then mischaracterized the expert's opinion to conclude the employee could work on an assembly line.
The § 11A medical expert never said the employee could do assembly line work. On the contrary, he testified that the employee could not work in or around machinery, conveyers, gears, belts, or chains. (Dep. Dr. Sciascia p. 59.) Dr. Sciascia said the employee could not work in a factory environment, but was medically capable of sedentary, secretarial work indoors at a desk, or sit-down bench work, in an office. (Dep. Dr. Sciascia pp. 52, 53, 59.) Although it was the doctor's opinion that the employee should not work in a factory and should not perform sedentary activities in proximity to machinery, conveyers, gears, belts or chains, the judge stated that he was in agreement with the opinion of the expert in concluding that the employee was capable of "light assembly line" work.
Assembly-line work would appear to ignore the restrictions the § 11A impartial explicitly applied. Thus, the judge misunderstood the expert's opinion. Where a judge's erroneous characterization of the doctor's opinion may have affected his reasoning and conclusions, we should remand for clarification. Id. at 5.
The determination of loss of earning capacity involves more than a medical evaluation of the employee's physical impairment. Scheffler's Case, 419 Mass. 251, 256 (1994). Physical impairments have a different impact on earning capacity in different individuals. Id. As the court recently stated in Scheffler's Case:
Education, training, age, and experience affect the ability to cope with the physical affect [
sic] of injury. The nature of the job, seniority status, the attitudes of personnel managers and insurance companies, the business prospects of the employer, and the strength or weakness of the economy also influence an injured employee's ability to hold a job or obtain a new position. The goal of disability adjudication is to make a realistic appraisal of the medical effect of a physical injury on the individual claimant and award compensation for the resulting impairment of earning capacity, discounting the affect [
sic] of all other factors. . . ."
Id. at 256, quoting from L. Locke, Workmens' Compensation § 321, at 375-376 (2d ed. 1981).
Any appraisal of the employee's capacity to earn must be done with regard to the effect of any ongoing complaints causally related to the work injury. To reach the earning capacity determination, a judge must first exercise his discretion to credit complaints he finds work related. The next step for the judge is to determine how the credited complaints contribute to work-related incapacity. The judge did not fully perform his adjudicatory function in these respects. He improperly relied upon the § 11A expert's opinion as to matters neither within the purview of a medical expert, nor as to which the doctor's opinions were founded.
There was testimony in this case as to dizziness, lack of balance, vision difficulties, headaches, forgetfulness, and constant ringing noises in ears. These are medical symptoms lay persons can understand, and which have implications for everyday activities and work capacity, understandable to the layman without need for expert testimony. See Lovely's Case, 336 Mass. 512 (1957). It was the province of the judge to state which complaints he credited as work related, and to make a determination as to how these complaints contributed to any work-related incapacity.
The employee testified that he experienced a constant and worsening ringing in both ears, so uncomfortable that he needed to turn his radio on to distract his mind from the sound in his head. (Tr. 15, 16, 21). He testified as to constant dizziness and headaches lasting up to half a day. (Tr. 15, 17, 19, 20, 24, 25). The employee testified that since the injury he had worsening vision difficulties. (Tr. 17, 21, 24). He testified as to memory problems, inability to concentrate and forgetfulness since the head injury. (Tr. 17, 18). The employee testified that he lacked adequate balance to stand even on land, and restricted his movements to avoid falling to the floor. (Tr. 17, 18). The judge did not make adequate findings as to all these complaints.
In the first step in this analysis, the judge stated that he credited the employee's complaints to some extent, but abdicated his function to specify and clarify which complaints he credited, and to what extent. Although it was the responsibility of the judge, not the doctor, to credit or discredit the employee's complaints, the judge improperly rested his accreditations as to credibility matters on the § 11A physician. This was error. Moreover, in adopting the physician's opinions as to credibility, the judge relied upon that aspect of the § 11A expert opinion that lacked an adequate foundation, and thus was speculative.
Findings made were incomplete in crucial aspects. For example, the judge found that the employee's headaches "occur 1-2 times per day with various duration" (Dec. 7), but failed to indicate the duration he credited. If the judge found the duration of those headaches to be up to half a day, as the employee testified (Tr. 25), the impact of prolonged headaches on the employee's work capacity is a component in disability adjudication.
The impartial doctor testified that he never asked the employee about any vision problems. (Dep. Dr. Sciascia pp. 56-57). Although the employee testified that his headaches lasted up to half a day (Tr. 25), the examiner thought that the headaches lasted but half an hour, each day, and thus were "not impress(ive)." (Dep. Dr. Sciascia p. 55). Although the employee testified regarding post-injury difficulties concentrating and forgetfulness, the § 11A did not record this history or consider these in forming his diagnosis. Id. at 54-56. The expert did not elicit information regarding the extent of the tinnitus, whether it was bilateral, or whether it preceded or only appeared subsequent to the work injury. Id. at 54, 57-59. The expert gave his opinion as to whether tinnitus in an ear would be distracting to a person by answering "I don't have tinnitus, but I would say no, I wouldn't think that is a distracting thing." Id. at 54. The issue is whether tinnitus was distracting for the employee, as the employee so testified. Dr. Sciascia's speculation with regard to his personal reaction to tinnitus in one ear was irrelevant.
Because the preliminary findings as to what he credited are not complete, this board cannot tell whether the judge had an adequate basis for determining how injury-related complaints impacted on work capacity. Moreover, where the judge concluded that the employee suffered from "position related dizziness," findings should have been made on how the positional dizziness impacted on the employee's ability safely to get to or from work. Findings should have been made on the vocational implications of the self-confinement and limited out-of-home activities the medical expert deemed to be a "statement of the restriction." (Dep. Sciascia p. 13.)
Dr. Sciascia deemed it a "statement of the restriction" (Dep. Sciascia p. 13) that the employee confined himself to his home except to go the supermarket across the street, or travel to doctor appointments in his own town.
A judge must "make a realistic appraisal" of the impact of a work injury on an employee's capacity for employment that is substantial and not trifling based on his age, education, training, work experience, physical capabilities, and ability to obtain and hold a new position. Scheffler's Case, supra, at 256; Frennier's Case, 318 Mass. 635 (1945). Here the judge concluded that the employee "is a highly skilled individual with a demonstrated ability to read, write and supervise employees and that his skills and abilities a [ sic] transferrable to a more sedentary occupation." (Dec. 8). The record does not provide an adequate foundation for this conclusion that the employee's pre-injury technical skills survived the work injury and were transferable to another occupation.
The employee, 67 years old at the time of the hearing, had left school in the eleventh grade, and had worked on boats since 1946. He lost his navigational license after the injury both because he was unable to pass the physical and because he did not successfully complete the questions asked on the renewal form (Tr. 10). He never held a white-collar office job. Nothing in the record suggests that his employer of 24 years offered him any desk job with the Department of Fisheries.
Combined with the apparent misconstruing of the medical opinion as to the nature and circumstances of employment foreclosed for the employee as a result of the work injury, the judge's abdication of his obligation to determine whether the employee had ongoing complaints referable to the head injury, and how they impacted on work capacity, and the judge's reliance upon portions of the medical opinion that were speculative, this board is unable to perform our appellate function pursuant to § 11C. The reasoned basis for the decision made cannot be ascertained. For all the reasons indicated above, I would remand this matter for further findings.