Yvonne Green Employee
Life Care Centers of America Employer
Old Republic Insurance Company Insurer
No. 035669-10
Massachusetts Workers Compensation Decisions
Commonwealth of Massachusetts Department of Industrial Accidents
April 11, 2019
The
case was heard by Administrative Judge Bergheimer.
Sean
C. Flaherty, Esq., for the employee
David
G. Shay, Esq., for the insurer
Calliotte, Koziol and Long, Judges
REVIEWING BOARD DECISION
CALLIOTTE, J.
The
insurer appeals from a decision finding the employee
partially incapacitated from August 25, 2015, until November
25, 2015, and permanently and totally incapacitated
thereafter. The insurer argues that the employee failed to
prove her condition worsened after the prior hearing decision
awarding her § 35 benefits, and that the administrative
judge factored unaccepted medical conditions into her
incapacity analysis. For the following reasons, we vacate the
decision insofar as it awards the employee § 34A
benefits beginning on November 25, 2015, and recommit the
case for further findings.
This is
the second hearing decision in this case.[1] In the first decision,
a different administrative judge found the employee, a nurse
for over forty years, who had an associate’s degree and
RN and LPN licenses, injured her left minor hand in a fall at
work on October 1, 2010. She returned to modified light duty
work from October 4, 2010, to March 3, 2011, when her
employment was terminated. (Dec. I, 6.) At the first hearing,
the insurer raised§ 1(7A) with respect to the
employee’s underlying degenerative arthritis of her
left hand. However, the judge found “no compelling
evidence” as to whetherthat pre-existing condition was
“noncompensable” within the meaning of §
1(7A).[2] (Dec. I, 12.) Nonetheless, assuming
it was noncompensable, the judge found it did combine with
her work injury; however, based on the opinion of her
treating physician, Dr. Hillel Skoff, the judge further found
the work injury was the predominant cause of her
metacarpophalangeal joint problem and a major cause of her
base of thumb issues. (Dec. I, 12-13.)
Because
the judge’s findings in the first decision regarding
the employee’s prior work experience are relevant to
the issues on appeal, we recount them in some detail. The
judge found that “following an injury to her rotator
cuff in 2004, the employee left her then-employer, St.
Luke’s Hospital,”but noted that the shoulder
injury “was not put through Workers’
Compensation.” (Dec. I, 4 and n.2.) Shemade no finding
that the shoulder injury arose out of and in the course of
her employment at St. Luke’s, nor could she properly
have done so where there was no claim before her for the
right shoulder injury. SeeKeslof v.
Anna Jacques Hospital, 24 Mass. Workers’ Comp.
Rep. 173, 174 (2010) (without a claim judge strays from
parameters of case and errs if she rules on an issue not in
dispute); see also Holden v. Town of
Wilmington, 25 Mass. Workers’ Comp. Rep. 165, 168
(2011)(where self-insurer was not present, adjudication of
claim against it violated self-insurer’s
“fundamental right to notice of the claim against it,
and the opportunity to prepare and defend on that claim . . .
”).The employee underwent two shoulder surgeries and
remained out of work from 2004 through 2007, when she began
work in a lighter duty position as a supervisor at New
Bedford Health Care. The judge found her responsibilities
there “included completing paperwork, finding
replacements for unavailable employees and passing out
medication. She was not able to push the medication cart due
to complaints with the shoulder, and other employees would
assist her with this. She left this position and began work
with the Oaks, or Life Care Center as it is known, the
Employer in this case.” (Dec. I, 4.) Regarding the
employee’s right shoulder, the judge found,
“[s]he was advised not to lift heavy patients after
this incident, but this shoulder did not reportedly cause any
permanent restrictions or interfere with her subsequent work
at Life Care Centers . . . .” (Dec. I, 7.)
We
observe that, other than noting the employee did not need to
lift patients, (Dec. 1, 7 n.6), the first judge made no
findings regarding the employee’s duties at Life Care
Centers, prior to her left hand injury. Following that
injury, the judge found the employee could not return to a
nursing position given her pain and physical limitations in
her left hand, (Dec. I, 15 n.18), and was only capable of
employment that did not require the use of that hand. (Dec.
I, 16.) However, finding the employee’s pain and
physical limitations were not as severe as the employee
alleged, (Dec. I, 7), the judge concluded that she could
perform full-time minimum wage work, such as a receptionist,
customer service person, or greeter. (Dec. 14-15.)
Accordingly, she ordered the insurer to pay the employee
§ 35 partial incapacity benefits of $457.70 per week,
from March 4, 2011, and continuing, based on her ability to
work 8 hours per day, five days per week, earning $8.00 per
hour, or $320.00 per week.[3] (Dec. I, 16-17.) The judge also
ordered the insurer to pay for surgery to the
employee’s left hand. Id. The insurer appealed
the decision, which was summarily affirmed by this Board.
Rizzo v. M.B.T.A., 16 Mass. Workers’ Comp.
Rep. 160, 161 n.3 (2012)(reviewing board may take judicial
notice of documents in Board file).
Subsequently,
the employee had multiple surgeries to her left thumb and
hand. Following the last surgery to remove hardware in June
2015, (Dec. II, 6; see Ex. 12, 11/25/15 report of Dr.
Whitelaw), the parties entered into a Form 113 agreement for
the insurer to pay the employee § 34 temporary total
incapacity benefits from June 29, 2015, to August 24, 2015,
and ongoing maximum § 35 partial incapacity benefits in
the amount of $487.28, from August 25, 2015, to date and
continuing. (See Dec. II, 2; Ex. 10.) Rizzo,
supra.
On
October 19, 2015, the employee filed the present claim
seeking § 34A permanent and total incapacity benefits
beginning on August 25, 2015. Following a § 10A
conference, the original administrative judge ordered the
insurer to pay § 34 benefits from the date of
conference, April 11, 2016, through exhaustion, and maximum
§ 35 benefits of $487.28 per week thereafter. Both
parties appealed. Prior to hearing, the insurer’s
complaint for modification or discontinuance, filed November
30, 2015, was joined to the employee’s § 34A
claim. (Dec. II, 4 and n.5.) Rizzo, supra.
At the
time of the second hearing on April 12, 2017,[4] the
employee was sixty-seven years old. (Dec. II, 3,5.) She had
not worked or sought employment since she was...
