Robert F. Griffin Employee,
M.B.T.A. Employer
M.B.T.A. Self-Insurer
No. 037920-13
Massachusetts Workers Compensation Decisions
Commonwealth of Massachusetts Department of Industrial Accidents
May 5, 2020
This
case was heard by Administrative Judge Braithwaite.
Brian
C. Cloherty, Esq., for the employee
Thomas
A. Richard, Esq., for the self-insurer
Koziol, Fabricant and Calliotte, Judges.
CORRECTED
REVIEWING BOARD DECISION
KOZIOL, J.
This is
the second time this case has been before the reviewing
board. In 2017, we reviewed, on cross-appeals, a different
judge’s November 4, 2016, hearing decision finding the
employee sustained a work-related hearing loss on November
30, 2012.
1 At that time, we affirmed the
judge’s order of payment of § 36 loss of function
benefits in the amount of $26,343.73, and §§ 13 and
30 medical benefits for hearing aids and medical treatment
for hearing loss in both ears. However, we vacated the
judge’s denial and dismissal of the employee’s
§§ 34 and 35 claims and referred the matter to the
senior judge for re-assignment to a different
judge
2 with instructions to conduct “a
proper analysis of the debilitating effects of [the
employee’s] injury and further findings of fact
regarding his earning capacity.” Griffin
v. M.B.T.A., 31 Mass. Workers’ Comp.
Rep. 215, 215-216 (2017). We summarily affirmed the decision
in all other respects. Id. at 219.
From
the first decision, the following facts were established. The
employee worked for at least 20 years inside subway tunnels
where, “despite the high level of noise, workers were
not permitted to wear ear protection on the job for safety
reasons.” Id. at 216. The employee’s
hearing damage “ ‘began in about 2004 and
continued over 12 years until his last day of work.’
” Id. at 216, quoting from (Dec. I, 7). The
employee’s last day of noise exposure was November 30,
2012, and he retired from the MBTA on December 1, 2012.
Id. The first “judge also adopted the
employee’s testimony that, for safety reasons, he was
precluded from using ear protection on the job at the MBTA,
and now ‘his hearing ability is insufficient for him to
perform his work [there].’ ” Id. at 217.
In our
prior decision, we observed that, “despite finding that
the employee cannot return to his previous employment, the
judge noted that the employee has demonstrated the ability to
work unrestricted ‘in a full-time, full-duty capacity
in any job where he will not be exposed to unprotected loud
noise.’ ” Id. 217. Moreover,
“regardless of any deficit correction afforded by the
employee’s use of hearing aids, the judge found he
remains medically unable to ever return to his prior
employment with the MBTA.” Id. at 217. In
discussing the tension between these findings and the
judge’s subsequent denial and dismissal of the
employee’s claim for incapacity benefits, we stated:
The judge has essentially determined that the employee, who
is disabled from returning to his job at the MBTA, can earn
his pre-injury average weekly wage of $1,236.80 (Dec. 7). She
also found that, due to the extent of his hearing loss, he
has been unable to obtain gainful employment after retiring
from the MBTA, except for a temporary assignment as a
custodian for the USPS. (Dec. 6, 7.) However, she ‘made
no findings identifying the factual source supporting [her]
conclusion that despite [his] restriction, the employee was
able to perform work in the open labor market earning his
pre-injury wage.’ Anitus v.
Naratone Security Corp., 24 Mass. Workers’
Comp. Rep. 221, 223 (2010). Because the employee cannot
return to the same type of work he has done for 20 years, and
it is unclear what he is capable of earning in other types of
jobs, we agree that the judge failed to perform the
foundational analysis required to determine his earning
capacity, if any, under these circumstances.
Id. at 218. We concluded, the lack of
“adequate findings of fact led to the judge’s
failure to analyze adequately, the requisite factors assessed
in determining incapacity and the extent thereof.”
Id. 219. Our recommittal “for further findings
consistent with this opinion,” id., was on
this limited issue.
The
matter was reassigned to the present judge for determination
of the employee’s claim for weekly incapacity benefits.
At a status conference in January of 2018, “it was
determined that [the judge] would review the hearing
transcript of May 12, 2016, and that the Employee will
testify as to the ‘debilitating effects of his injury
and further finding of fact regarding his earning capacity
[sic]’ from May 13, 2016 to today’s date. The
parties agreed they will not call any other witnesses in this
case.” (Dec. II, 3; Tr. II, 5.)
At the
hearing on July 24, 2018, the judge stated, without
objection, that the employee’s claim was for § 34
temporary total incapacity benefits from December 1, 2012, to
date and continuing, as well as § 35 benefits from April
30, 2013, to date and continuing, and that the self-insurer
“denies disability and extent thereof” and raises
G. L. c. 152, § 35D and “Chinetti’s
Case.” (Tr. II, 5-6.) The judge noted that the
prior judge found the reports of the § 11A examiner, Dr.
William E. O’Connor,
3 adequate, but allowed the self-insurer
to submit an IME regarding the issue of hearing loss, which
the self-insurer acknowledged was for the purpose of
addressing the employee’s § 36 claim for loss of
function. The judge then ruled, “given that [Dr.
O’Connor’s] reports are more than two years old I
have allowed the parties to provide any recent medical
evidence in this particular case.” (Tr. II, 7.) The
self-insurer objected to this ruling. (Tr. II, 8.) The judge
also allowed the employee’s oral motion to join the
issue of tinnitus to the case, (Tr. II 7-8), which the
self-insurer also objected to, stating:
[W]ith respect to the tinnitus that is a new claim being
addressed for the first time. So I would also object to any
new claim for that or any medical evidence being submitted
for the tinnitus claim. And the tinnitus claim should not be
taken into consideration when determining disability and the
extent thereof for today’s proceeding.
(Tr. II, 9.) The judge denied the self-insurer’s motion
to submit a hearing transcript from a different
employee’s case, tried before a different judge, which
allegedly contained the testimony of Mr. Ronald Nichols, the
employer’s chief safety officer, and testimony of the
employee, Mr. Griffin. (Tr. II, 13-15.)
The
parties now cross-appeal from the judge’s hearing
decision ordering the self-insurer to pay the employee §
35 benefits from March 28, 2016, to date and continuing at a
rate of $502.08 per week, based on an average weekly wage of
$1,236.80 per week and an earning capacity of $400.00 per
week. (Dec. II, 15-16.) The judge also ordered the insurer to
“pay medical treatment pursuant to § 30 for
hearing loss and tinnitus.” (Dec. II, 16.) Out of the
many issues raised on appeal,
4 the only one requiring a reversal
of a portion of the decision is the employee’s claim
that the judge erred by failing to address the
employee’s disability and extent of incapacity from
December 1, 2012, through March 27, 2016. Otherwise, for the
reasons set forth below, we affirm the remainder of the
judge’s decision. Insurer Appeal
We
begin by addressing five of the six issues raised by the
self-insurer, summarily affirming on the remaining issue.
Specifically, the self-insurer asserts the judge erred by: 1)
opening the medical evidence without making a finding that
Dr. O’Connor’s reports were inadequate or the
medical issues complex; 2) allowing the employee’s
claim for tinnitus; 3) refusing to allow the admission of
testimony from the employer’s chief safety officer,
Ronald Nichols, and the employee, from a different case tried
before a different judge regarding a different
employee’s workers’ compensation claim; 4)
refusing to allow the self-insurer to question the employee
about the circumstances surrounding his retirement; and, 5)
failing to address all of the issues in controversy, in
violation of G.L. c. 152, § 11B.
5
1.
Failure to make findings of inadequacy or complexity
regarding § 11A report.
We
agree it would have been preferable for the judge to
expressly find the § 11A reports inadequate. However,
the record unmistakably shows that inadequacy was the reason
the judge made this ruling. The judge stated, “given
the reports are more than two years old,” he was
opening the record for “the parties to provide any
recent medical evidence in this particular case.” (Tr.
II, 7; Dec. II, 5.) Under the circumstances presented here,
where the...
