No. 02610095 (1999). EMPLOYEE: Charles Siever.
Case Date | February 25, 1999 |
Court | Massachusetts |
Massachusetts Workers Compensation
1999.
No. 02610095 (1999).
EMPLOYEE: Charles Siever
COMMONWEALTH OF MASSACHUSETTS
DEPARTMENT OF INDUSTRIAL ACCIDENTS EMPLOYEE: Charles Siever EMPLOYER: Commonwealth
Electric Company INSURER: Commonwealth Energy SystemsBOARD NO. 02610095REVIEWING BOARD DECISION (Judges McCarthy, Wilson and Smith)APPEARANCES
John T. Foynes, Esq., for the employee
Michael A. Fager, Esq., for the self-insurer
MCCARTHY, J. Charles Siever, a high
school graduate with one year of college, worked as a lineman for Commonwealth
Electric Company (Commonwealth). He had previously worked as a truck driver and
laborer, and as a grounds keeper at a country club. Over the course of fourteen
years, Siever worked his way up to a first class lineman's position after first
being hired by Commonwealth as a janitor. On July 10, 1995, while pulling wire
from a reel, he felt a snap in his back with pain radiating down his left leg.
He was seen at the emergency room, and remained out of work for approximately
one week. On July 18, 1995, he returned to light duty inspecting poles for
illegal telephone hook-ups. (Dec. 3.) This job required Siever to drive a truck
through often rough, wooded territory, which caused his back to become
uncomfortable. (Dec. 4.) At some point Commonwealth became suspicious of the
employee and hired a private detective agency to investigate his working hours
activities. Id. On October 5, 1995, he was suspended from his light duty
position for alleged dereliction of duty and misappropriation of company
property. (Dec. 3, 7.) Following a hearing, the employer terminated his
employment. (Dec. 5.)
From July 18, 1995 until April 5, 1996, the self-insurer paid Mr.
Siever weekly § 35 partial incapacity benefits. Before the self-insurer
unilaterally stopped paying weekly benefits, the employee filed a claim for
payment of medical expenses. Following a conference on March 12, 1996, the
judge ordered the self-insurer to pay for various diagnostic studies. The
conference order did not include an increase in the weekly benefits; the
employee appealed and the case came back to the administrative judge for a full
evidentiary hearing on December 30, 1996.
Mr. Siever was examined by a § 11A impartial physician who
concluded that he was suffering from "chronic low back pain and left leg pain
with radicular features in spite of minimal radiographic and physical
findings." The impartial doctor causally related these symptoms to the
industrial injury. (Dec. 8.) He further opined that the employee had reached a
medical end result and had a partial medical disability, which precluded him
from returning to work as a lineman. The impartial examiner recommended that
Mr. Siever avoid performing work which required bending, twisting, heavy
lifting or prolonged sitting. (Dec. 9.)
In his hearing decision the judge found that the employee's light
duty job inspecting poles was a "make work position" within the employee's
physical capacity to perform. The judge further found that the circumstances
surrounding the employee's termination had ". . . no bearing on the employee's
current disability." (Dec. 7.) Finding the impartial report adequate (there was
no deposition of the impartial physician), the judge concluded that the
employee had been totally incapacitated for eight days beginning July 10, 1995,
and partially incapacitated from July 18, 1995 and continuing. He determined
that, beginning on October 6, 1995, the employee could work in a supervisory or
sedentary capacity earning $400.00 per week based on a forty-hour week at
$10.00 per hour. (Dec. 11.)
The self-insurer appeals, making three overlapping arguments: 1)
the administrative judge failed to perform an appropriate § 35D analysis
or explain why § 35D(3) was inapplicable; 2) the administrative judge's
failure to...
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