No. 02610095 (1999). EMPLOYEE: Charles Siever.

Case DateFebruary 25, 1999
CourtMassachusetts
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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