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8 Mass. Workers' Comp. Rep. 382

Department of Industrial Accidents
Commonwealth of Massachusetts

 ALBERT MCCOMISKEY, EMPLOYEE
AT&T TECHNOLOGIES, EMPLOYER 
Board No. 084917-87
Field: December 13, 1994

Appearances

J. Channing Migner, Esq., for the employee
Norman P. Beane, Jr., Esq., for the self-insurer

REVIEWING BOARD DECISION

SMITH, J. In this case, we address whether injuries from a car accident occurring years after a work injury, allegedly caused by the use of narcotics prescribed to alleviate pain from the work injury, are compensable. The employee was receiving temporary total compensation at the time of the car accident. The administrative judge denied his claims for §34A permanent and total incapacity benefits and §34B cost of living adjustments, made no award of §35 partial incapacity benefits and ordered no reduction of his ongoing §34 temporary total compensation. The judge refused to order payment of medical expenses resulting from the car accident. She awarded §36 specific compensation benefits for extent of permanent impairment to the back which existed prior to the car accident.

We affirm the judge's decision to deny benefits necessitated by the car accident. Finding the decision on the nature and extent of incapacity inadequate for appellate review, we recommit the case for further findings on that issue.

The pertinent facts are as follows: Albert McComiskey is a 61-year old machine operator with a seventh-grade education. On December 3, 1987, he slipped and fell in the employer's cafeteria, sustaining injuries to his right elbow, right shoulder and back. The self-insurer accepted his claim and commenced payment of §34 temporary total incapacity benefits.

The work injury aggravated McComiskey's pre-existing back conditions of spondylolysis and spondylolisthesis. (Abrams dep. 10) After the injury, McComiskey developed chronic low back pain. He was unable to return to his pre- injury job. (Abrams dep. 12, 20) In the fall of 1988, McComiskey attempted a light duty job. He was unable to tolerate four hours of light work a day and he again went out of work. (Abrams dep. ex. 15, 18) Dr. Abrams, his treating physician, prescribed percoset for the pain.

As of March 10, 1989, Dr. Abrams ordered continuing physical therapy and permitted a return to work under the supervision of the plant physician "with restrictions of no bending, stooping, lifting and a specific sedentary activity with ability to move about to be tailored to his disability." (Swiggert dep. ex. 2; Abrams dep. 12, 24-25)

As of March 10, 1989, McComiskey plateaued. He had reached a medical end point and remained limited to light, sedentary activity. (Abrams dep. 25-27) Dr. Abrams continued prescribing percoset. On August 7, 1989, he prescribed percoset #20 x 0, "two weeks supply on vacation". (Swiggert dep. ex. 2) On or about July 18, 1989, McComiskey filed a claim for §34A benefits for permanent and total incapacity commencing June 9, 1989. Several weeks later, on August 9, 1989, before the case was conferenced, he suffered catastrophic injuries in an automobile accident en route to Florida on personal business.

*2 McComiskey claimed that his automobile injuries were compensable because his accident was caused by the effects of medication to treat the original industrial injury. (Employee's Hearing Brief, p. 1) The administrative judge rejected his argument on two grounds: 1. The judge was unpersuaded that the medication in fact caused the car accident. "The employee testified to taking percosets on the day of the accident, but claims not to recall the details of the accident. The Employee specifically did not testify that he fell asleep. Indeed the hospital records state he swerved to avoid a truck and went off the road and struck a tree." (Dec. 16) 2. The trip had no business purpose. "In August 1989 the Employee, for personal reasons, undertook to drive alone to Florida. This trip had nothing to do with the Employee's medical treatment. It was a personal trip for some family problems." (Dec. 16, 18) The judge denied the claim for medical treatment necessitated by, and incapacity arising out of, the car accident.

However, McComiskey claimed that he was permanently and totally incapacitated prior to the car accident. The judge's findings on McComiskey's pre-car accident condition are confusing and contradictory. She wrote: "Based on Doctor Abrams opinion which I adopt, the Employee was not permanently and totally disabled when he last examined him on March 10, 1989, and he was also capable of performing some light sedentary work. I find that the Employee had a small earning capacity at that time." (Dec. 17) However, in the next paragraph she wrote: "I find that the Employee's disability is such that it prevents him from performing remunerative work of a substantial but not merely trifling character. Therefore, decline to award him a partial earning capacity." (Dec. 18) She concluded: "The Employee has failed to prove by a preponderance of the evidence that he is permanently and totally disabled within the meaning of Section 34A of G.L. c.152 for the condition of his back prior to his motor vehicle accident." The judge therefore denied the §34A claim.

On appeal, the employee argues that the judge made three errors: 1. The judge should have found that percoset was responsible for causing the car accident. 2. Based on that factual finding, the judge should have concluded that his injuries were the result of his treatment and were therefore causally related to his work injury. 3. The judge should have found that the employee was totally and permanently incapacitated. We find no error in the first issue, which renders the second issue moot, and recommit the case for further findings on the third issue.

The judge was obviously unpersuaded that the accident was caused by the use of percoset. She details the reasons for being unpersuaded. The reasons are rational and supported by the record. As the factual conclusion of non- persuasion is not arbitrary or capricious, we must affirm it. G.L. c.152, §11C.

We need not address the issue of whether the judge erroneously ruled that the "street risks" provisions of G.L. c.152 §26 barred the employee's claim because the judge found as a fact that the premise of the employee's argument, i.e. that medication prescribed to treat the work injury caused the car accident, did not exist.

*3 Turning to the remaining issue, we conclude that the judge's factual findings on the extent of incapacity are confusing and may evidence legal error. We infer from the decision that she concluded that the employee remained temporarily totally incapacitated. However, she did not explain how she reached this apparent conclusion. If, prior to his car accident, the employee had permanent physical limitations that coupled with his limited vocational assets rendered him totally incapacitated, then as a matter of law he qualified for § 34A permanent and total incapacity benefits. The employee was not required to exhaust §34 benefits in order to qualify for §34A benefits (receipt of which would also entitle him to §34B supplemental cost of living adjustments). Lazarczyk's Case, 7 Mass. Workers' Comp. Rep. 170 (1993); Gebeyan's Case, 8 Mass. Workers' Comp. Rep. ___ (March 31, 1994). [FN1]

Once totally and permanently incapacitated, a subsequent injury does not divest an employee of benefits to which he is otherwise entitled. Unless the prior compensable incapacity ends, the "supervening of a noncompensable injury. . . does not excuse the insurer from paying the compensation which would otherwise be payable for a compensable injury." Roderick's Case, 342 Mass. 330, 334, 173 N.E. 2d 280, 282 (1961), quoting Whitehead's Case, 312 Mass. 611, 613, 45 N.E.2d 839, 840.

On recommittal, the judge shall render specific findings on the extent of the employee's incapacity from June 9, 1989 to the date of the car accident, and shall order the payment of §§34A and 34B benefits if the employee was then permanently and totally incapacitated. As the extent of incapacity is not a purely medical issue, the judge shall consider the employee's age, education, training, work experience and other capabilities in making that determination. Frennier's Case, 318 Mass. 635, 639 (1945). If the judge determines that the employee has not demonstrated total incapacity, it is within the judge's authority to assign an earning capacity in the exercise of his or her own judgment without direct testimony on the matter. Mulcahey's Case, 26 Mass. App. Ct. 1, 3 (1988).

In summary, we affirm that part of the administrative judge's decision disallowing compensation for the August 9, 1989 car accident and awarding §36 permanent impairment benefits for the December 3, 1987 industrial injury. We vacate and remand that portion of the decision denying §§34A and 34B compensation benefits. As the administrative judge who heard the case is no longer a member of the Department of Industrial Accidents, we forward this case to the senior judge for reassignment for hearing de novo consistent with this opinion.
So ordered.

Suzanne E. K. Smith
Administrative Law Judge

Edward P. Kirby
Administrative Law Judge

Susan Maze-Rothstein
Administrative Law Judge

FN1. Between the time of the employee's injury, the filing of this claim, and the close of the record in this proceeding, the 1985 version of §34A was in effect. It provided: "While the incapacity for work resulting from the injury is both permanent and total during each week of incapacity, the insurer shall pay the injured employee compensation equal to two-thirds of his average weekly wage before the injury, but not more than the maximum weekly compensation rate nor less than the minimum weekly compensation rate."

The Legislature amended §34A in 1991, and reinserted exhaustion language that had existed prior to the 1985 amendment, so that §34A now provides: "While the incapacity for work resulting from the injury is both permanent and total, the insurer shall pay to the injured employee, following payment of compensation provided in sections thirty-four and thirty-five, a weekly compensation equal to two-thirds of his average weekly wage before the injury, but not more than the maximum weekly compensation rate nor less than the minimum weekly compensation rate." (italics supplied) St. 1991 c. 398 §60.

The 1991 version of §34A is inapplicable to this case. The 1991 amendment, reinserting the exhaustion requirement that §34A benefits could be paid only " following payment of compensation provided in sections thirty-four and thirty-five", was specifically designated by the Legislature as substantive, St. 1991, c.398 §106, so that pursuant to M.G.L. c. 152 §2A, it only applies to injuries occurring after its effective date of December 23, 1991.

1994 WL 702363 (Mass.Dept.Ind.Acc.), 8 Mass. Workers' Comp. Rep. 382

END OF DOCUMENT


1994 WL 702363

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