Case of Scheffler

• Decision Date: 22 December 1994
• Citation: 643 N.E.2d 1023,419 Mass. 251
• Parties: Frank L. SCHEFFLER'S CASE.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 1023

643 N.E.2d 1023

419 Mass. 251

Frank L. SCHEFFLER'S CASE.

Supreme Judicial Court of Massachusetts,

Suffolk.

Argued Oct. 5, 1994.

Decided Dec. 22, 1994.

Amy Scarborough, Burlington, for insurer.

Robert M. Schwartz, Boston, for employee.

Before LIACOS, C.J., and WILKINS, LYNCH, O'CONNOR and GREANEY, JJ.

GREANEY, Justice.

In this case we are called on to interpret G.L. c. 152, § 11A, as appearing in St.1991, c. 398, § 30, which, in a workers' compensation case "involving a dispute over medical issues," requires examination of the employee by an "impartial medical examiner," who is to report on specified issues, and whose report is to "constitute prima facie evidence of the matters contained therein." The reviewing board (board) upheld the decision of an administrative judge of the Department of Industrial Accidents who concluded that the independent medical examiner's report had prima facie effect only as to medical issues and did not have such effect on the issue of the employee's earning capacity. Wausau Insurance Company (insurer) appealed to a single justice of the Appeals Court pursuant to G.L. c. 152, § 12 (1992 ed.), who reported the case to a panel of that court. We transferred the case to this court on our own motion. We agree with the decision of the board and, consequently, we affirm its decision.

We summarize the facts found by the administrative judge and adopted by the board. Frank L. Scheffler (employee) was employed by Sentry Insurance Company (employer) from 1962 as a sales representative selling all lines of insurance and servicing both family and commercial accounts. His job required him to spend as much time on the road as he did in the office. His income was based solely on a percentage of the insurance that he sold and depended on individual initiative, motivation, and aggressiveness. In order to gain an advantage over his competition, the employee devoted much of his time to soliciting new business. This required the employee to send out letters to prospective customers throughout his sales territory, which included Suffolk, Essex, and Middlesex Counties in Massachusetts, as well as eastern New Hampshire, and to canvas these areas in his automobile. The maximum time he spent traveling was thirty to thirty-five hours each week. During the course of a typical day, the employee, after traveling, would return to the office and make between six to eighteen telephone calls and dictate or transcribe his work notes. He would then make at least two home visits with clients each night. The employee had spent twenty-eight years building up his client list, and he had no significant experience in any other job field.

On November 28, 1990, the employee fell in the employer's parking lot, injuring his lower back. He continued to work until January 3, 1991, and has not worked since that date. He took medication two to three times a day, wore a lumbar support, and exercised at home daily in order to relieve his back pain which, by April, 1991, had become chronic in nature. The insurer initially accepted liability and commenced paying weekly benefits. The insurer, however, subsequently filed a complaint to modify or discontinue benefits. Following a conference before the administrative judge, the employee was awarded partial incapacity benefits under G.L. c. 152, § 35 (1992 ed.). The insurer appealed, and a de novo hearing was scheduled before the administrative judge.

Pursuant to the provisions of § 11A, the employee was examined by an impartial physician, Dr. Albert F. Little, an orthopedic surgeon. According to the doctor's report, the employee suffered from a degenerative condition of the lower back which had been aggravated by the fall. The report also stated that the employee was not "totally and permanently impaired," and that he could, with some adjustments be "gainfully employed" as an insurance salesman. ¹ Neither party exercised the right given by § 11A to depose the doctor, challenged admission of his report, or sought to submit additional medical data. The only other evidence before the administrative judge was the employee's testimony.

Finding that the employee was incapable of returning to his previous position without some limitation, the administrative judge again concluded that the employee was entitled to partial incapacity benefits under § 35. The insurer appealed from the judge's decision to the board, arguing that, under § 11A(2), the administrative judge was required to treat the impartial physician's opinion that the employee could return to his regular job on a full-time basis as prima facie evidence. The board upheld the decision of the administrative judge, concluding that, under § 11A(2), "an impartial physician's report constitutes prima facie evidence only as to issues of medical disability and related medical matters." A physician's opinion of an employee's vocational status or ability to perform a specific job, the board continued, is not entitled to any special deference.

1. We first consider the proper meaning of § 11A, which provides for the appointment of an independent medical examiner who is to submit a report on specified issues. ² The insurer contends that the last sentence of the second paragraph of § 11A(2) rendered every statement made in the impartial medical examiner's report in this case prima facie evidence. We disagree.

"[A] statute must be interpreted according to the intent of the Legislature ascertained from all its words construed by the ordinary and approved usage of the language, considered in connection with the cause of its enactment, the mischief or imperfection to be remedied and the main object to be accomplished, to the end that the purpose of its framers may be effectuated." Board of Educ. v. Assessor of Worcester, 368 Mass. 511, 513, 333 N.E.2d 450 (1975), quoting Industrial Fin. Corp. v. State Tax Comm'n, 367 Mass. 360, 364, 326 N.E.2d 1 (1975). "[T]he statutory language itself is the principal source of insight into the legislative purpose." Hoffman v. Howmedica, Inc., 373 Mass. 32, 37, 364 N.E.2d 1215 (1977).

Section 11A(2) is one component of a larger adjudicative system in which administrative judges (and appellate courts, when called on) decide whether compensation is due an employee for an injury claimed to have been sustained at work. The nature of adjudication under the system has been described as follows: "Compensation is not awarded for personal injury as such but for 'incapacity for work.' This concept combines two elements: physical injury or harm to the body, a medical element, and loss of earning capacity traceable to the physical injury, an economic element. Some benefits may be due for a physical injury which does not interfere with the employee's ability to earn his full wages. He would be entitled to medical and hospital care and, if left with a permanent physical handicap, to specific compensation under [G.L. c. 152, § ] 36. But apart from such cases, an injury is not compensable unless the physical injury causes an impairment of earning capacity.

"Incapacity for work is the common statutory basis of benefits for total, permanent and total, and partial disability. The degree of incapacity determines whether the disability is total or partial. The determination of loss of earning capacity involves more than a medical evaluation of the employee's physical impairment. Physical handicaps have a different impact on earning capacity in different individuals. Education, training, age, and experience affect the ability to cope with the physical effect of injury. The nature of the job, seniority status, the attitudes of personnel managers and insurance companies, the business prospects of the employer, and the strength or weakness of the economy also influence an injured employee's ability to hold a job or obtain a new position. The goal of disability adjudication is to make a realistic appraisal of the medical effect of a physical injury on the individual claimant and award compensation for the resulting impairment of earning capacity, discounting the effect of all other factors ..." (footnotes omitted). L. Locke, Workmen's Compensation § 321, at 375-376 (2d ed. 1981). See also 1C A. Larson, Workmen's Compensation § 57-11, at 10-16 (1994 & Supp.1994) (discussing disability adjudication in similar manner).

Section 11A(2) expressly states that an impartial medical examiner is to be appointed only when a dispute arises "over medical issues." Section 11A(2) seeks, by means of an impartial physician's report, to avoid or minimize situations where "dueling doctors" present conflicting medical evidence concerning the nature and cause of the employee's injury and the degree of disability. Considering this point as the primary imperfection that the Legislature intended to correct in § 11A(2), together with the precise reference in § 11A(1), restricting the need for an impartial physician to disputes over "medical issues," and the nature of disability adjudication which involves decision of issues of both fact and law, we think the matters the impartial medical examiner is directed by § 11A(2) to report on primarily concern medical facts and related opinions concerning the nature of the employee's injury and its causation, the extent of disability, and whether any permanent impairment or losses of function exist.

With specific reference to the degree of disability, which is the issue in this case, the impartial medical examiner ordinarily would be expected to describe the employee's ability to perform certain tasks and to state restrictions on his ability to work. ³ The impartial medical examiner might also relate the medical findings to the requirements of the employee's job and express an opinion that, based on the medical findings, the employee can return to work in some capacity. If that opinion is based on facts which the administrative judge (and ultimately the board) finds are complete and...