## Facts

- Matthew Ormonde worked for Choice One Communications installing heavy telephone equipment.
- In September 2002, Ormonde injured his low back at work while trying to lift equipment onto a truck.
- The insurer, Federal Insurance Company, accepted the claim and began paying total incapacity benefits under G. L. c. 152, § 34.
- In early 2004, the insurer filed a complaint to discontinue or modify benefits and also alleged fraud, asserting Ormonde had been working for other companies while collecting total incapacity.
- After a § 10A conference, an administrative judge assigned a $600 weekly earning capacity and ordered partial incapacity benefits under § 35 effective July 1, 2004.
- Both parties appealed for a de novo hearing; among other things, Ormonde sought § 34 benefits from June 30, 2004 through September 10, 2005, and § 35 benefits thereafter.
- Pursuant to § 11A, Ormonde underwent an impartial medical examination by Dr. Richard Warnock on August 9, 2004.
- Dr. Warnock diagnosed degenerative lumbar conditions with chronic low back pain and opined the work injury was a causal factor; he stated Ormonde was permanently partially disabled as of the exam date, but the report did not clearly address the extent of incapacity before that date.
- At the January 13, 2006 hearing, the judge admitted the § 11A report and additional medical reports offered by both sides on diagnosis, causal relationship, and extent of disability.
- Ormonde did not provide testimony describing pain or functional limits during the period between early 2004 and the § 11A examination.
- The judge also heard testimony and other evidence about whether Ormonde had been working while receiving § 34 benefits; Ormonde and other witnesses denied he worked during that period.
- The judge adopted Dr. Warnock’s opinions on diagnosis, causal relationship, and partial disability; did not adopt the other medical opinions; and credited the testimony that Ormonde had not worked while receiving total incapacity benefits.
- The judge awarded § 34 total incapacity benefits from the injury through the date of the § 11A exam, and § 35 partial incapacity benefits thereafter, using a $600 earning capacity for a period after the exam and then using actual wages beginning October 10, 2006.
- The insurer appealed to the Reviewing Board, challenging the adequacy of the findings and the medical support for the § 34 and § 35 awards, and challenging the denial of its § 14 fraud complaint.

## Issues

1. Whether the judge’s subsidiary findings on incapacity and earning capacity were sufficient to permit appellate review.
2. Whether the award of § 34 total incapacity benefits was supported by the medical evidence where the § 11A report described partial disability as of the exam date and did not address earlier periods.
3. Whether the award of ongoing § 35 partial incapacity benefits (including different earning-capacity determinations over time) was supported by the evidence where the judge relied on the same medical opinion.
4. Whether the judge’s denial of the insurer’s § 14 fraud complaint was supported by adequate findings and credibility determinations.

## Decision

- The Reviewing Board affirmed the denial of the insurer’s § 14 fraud complaint.
- The Reviewing Board vacated the incapacity and earning-capacity awards in part and recommitted the case for further findings.
- The Board held the judge erred by finding total incapacity based solely on the § 11A impartial report when that report did not supply an opinion of total incapacity and did not address the pre-exam period.
- The Board held the judge erred by adopting the same expert medical opinion while assigning different earning capacities at different times without explaining the evidentiary basis for the changes.
- The Board directed the judge, on recommittal, to reconsider the medical and other evidence and to issue additional subsidiary findings that explain the periods and degree of incapacity and the earning-capacity determinations.

## Legal Principles

- Subsidiary findings must be detailed enough to allow the Reviewing Board to determine with reasonable certainty whether the correct rules of law were applied to facts that could properly be found.
- A § 11A impartial report stating partial disability as of the exam date, without addressing earlier periods, cannot by itself support a finding of total incapacity for a period before the examination.
- Earning capacity findings must be tied to record evidence and explained; materially different earning-capacity assignments over time require an articulated medical and/or vocational basis.
- A judge may deny a § 14 fraud claim where credited testimony and subsidiary findings support the conclusion the employee was not working while receiving benefits; the Board generally defers to the judge’s credibility determinations when supported by the findings.

## Conclusion

The Reviewing Board left intact the judge’s rejection of the insurer’s § 14 fraud allegation, but it returned the case for further work on the disability awards because the findings did not adequately explain how the evidence supported total incapacity before the § 11A exam or differing earning-capacity determinations after the exam.


Matthew Ormonde, Employee, Choice One Communications, Employer, Federal Insurance Co., Insurer, 24 Mass. Workers’ Comp. Rep. 149, 2010 WL 2342975 (2010)