JOSEPH W. SORCAN, Employee, by MARJORIE SORCAN, Petitioner/Appellant, v. USX CORP. f/k/a U.S. STEEL CORP., SELF-INSURED, Employer.

 

WORKERS= COMPENSATION COURT OF APPEALS

DECEMBER 22, 2003

 

HEADNOTES

 

PRACTICE & PROCEDURE - PROPOSED FINDINGS & ORDER.  Under the circumstances of this case, the compensation judge committed reversible error by adopting the employer and insurer=s proposed findings and order verbatim, without any explanatory memorandum.

 

Vacated and remanded.

 

Determined by Johnson, C.J., Pederson, J. and Rykken, J.

Compensation Judge:  Donald C. Erickson

 

Attorneys:  Robert C. Falsani and Bill L. Thompson, Falsani, Balmer, Peterson & Quinn, Duluth, MN, appeared for Appellant.  James P. Paciotti, Law Offices of James P. Paciotti, Duluth, MN, appeared for Respondent.

 

OPINION

 

THOMAS L. JOHNSON, Judge

 

The employee appeals from the compensation judge=s findings and order, contending, among other things, that the judge=s verbatim adoption of the self-insured employer=s proposed findings and order constitutes reversible error.  We vacate the Findings and Order and refer the case to the Office of Administrative Hearings for further proceedings.

 

BACKGROUND

 

This case has a lengthy and litigious history.^[1]  Briefly, the employee, Joseph W. Sorcan, was born in 1921.  He was employed by the self-insured employer, USX Corporation (f/k/a U.S. Steel Corpor­ation), from 1947 through 1975.  The employee was diagnosed with silicosis in 1974-75 as a result of inhalation of silica dust in the course of his work for the employer.  Around the same time, the employee was also diagnosed with rheumatoid arthritis.^[2]  As a result of these conditions, the employee left his employment with USX on October 8, 1975, and never worked again.  In October 1976, this court found, in an unappealed decision, that the employee=s disabling rheumatoid arthritis was causally related to his work-related silicosis.  Sorcan v. U.S. Steel Corp., 29 W.C.D. 162 (W.C.C.A. 1976).  In 1987, Compensation Judge Gregory Bonovetz determined the employee had been permanent and totally disabled since April 14, 1976.  Over the years, the employee became increasingly disabled by his rheumatoid arthritis, and was eventually confined to a wheelchair.

 

On June 22, 2000, the employee was admitted to St. Mary=s Medical Center with com­plaints of increased weakness, nausea, vomiting and epigastric pain over the previous month.   He was released to the Virginia Regional Medical Center (VRMC) on June 29, 2000, with a princi­pal diagnosis of abdominal pain with partial small bowel obstruction.  At the VRMC, the employee was treated for dehydration, failure to thrive and weakness.  He improved, and was discharged home on July 21, 2000.  Five days later, the employee was again admitted to St. Mary=s Medical Center.  An exploratory laparotomy, performed by Dr. Thomas Wiig on July 29, 2000, resulted in a post-operative diagnosis of generalized intestinal paralytic ileus with an intestinal adhesion and nodular liver disease.  The employee failed to improve and was placed in hospice where he died on August 4, 2000. 

 

The employee=s widow, Marjorie Sorcan, filed a claim for dependency benefits on October 16, 2000, alleging the employee=s rheumatoid arthritis was a contributing cause of his death.  The case was heard by Compensation Judge Donald Erickson on August 13, 2002.  At the conclusion of the hearing, the judge stated the record would remain open to allow the employer=s counsel to obtain a deposition or additional report from its medical expert.  The judge then requested a proposed findings and order from each party in lieu of final argument, although, given the complexity of the case, he allowed both, due 30 days after receipt of the additional exhibits.

 

The employee=s and the employer=s proposed findings and order were received on December 16 and December 17, 2002, respectively.  The compensation judge filed a Findings and Order on February 13, 2003, which was identical, in all respects, to the employer=s proposed findings and order.  The employee appeals.

 

DECISION

 

The employee argues the compensation judge committed reversible error in adopting the employer=s proposed findings and order verbatim.  We agree.

 

In Anderson v. The Salvation Army, slip op. (W.C.C.A. June 27, 2003), this court held the submission of proposed findings does not change the compensation judge=s obligation to review and evaluate the evidence.  As a general rule, this court has affirmed a compensation judge=s deci­sion even when the judge has adopted a proposed findings and order as his own.  In virtually every instance, however, some modifications were made to the proposed findings and order before the judge signed them and the findings and order included a memorandum explaining the judge=s decision.  See Roth v. USX Corp., slip op. (W.C.C.A. Oct. 21, 2003)(and cases cited therein).

 

In the instant case, each of the parties submitted lengthy (20 page) proposed Afindings,@ more akin to a final argument than findings of fact. As in Roth, the compensation judge simply signed the employer=s proposed findings and order verbatim.  No changes were made.  There was no memorandum to explain the judge=s rationale for his decision.  AThe judge=s verbatim adoption of a proposed findings and order here, without any memor­andum, makes it impossible for this court to determine whether the judge independently determined all of the contested issues of fact and law submitted to him.@  Roth at 4-5.

 

We, therefore, conclude, under the circumstances of this case, the compensation judge committed reversible error by adopting the employer=s proposed findings and order.  As the com­pensation judge is no longer with the Office of Administrative Hearings, we refer the case back to the Office of Administrative Hearings for assignment to a new judge for hearing.