Opinion
BOARD No. 032701-93
Filed: December 22, 1997
REVIEWING BOARD DECISION
(Judges Levine, Wilson and Fischel)
APPEARANCES
Sonia Marie Bellanton, pro se.
Joanne T. Marchi, Esq., for the self-insurer.
The employee and self-insurer both appeal from a decision in which an administrative judge awarded the employee a closed period of § 34 temporary total incapacity benefits in an original liability claim. We summarily affirm the decision as to the employee's appeal. The self-insurer's argument on appeal — that the decision is contrary to law because the award of benefits was not grounded in the medical evidence adduced at hearing — has merit. However, rather than reverse the decision as requested by the self-insurer, we recommit the case for introduction of additional medical evidence.
The employee injured her back and shoulder while working as a housekeeper on September 2, 1993. She continued working until September 13, 1993, whereupon she sought medical treatment. (Dec. 3-4.) The employee thereafter made a claim for workers' compensation benefits, which the self-insurer opposed. (Dec. 1.) The claim was denied following the § 10A conference; the employee then appealed to a full evidentiary hearing. (Dec. 1-2.)
On September 13, 1994 an impartial physician examined the employee and rendered a report pursuant to G.L.c. 152, § 11A(2). Neither party sought to introduce additional medical evidence by way of a motion for a finding of inadequacy or complexity. Nor did either depose the doctor. The judge adopted the opinions of the impartial physician, to wit, that the employee suffered back and shoulder sprains due to her September 2, 1993 accident at work, which sprains had resolved by the time of the examination on September 13, 1994. (Dec. 4.) The judge adopted the doctor's opinion that, as of that time, the employee was capable of returning to her full duties. (Dec. 4-5.)
Nevertheless, the judge specifically credited the employee's account of her work accident, and found that the industrial accident caused the employee to be totally incapacitated from her last day of work, September 13, 1993, until September 13, 1994, the date of the § 11A examination; the judge awarded benefits accordingly. (Dec. 3-4, 7-8.)
The self-insurer contends that the judge erred in awarding benefits because the impartial report did not comment on the employee's disability status at any time prior to the examination date. The self-insurer's contention is correct to a point. Certainly, the judge needed expert medical testimony to establish the nature and extent of medical impairment and the causal connection between that impairment and the industrial accident. See Josi's Case, 324 Mass. 415, 418 (1949). We agree with the self-insurer that there is no explicit assessment by the impartial physician of the employee's medical condition for the year between the industrial accident and the § 11A examination. The doctor simply evaluated the employee as she presented on September 13, 1994, by which time her sprains had resolved and were no longer disabling. These facts set out a classic example of the § 11A "gap" problem first addressed in George v. Chelsea Housing Authy., 10 Mass. Workers' Comp. Rep. 22 (1996).
On the other hand, the doctor acknowledged that there had been sprains, and that they were consistent with the employee's history of the industrial accident. The judge then put this opinion together with the credited testimony of the employee's symptomatology, (Dec. 6), and other factors to award benefits for the entire year prior to the § 11A examination.
The judge also referred to the employee's treatment, diagnosis, education and experience. (Dec. 7.)
This, however, was error. Although the exclusive medical evidence inferentially indicated some period of medical impairment stemming from the industrial accident, that medical evidence could not specifically establish or warrant an inference as to the length of the period or the extent of medical impairment. The impartial physician did not examine the employee during that one year period nor was he asked for his opinion based, for example, on medical records generated during that period. The § 11A report, in cases such as this, simply does not supply the judge enough medical evidence on which to ground an appropriate incapacity analysis. And a judge was not competent to fill the medical evidentiary gap on her own based only on non-medical evidence. But cf. Bedugnis v. Paul McGuire Chevrolet, 9 Mass. Workers' Comp. Rep. 801, 803 (1995) (medical opinion of "quite possible" causal relationship can be sufficient when combined with lay testimony).
We do not reach whether the judge could have properly denied benefits for the subject one year period.
By ordering § 34 benefits for the entire one year period, the judge obviously felt that the employee was entitled to benefits. Taking that view, the judge should have exercised her authoritysua sponte to require additional medical evidence. See G.L.c. 152, § 11A(2). We have stated as much in Wilkinson v. City of Peabody, 11 Mass. Workers' Comp. Rep. 263, 264-265 (1997), andMiller v. MDC, 11 Mass. Workers' Comp. Rep. ___, ___ n. 5 (July 9, 1997). In so concluding, we follow the guidance of O'Brien's Case, 424 Mass. 16, 22 (1996) (additional medical testimony may be necessary to provide each party a fair opportunity "to make out [its] position on the disputed issue").
Accordingly, we recommit the case for the parties to introduce additional medical evidence and for the judge to reassess her incapacity analysis in light of that evidence.
So ordered.
____________________________ Frederick E. Levine Administrative Law Judge
____________________________ Sara Holmes Wilson Administrative Law Judge
____________________________ Carolynn N. Fischel Administrative Law Judge
Filed: December 22, 1997