Opinion
BOARD NO. 05578692
Filed: June 25, 1996
REVIEWING BOARD DECISION
(Judges Maze-Rothstein, Kirby and Smith)
APPEARANCES
Frank E. Antonucci Esq., for the employee
Karen Catuogno Esq., for the employer
We have the insurer's appeal from a decision that awarded the employee G.L.c. 152, § 34 and 30 temporary total incapacity and medical benefits. The insurer argues prejudice due to the timing of the lay hearing, which preceded receipt of the § 11A medical report contrary to the statutory sequence.Id. Because of the potential prejudice alleged, we recommit the case to allow the insurer an opportunity to cross examine the employee regarding the basis of the medical examiner's opinion.
General Laws c. 152, § 11A(2) reads in pertinent part: "No hearing shall be commenced sooner than one week after such report has been received by the parties." G.L.c. 152, § 11A(2) as amended by St. 1991, c. 398, § 30.
The employee, age forty-three, worked for restaurants in food service. On November 28, 1992, she waitressed at Michael's restaurant where she had worked intermittently for eleven years. On that day, she slipped and fell while performing her duties. She landed on her tail bone and struck her head immobilizing her entirely for the next 45 minutes. Not long after the incident, she attempted a light duty return to work. But four or five weeks later, she left due to worsening back pain. She then treated conservatively for several months. Her back pain and secondary psychological injury are not at issue here. Remaining in contention is the employee's alleged neck injury resulting from the industrial accident. (Dec. 2-3.)
Just after the injury, the employee's primary focus was relief of her back pain and regaining sensation in her legs. However, she also claimed that when she hit her head in the accident, it left her with neck stiffness and occasional muscle spasms. Approximately seven months after the industrial accident and with no particular incident in June of 1993, the employee's neck suddenly became symptomatic. (Dec. 3-4.) Then in October of 1993, a herniated disc in her neck had to be surgically removed. (Dec. 3.) She thereafter, filed a claim for benefits.
The decision reads: "It was not until June of 1993, while carefully picking some beans in her garden, that the neck suddenly became symptomatic. . . ." (Dec. 4.) The language chosen by the judge bespeaks normal, non-negligently performed activity. See Gulzynski v. Granada Hosp. Groups, 7 Mass. Workers' Comp. Rep. 151, 153 (1993) (a non-work activity causing a recurrence or aggravation of a work injury is compensable if the activity was normal and reasonable and not negligently performed).
At a § 10A conference the employee sought § 34 temporary total incapacity and § 30 medical benefits for her low back injury, the herniated cervical disk and for psychiatric treatment. The conference order awarded her weekly and medical benefits. Her claim for payment of psychiatric treatment was denied. (Dec. 2.) The insurer appealed the conference order to a full evidentiary hearing. The employee underwent two § 11A medical examinations. Demosthenes Dasco, M.D., a neurosurgeon, examined the employee's back and neck on February 17, 1994. Earle O. Browne, M.D., conducted a psychiatric review on February 4, 1994. (Dec. 1-2; Ex. 9, 10.) Both examinations took place after the employee's February 2, 1994 hearing testimony was completed over the insurer's objection on the procedural sequence. (February 2, 1995 Tr. 4-5.)
The parties seem to have agreed to multiple § 11A examinations, even though such an approach has no support in the statute. See Pina v. LaChance Excavating, Inc., 10 Mass. Workers' Comp. Rep ___ n. 1 (January 31, 1996) and Oliveira v. Scrub-A-Dub, 10 Mass. Workers' Comp. Rep. ___ (January 31, 1996) (the statute contemplates only one § 11A examination).
At a "medical hearing" held on March 30, 1994 despite the insurers' assertions, the judge found the reports of Drs. Browne and Dasco adequate and the medical issues not complex. The insurer deposed Dr. Dasco on June 7, 1994. However, it precipitously suspended the deposition when Dr. Dasco testified he had not reviewed all of the medical records which had been submitted to him prior to rendering his reported opinion. At a second "medical hearing" held on June 21, 1994, the insurer again moved for a ruling that the report of Dr. Dasco was inadequate. After the judge suggested that the insurer cross-examine the doctor on the medical records not reviewed, the insurer agreed to reschedule the deposition. The doctor's deposition was reconvened on July 26, 1994. (June 21, 1994 Tr. 21.)
In the decision, the judge adopted Dr. Dasco's opinion that related the industrial accident to the employee's neck pain and subsequent surgery for the C5-6 herniation. Dr. Dasco opined that the employee's history of symptomatology in her neck, if believed, indicated relatedness between it and the industrial injury. (Dec. 5; Ex. 9.) The judge credited the employee's history of neck pain from the time of the accident. (Dec. 6, 10.) As for the psychological claim, the judge adopted § 11A Dr. Browne's opinion that the work injury and subsequent forced inactivity was predominantly the cause of her emotional instability. (Dec. 9-10.) On November 30, 1994 the decision issued awarding the employee continuing § 34 benefits from November 28, 1992. The decision also ordered the insurer to pay all medical costs for treatment of the employee's back, neck and psychological conditions resulting from the injury. (Dec. 11.)
On appeal, the insurer avers error in the finding that Dr. Dasco's report was adequate despite his admission that he had not reviewed all of the medical records submitted to him prior to formulating his § 11A report. The insurer also asserts that the Dr. Dasco's opinion was insufficient to establish causal relationship as a matter of law. We disagree.
When his deposition was reconvened, the insurer asked Dr. Dasco, the § 11A neurosurgeon, to review the records at issue. (July 26, 1994 Dasco Dep., 28-39.) At that time, the doctor testified about the impact those records had on his opinion curing any potential error in his initial failure to consider them. Moreover, after undertaking the judge's suggestion that a reassembled deposition might remedy the problem, the insurer did not renew its objection. We thus, consider it waived — though the dissent would downplay the significance of this omission.
Next, the insurer argues that the § 11A examiner's response based on these records is a legally insufficient support for a causal relationship finding. At one point the examiner testified:
I would have to say that it [the lack of any reference to neck pain in contemporaneous medical records] raises some doubts in my mind regarding my opinion in which I attributed the herniated disk in the neck to this injury of November 28, 1992. It raises some questions in my mind.
(Dasco Dep. 35.) However, the judge was not compelled to accord any particular weight to that portion of the deposition. The judge was free to adopt all, part or none of the expert medical opinion testimony. Amon's Case, 315 Mass. 210 (1943); Hannon v. Gillette Co., 7 Mass. Workers' Comp. Rep. 287, 291 (1993). At the end of the deposition, the doctor maintained, as he had expressed in his report, that "[i]f we believe that the neck pain was present from the very beginning, then it ties with the injury. It is caused by the injury." (Dasco Dep. 51.) Although the doctor felt the absence of reference to neck pain in the records raised "some doubts" on causation, (Dasco Dep. 52-53), the judge specifically adopted the portion of the doctor's opinion that established causation if there was veracity in the history of neck pain from the outset. (Dec. 5.) The judge correctly identified that the nature of this medical opinion required a specific credibility call on his part. He made that call.
Further, the judge articulated sound reasoning in explaining away the basis for the § 11A physician's doubt. He found:
. . . that the history as given by the employee is a credible one, that she banged her head at the time of the fall, and that she thereafter had stiffness in her neck and occasional spasms until the June incident in the garden, when this underlying condition became fully symptomatic.
While the absence of complaints about the neck in the medical record[s] is somewhat troubling, I credit the testimony of the employee that this was due to her preoccupation with her back condition, rather than some suggestion that she had no problems with her neck during this time.
(Dec. 6.)
Not only did the judge have the authority, but he was also bound to determine whether he credited the employee's testimony that her neck pain started at the occurrence of industrial accident. The judge did not thereby substitute his judgment for that of the impartial examiner, as contended by the insurer. He fulfilled his § 11B obligation to decide the issues in controversy by aligning the lay and medical testimony. (Dec. 6.) In so doing, he created a wholly sufficient basis upon which to conclude that causal relationship was established. See Josi's Case, 324 Mass. 415, 417-418 (1949); Bedugnis v. Paul McGuire Chevrolet, 9 Mass. Workers' Comp. Rep. 801 (1995). We discern no error in the treatment of the issues based on the evidence as it exists in the record.
However, we agree with the insurer that the sequence of lay hearing and the impartial examination allowed it no opportunity to examine the employee with regard to the history on which the medical examiner based his opinion. In O'Brien v. Blue Cross/Blue Shield, 9 Mass. Workers' Comp. Rep. 16 (1995), we determined that the erroneous procedure, invited by 452 Code Mass. Regs. 1.11(1)(d), of hearing lay testimony before the parties had received the § 11A medical report ran amuck of the plain meaning of G.L.c. 152, § 11A(2). Id. at 21-22. In that case we vacated the decision and remanded the case for a de novo hearing, due to its particular facts. Id at 26. In the case at bar, recommittal is appropriate because a correct statutory sequence would have allowed the insurer to cross-examine the employee with a particular focus on the undocumented history of neck complaints that underpins the medical examiner's causal relationship opinion. See Id. at n. 7; G.L.c. 152, § 11C.
Accordingly, we recommit the case for further proceedings consistent with this decision.
So ordered.
______________________ Susan Maze-Rothstein Administrative Law Judge
_______________________ Edward P. Kirby Administrative Law Judge
Filed: June 25, 1996
I concur in the majority opinion that the case must be remanded for further proceedings because of a failure to follow the hearing procedures set forth in G.L.c. 152, § 11A(2). SeeO'Brien v. Blue Cross/Blue Shield, 9 Mass. Worker's Comp. Rep. 16 (1995), appeal docketed, No. 07058 (SJC October 30, 1995). However, I disagree that, under the circumstances of this case, the insurer waived the issue of inadequacy of the impartial report. I dissent from the majority view that the judge's decision adequately responds to the insurer's motion for additional medical evidence on the grounds that the impartial medical examiner failed to read all the information submitted to him by the department.
The unread records contained history crucial to the insurer's defense. There is a significant danger that the insurer has been deprived of procedural due process by the impartial physician's failure to perform his statutory duty, coupled with the judge's refusal to allow additional medical evidence to rebut his initial report. See Safford v. Worcester Housing Authority, 10 Mass. Workers' Comp. Rep. ___, slip op. 5-6 (April 1, 1996) ("failure to allow additional medical evidence effectively denied the employee any meaningful opportunity to be heard on the determinative issue of causation raising significant and troubling questions of due process"). The judge's decision fails to adequately explain how the defect in the impartial process was remedied.
At conference the parties, pursuant to 452 CMR 1.10 (2), submitted a memorandum which identified a list of documents to be included in the medical records to be sent to an impartial physician. The impartial medical examiner testified candidly "that I did not review every single paper that was given to me in that thick file which, if I remember correctly, was at least an inch thick." (6/7/94 Dasco Dep. 14.) Instead the doctor reviewed those documents which he found to be pertinent. The only records which the impartial medical examiner found "pertinent" and kept in his file were all created months after the injury, contemporaneously with surgery for the disputed cervical condition. (Id. 10; see also 7/26/94 Dasco Dep. 5-6, 30.)
Upon discovering the impartial physician's dereliction, the insurer suspended the deposition and filed a motion for additional medical evidence. It argued that the impartial report could not be adequate, as a matter of law, unless the impartial medical examiner had reviewed and taken into consideration all the records and reports submitted to him for consideration by the department. (Id.) It maintained that the impartial process requires that the impartial medical examiner read all the documents sent to him by the department before formulating his opinion. (Id. 8, 9.) The employee's counsel took the position that the impartial medical examiner was not required to read all the information forwarded by the department. (Id. 15.)
The judge denied the motion for additional medical evidence and ordered the insurer to resume the deposition. He allowed counsel to bring to the deposition the records submitted through the department and to show those records to the doctor and examine him about them. (Id. 21.) Then, disregarding the impartial physician's opinion that additional medical record support was required to establish a causal connection between the injury and the cervical disc herniation, the judge found causation without allowing the insurer to introduce the prior inconsistent medical records which directly attacked the credibility of the crucial history testified to by the employee.
The failure of the impartial physician to review the medical records forwarded by the impartial unit prior to examining the employee presents a potent factor for the judge to consider in ruling on inadequacy. Section 11A requires the employee to provide the impartial examiner with all relevant medical information. This step in the impartial process is so important that the legislature provided penalties for noncompliance. Section 11A(2) requires the impartial examiner to render an opinion on permanent impairment and loss of function. Section 36(2), governing permanent impairment awards, requires that such assessments be determined in accordance with the standards set forth in the American Medical Association Guides to the Evaluation of Permanent Impairments. We must read these two sections together, interpreting them so as to yield a consistent and harmonious body of law. Kelley v. Jordan Marsh Co., 278 Mass. 101, 111 (1932).
Section 11A provides in pertinent part: "Failure of an employee to report to an impartial medical examiner agreed upon or appointed under this section or under section eight, after due notice and without cause, and failure to submit to such examiner all relevant medical records, medical reports, medical histories, and any other relevant information requested without good reason, shall constitute sufficient cause for suspension of benefits pursuant to section forty-five."
Evaluation using the AMA Guides requires the integration of previously gathered medical information with the results of a current clinical evaluation. To render a proper impartial report, the impartial medical examiner must integrate thepreviously gathered medical information with the results of the current clinical evaluation. Here the impartial medical examiner did not review the records prior to the examination and thus the integrated investigation which § 11A(2) contemplates was derailed. The impartial medical examiner himself confirmed that the examination process would have been different had he read the prior inconsistent history.
At conference the parties produce medical, hospital and rehabilitative records relevant to the claim. § 10A(1). The employee is required by § 11A(2) to submit to the impartial medical examiner "all relevant medical records, medical reports, medical histories and any other relevant information requested."
The AMA Guides provide:
In practice, the first key to effective and reliable evaluation of impairment is a review of office and hospital records maintained by the physicians who have provided care since the onset of the medical condition . . . Before formal evaluation is carried out . . ., an analysis of the history and course of the medical condition, including the findings on previous examinations, the treatment and responses to treatment, and the impact of the condition on life activities, must support a conclusion that an impairment is permanent and stabilized. . . .
This information gathering and analysis serves as the foundation upon which the evaluation of permanent impairment is carried out. . .
American Medical Association, Guides to the Evaluation of Permanent Impairment (3rd ed. revised, 1991) at 3. ( emphasis supplied).
The employee had given him a history of immediate onset of neck pain contemporaneous with the injury. At the second deposition, upon review of the previously unread medical records (which showed no contemporaneous neck complaints), the doctor testified:
I'm fairly certain that I did not review those notes. . . Because if I had, I would have questioned her [the employee] at length and possibly brought it up in my report that this patient had no neck pain based upon the records for a considerable number of months. She told me in the history that she had immediately experienced low back and neck pain. . . . And I assumed that to be true.
7/26/94 Dacso Dep. 30).
As we said in Martin v. Red Star Express, 9 Mass. Workers' Comp. Rep. 670, 671 (1995): "In administering the § 11A system of resolving medical issues, we must heed the principle: '. . . it is of prime importance, in the disposition of cases before us, not only that justice be done but that it appear to be done.' The integrity of a case's disposition is as essential to public confidence as is the disposition itself. Finally, procedures must 'further the accuracy' of a judge's determinations on material issues in dispute or serious due process problems arise." Martin, supra, at 670 (citations omitted).
Under § 11A(2) the power to rule on adequacy and complexity makes the judge the gate keeper of the accuracy of the medical evidence. Lebrun v. Century Markets, 9 Mass. Workers' Comp. Rep. 692, 696 (1995). The statute permits the judge on his own motion to allow additional medical evidence where a report is inadequate. Ultimately, it is the judge's responsibility to keep watch over the fairness of the department's adjudicatory proceedings. The failure of the insurer to renew its motion a third time is therefore not dispositive of the issue; the insurer never withdrew its motion for additional medical evidence and the judge retained the power to grant it.
The record raises concern that the insurer was unfairly deprived of an opportunity to protect and enforce its rights under the workers' compensation act by the denial of its motion for additional medical evidence. The impartial medical examiner opined that additional medical evidence was essential to a just determination of the causation question. Having reviewed the records contemporaneous with the injury, the doctor testified that he would change his causation opinion "if no other evidence presents itself to indicate that she had pain in her neck or in that vicinity or at least some pain in that area from early on." (7/26/96 Dasco Dep. 31.) It is clear that, to maintain his previously formed causation opinion in light of the records shown to him at the deposition, he wished to have some corroboration of the history given to him by the employee, "somebody else's report indicating that she had neck pain immediately or soon afterwards . . . within a few days." (Id. 32.)
When the insurer presented the impartial medical examiner with the previously unread records of the physician who treated the employee in May 1993, the doctor confirmed that they contained no reference to any neck or arm pain. (Id. 34.) He testified that those records together with the earlier unread ones raised "some doubts" in his mind regarding his previously expressed opinion that the herniated cervical disc was causally related to the November 28, 1992 injury. "It raises some questions in my mind . . . [a]s to whether the herniated disk in her neck was related to that injury or not." (Id. 35.)
Based upon the records the doctor reviewed for the first time at deposition, the doctor could not "tie or relate the herniated cervical disk to the injury . . ." (Id. 38-40.) Thus concluded the insurer's deposition questioning of the impartial physician. Employee's counsel then took her turn and attempted to repair the damage.
When the doctor in a hypothetical was given the later history from October 1993, which was similar to that which the employee had told him, he responded: "If we assume all those things that you mentioned, it is possible that the herniated disk may be related to that injury." (Id. 41-42, emphasis supplied.) When asked if it was probable, he responded:
I know that you want me to say its probable but I will not. I would like to see a little more evidence. . . if I may say so since I'm the expert and you're turning to me for an honest opinion, it is possible that she told Dr. Crowell the same that she told me, that the neck pain was present from early on in the beginning.
I mean based upon the other documents that I saw today, I'm not convinced that the neck pain was present from the beginning. The fact that she did have some bruise or contusion of the head is not proof enough for me to conclude that she definitely had injury enough to cause a herniated disk. . .
I would like to see somewhere in the medical records that this individual. . . had complained of at least some neck pain early on after the injury, at least in one of the other medical records. . . If there is such a record, I'd like to see it.
(Id. 40-41, emphasis supplied). of course, neither the doctor nor the judge was provided with any such record because the judge had not allowed additional medical evidence.
As the impartial medical examiner astutely observed, the crux of the case was whether the employee was telling the truth about when her neck symptoms began. (Id. 45, 50-51.) The impartial physician clearly felt that additional medical evidence was required to make an accurate judgement on this question. (Id. 46, 52-53.) He was disturbed that all the testing within seven months of the injury was directed towards the lower back. (Id. 46.) Even assuming that the employee was a hysteric person, he could not accept that even a hysteric person who has some neck pain will not say that she has neck pain. (Id. 47.)
In light of the impartial medical examiner's deposition testimony, it is unclear why the judge failed to open the record to admit the additional medical evidence that, in the impartial medical examiner's prima facie opinion, held the key to the case. When the impartial medical examiner was asked to review the previously unread records, he testified that they made a significant difference in his causation opinion. Having excluded this necessary medical information, the judge nevertheless found causation.
In Safford, supra, the reviewing board held that where impartial medical examiner needed more information to render an opinion on causation, the impartial report was inadequate as a matter of law. Id., slip op. at 5. The judge's decision here provides no basis to distinguish this case from Safford. The denial of the motion for additional medical evidence gives the appearance of justice denied; it does not appear to have adequately safeguarded the accuracy of the decision-making process or to have fulfilled the constitutional requirement of procedural due process.
In order to ensure that the judge applied the correct legal standards in ruling on the insurer's motion for additional medical evidence, we should remand for further findings of fact on the issue of whether further medical evidence is required, as we did in Martin. Without an explanation for the ruling, the judge's denial of the motion for additional medical evidence appears to have been arbitrary and capricious and contrary to constitutional law.
As the case is being remanded for further evidentiary proceedings, the insurer is free to renew its motion for additional medical evidence at the conclusion of the further lay hearing. Kirohn v. Parker-Danner Co., 10 Mass. Workers' Comp. Rep. ___, slip op. at 4-5 (January 31, 1996). "The 'safety valve' of the allowance of additional medical evidence may protect due process rights. Thus, while an adjudicator may assure due process rights by allowing or requiring additional medical evidence and could also thereby enhance his chances of accurate decision making, the disallowance of additional medical evidence can have quite the opposite effect." Safford, supra, slip op. at 6, citingO'Brien, supra; Kaminsky v. Univ. of Mass., 9 Mass. Workers' Comp. Rep. 623 (1995); Mendez v. The Foxboro Co., 9 Mass. Workers' Comp. Rep. 641 (1995); Lebrun, supra; and Kirohn, supra.
The order for further proceedings vitiates the basis for the judge's prior causation ruling and renders a new opportunity to provide the procedural due process required to reach a just result. The judge is not bound by his prior causation decision and may reach a different causation decision after considering the new evidence which will be presented on remand.
______________________ Suzanne E.K. Smith Administrative Law Judge