Opinion
BOARD No. 055971-93
Filed: December 23, 1997
REVIEWING BOARD DECISION
(Judges Smith, Maze-Rothstein, and McCarthy)
APPEARANCES
Kenneth A. Krems, Esq., for the employee.
Edward M. Moriarty, Jr., Esq., for the insurer.
The insurer appeals from the decision of an administrative judge awarding the employee a closed period of § 34 total incapacity benefits, ongoing § 35 partial incapacity benefits, reasonable and necessary medical treatment and attorney's fees. Because the date selected by the administrative judge to change the level of weekly incapacity benefits from § 34 total to § 35 partial compensation is unsupported by the evidence, we reverse that portion of the decision, and recommit the case for further findings of fact.
Nina Demeritt worked as a teacher at North Andover High School. On November 3, 1993, at the end of one of her classes, a student approached Demeritt and said: "Mrs. Demeritt, I'm going to shoot you." (Dec. 428.) Demeritt was frightened and asked if the student knew what he was saying. He responded "yes, I'm going to shoot you" and elaborated by stating "Mrs. Demeritt, I'm going to shoot you in the back of the head." Id. Demeritt reported the incident to her supervisor and became hysterical. The police were summoned and after some initial reluctance Ms. Demeritt agreed to press charges. Id.
Demeritt returned to work the next day and taught three classes. She then went to Lawrence District Court seeking a restraining order against the student. The request was denied and as she left the court she observed the student arriving in a police cruiser. Their eyes met, making Demeritt feel unsettled. While at court she had heard disturbing news about the student's past conduct. (Dec. 428.) The next day, Demeritt sought counselling. She did not report to school again until after Thanksgiving. Upon her return, she demanded a closed classroom for security. The school complied with her request and she performed her teaching duties for two weeks. As time went on she became increasingly apprehensive and believed that others were also in danger when in her presence. On December 13, 1993, Demeritt drove to school, broke down and began to cry. She notified the assistant principal that she had to go home. Demeritt has not returned to work since that day. (Dec. 429.)
Demeritt filed a claim for post traumatic stress disorder (PTSD) arising out of and in the course of her employment. After a § 10A conference, an administrative judge ordered the insurer to pay § 35 partial incapacity benefits from her last day of work and continuing. Both parties appealed to a § 11 de novo hearing. (Dec. 422.) Dr. Grassian was appointed as the impartial medical examiner pursuant to G.L.c. 152, § 11A(2). The impartial physician's report was admitted into evidence, (Employee's Ex. 4), and the doctor was deposed. The insurer then filed a motion for additional medical evidence. The judge found the medical report adequate as to the time period of November 3, 1993 to May 24, 1995, but inadequate as to Demeritt's condition thereafter. As a result, the judge allowed the parties to submit additional medical evidence for the period after May 24, 1995. (Dec. 423-424, 436-438.) The employee sought to have a reexamination by the impartial physician. The insurer objected and the judge denied the employee's request and permitted the parties to submit their own psychiatric evidence. (Dec. 424, 438.)
May 24, 1995 was the date when, in the opinion of the impartial physician, Demeritt might experience improvement from new medication.
Demeritt then retained Dr. Grassian, the impartial medical examiner, to prepare a report in support of her separate claim for Accidental Disability Retirement benefits from the town of North Andover. When, in addition to other medical evidence, the insurer offered the report of the Accidental Disability Retirement medical panel into evidence in this workers' compensation proceeding, the employee sought to submit the additional report from Dr. Grassian which had been submitted to the Accidental Disability Retirement panel. (Dec. 420, 425, 439.) Over the insurer's objection, the judge admitted the exhibit. (Employee's Ex. 5; Dec. 421, 425-426, 439-440.) The parties then conducted additional depositions, including a second deposition of Dr. Grassian.
Based on the opinions of Dr. Grassian and Dr. Hablas, the judge found that Demeritt suffers from PTSD causally related to the work incident, (Dec. 454-455), and as a result was totally medically disabled from November 3, 1993 to May 24, 1995. (Dec. 454.) The judge rejected Dr. Grassian's opinion that the employee remains unable to do any work and is permanently and totally disabled. Id. Based on Dr. Pentoliros' opinion, the judge concluded that Demeritt was totally incapacitated until December 4, 1995. (Dec. 458-459.) He concluded that as of December 5, 1995, the date of Dr. Pentoliros's deposition, Demeritt had regained the ability to earn $240 per week. (Dec. 459.) Accordingly, the administrative judge ordered the insurer to pay § 34 temporary total compensation from November 8, 1993 to November 28, 1993 and December 13, 1993 to December 4, 1995, and § 35 partial compensation thereafter. (Dec. 460.) We have the case on appeal by the insurer.
The insurer raises several issues on appeal:
(1) Was the administrative judge's failure to make specific findings of fact concerning the employer's light duty job offers an error of law?
(2) Did the administrative judge fail to "anchor in the evidence" his awarding of temporary partial disability benefits as of December 5, 1995?
(3) Was the administrative judge's admitting into evidence a report and deposition testimony of Dr. Grassian that was in addition to that he gave as an impartial examiner an error of law?
(4) Was the judge's ruling admitting into evidence, under the state of mind exception to the hearsay rule, statements made to the employee about the student who verbally assaulted her, an error of law, compounded by his reliance on that evidence in his decision?
(Insurer's Brief, 1-2.) We first address the date chosen to change the extent of incapacity, as that is dispositive.
The modification or discontinuance of weekly incapacity benefits must be based on a change in the employee's medical or vocational status which appears in the record evidence. Montero v. Raytheon Corp., 11 Mass. Workers' Comp. Rep. ___, slip op. at 3 (December 16, 1997); Laroche v. Revere Housing Authority, 10 Mass. Workers' Comp. Rep. 717, 718 (1996); D'Angeli v. McDonald's Restaurant, 1 Mass. Workers' Comp. Rep. 193, 195 (1987). A deposition date is ordinarily not rationally related to the employee's personal condition, either medical or vocational. Typically a deposition date merely reflects the day on which two busy attorneys and one busy doctor are able to find a mutually agreeable time to meet. Therefore it is an improper date for a change in benefit level. The finding that the employee's incapacity decreased from total to partial on December 5, 1995 is arbitrary and capricious. We reverse it and recommit the case for a new determination of the extent of incapacity.
Sanchez v. City Of Boston, 11 Mass. Workers' Comp. Rep. 235 (1997) does not require a contrary stance because, in the majority's view of that case, the appealing party could gain no more favorable relief than the judge had awarded. Such is not necessarily the situation here.
The judge found: "[T]he employee was totally disabled, until such time as Dr. Pentoliros formed his opinion that the employee could perform some nonteaching work of more than a trifling nature. . . . "[H]e expressly states that opinion in his December 5, 1995 deposition." (Dec. 459.)
The insurer also argues that the judge erred by failing to make adequate findings about the employer's job offer made on March 25, 1995. The judge had found that Demeritt was totally medically disabled at that time. There is no need for further findings on a job offer which an injured worker is incapable of performing. G.L. c. 152, § 35D(3). If, on recommittal, the judge determines that the employee regained the capacity to perform some remunerative work by the time of the job offer, then he should decide whether the job was "made available to the employee" and whether she was "capable of performing it." Id. An offered job which an employee is capable of performing is "suitable" "so long as it bears a reasonable relationship to the employee's work experience, education or training." G.L.c. 152, § 35D(5).
Next, the insurer argues that the judge erred by allowing the employee to introduce, as part of her additional medical evidence in the case, a second report and deposition of Dr. Grassian, the impartial physician. The Department rule, 452 CMR 1.14 (2), prohibits communications with impartial doctors by either party without the express consent of the administrative judge. We reject the rationale that the § 11A impartial medical examiner was no longer serving in that capacity at the time of employee counsel's ex parte contact. An impartial physician does not complete his role with the submission of his report. He may be asked for further medical evidence at any time until the completion of the case. See G.L.c. 152, § 11 ("At the hearing the member . . . may require and receive any documentary or oral matter not previously obtained as shall enable him to issue a decision with respect to the issues before him."). Any ex parte contact with the impartial medical examiner before a case is finally decided is improper. However, counsel's error did not affect the case's outcome. The judge did not rely upon this additional evidence from the impartial physician in reaching his decision. The error was harmless.
As a final issue, the insurer argues that the judge erred in admitting totem pole hearsay (she said-he said-they said) and relying on it for the truth of the statements it contained. Demeritt testified about what police officers told her concerning statements made to them by the student's parents. (Tr. 1, 24, 27-28.) The insurer timely objected on hearsay grounds. (Tr. 1, 24-27.) The employee responded that the statements were not being offered for their truth but merely for their effect on the employee's psychological state. Id. The judge ruled that he would permit the testimony and would consider it only for the effect of the statements upon the employee's state of mind. Id. at 27. The employee then testified about what the detective(s) said the student's parents said about their son. Id. In his decision, the judge characterized the detectives' statements as "disturbing news about the student's prior conduct." (Dec. 428.) The judge then set out the content of the parents' statements. (Dec. 428-429.)
Section 11 hearings are governed by the rules of evidence. 452 CMR 1.11(5). Hearsay is generally inadmissible. An out of court statement offered for its truth is hearsay. Two levels of hearsay are involved in Demeritt's testimony. The first level is the extrajudicial statements of the detectives; the second level is the statements made to the detectives by the student's parents. The police officer would not be competent to testify at the hearing regarding the parents' statements to him, unless those statements were not being offered for their truth (in which case the hearsay rule would not apply) or unless they came within into some other exception to the hearsay rule, such as the state of mind exception. Kelly v. O'Neil, 1 Mass. App. Ct. 313, 316 (1973);Julian v. Randazzo, 380 Mass. 391, 392 (1980) (witness statements contained in police report). Thus, the out of court statements made to and repeated by a police officer may not be considered substantively, i.e. for their truth. See Care and Protection of Inga, 36 Mass. App. Ct. 660, 664 (1994) (hearsay contained in child protection report).
The employee maintains that the employee's testimony about the parents' statements to the police was admissible under the "state of mind" exception to the hearsay rule. Under this exception, the statements are not admissible to prove the facts stated, but only the declarant's state of mind. Com. v. Zagranski, 408 Mass. 278, 282-283 (1990). The state of mind of these declarants, the detectives and the parents, was irrelevant to the employee's claim that she suffered a mental injury.
However, the statements fall into another category which render them admissible. Demeritt's testimony was not offered to prove the truth of the police officer's or parent's statements; it was offered to prove that she had heard what the police officer said. She claimed that the statements upset her, aggravating her mental condition. Thus the statements were relevant on the question of Demeritt's mental injury. It did not matter whether the statements were actually true. See P. Liacos, Massachusetts Evidence, § 8.2.2, at 438-440 (6th ed. 1994); Seelig v. Harvard Cooperative Society, 355 Mass. 532, 540 (1969) (out-of-court testimony not admissible to prove the truth of its contents, but admissible to prove that it had been said).
Since Demeritt's testimony about what the detective had told her was offered only to prove that Demeritt was in receipt of that information, Demeritt's testimony did not violate the hearsay rule. McNamara v. Honeyman, 406 Mass. 43, 55 (1989). Indeed, it was not hearsay. P.J. Liacos, Massachusetts Evidence 438 (6th ed. 1994) ("An extrajudicial statement is not hearsay when offered to prove that the person to whom it was addressed had notice or knowledge of the contents of the statement"). Id. at 435 ("The hearsay rule forbids the admission in evidence of extrajudicial statements offered to prove the truth of the matters asserted in the statements"). Id. at 436 ("The word 'hearsay' does not embrace an extrajudicial statement offered to prove something other than the truth of the statement"). The judge correctly allowed the statements into evidence. Because it is unclear from the decision whether the judge accepted the content of these statements as true, or merely recited the employee's testimony about them, on recommittal, the judge should clarify his findings.
In summary, we reverse the date of reduction of weekly benefits from total to partial and recommit the case for further findings in accordance with this opinion. In the light of the passage of time during the pendency of the appeal, the judge may take whatever additional evidence is necessary to render a just decision.
So ordered.
________________________ Suzanne E.K. Smith Administrative Law Judge
________________________ William A. McCarthy Administrative Law Judge
________________________ Susan Maze-Rothstein Administrative Law Judge
Filed: December 23, 1997