Opinion
Board No. 06948990
Filed: August 17, 1995
REVIEWING BOARD:
Judges Maze-Rothstein, Kirby, and Smith.
APPEARANCES:
Noel A. Winston, Esq., for the employee.
David G. Shay, Esq., for the insurer.
The employee appeals from the decision of an administrative judge awarding her § 34 temporary total benefits from June 11, 1991, to November 19, 1991. We address the sole issue raised on appeal. The employee charges error in the judge's refusal to reopen the record. Finding the judge did not err in that regard, we affirm the decision.
Physical work as a grocery clerk seems to have taken its toll on the employee's back. She had a series of back injuries. She injured and reinjured her back twice, on November 16 and December 4 of 1989. (Dec. 3.) The insurer accepted the claim from each injury. Id. Returning to grocery store work in March 1990, she was assigned to light duty at the customer service desk. Id. On December 11, 1990, while lifting a box of coins weighing approximately twenty pounds, the employee again reinjured her back. Id. The insurer, no longer so amenable, contested this second reinjury. On that occasion, the employee reported the injury to her employer and left work. (Dec. 4.)
The employee treated with Bradford A. Selland, M.D., who had treated her for her previous work-related injuries. Id. She received five months of physical therapy from January 8, 1991, to June 10, 1991. Id. Around the time of the contested injury, the employee had tidings of a different kind; she became pregnant. Id. Due to her pregnancy, the employee had to forego customary diagnostic tests to evaluate the injury until sometime after the September 1991 birth of her child. Id.
At hearing the judge adopted the testimony of both the employee's medical expert, Dr. Selland and the insurer's expert, Zohrab Kassarjian, M.D. She found that the December 11, 1990, injury was work related and compensable. The principal divergence between the medical experts involved the extent of the employee's incapacity. (Dec. 5.) The judge found the medical evidence sufficiently established the employee's total incapacity from December 11, 1990, to June 10, 1991. However, she felt that by June 11, 1991, the employee's total incapacity had reduced to partial incapacity. (Dec. 5.) Further, the judge found that, as of November 19, 1991, the employee's partial incapacity ceased, leaving her fully capable of work. (Dec. 6.) The judge based her conclusion on a note in Dr. Selland's medical report of the same date.
Thus, the judge found two distinct prior periods of incapacitation. First, she found that the employee was totally incapacitated from December 11, 1990, to June 10, 1991. Second, the judge found partial incapacity from June 11, 1991, to November 19, 1991. The sum and substance of these findings raise issues not on appeal. As such we do not reach them.
Instead, the employee raises but one issue as regards the judge's denial of a motion to reopen the record. The employee filed a Motion to Reopen the Hearing Record with the administrative judge on January 29, 1993, based upon a deterioration of the employee's condition that occurred during the one year that elapsed between the close of the hearing and the issuance of the judge's hearing decision. The judge denied the Motion on the grounds that medical reports concerning the deterioration were available prior to the issuance of the decision.
The employee alleges to have received nerve blocks" in August 1992 and to have undergone surgery in December of 1992.
Although the statutory limit for the issuance of hearing decisions is thirty days from the close of hearing proceedings, the administration of multitudinous cases often makes this ideal unattainable. Here, although the hearing was held on November 4, 1991, the medical record closed on January 6, 1992, and memoranda deadlines fell on January 29, 1992, the hearing decision did not issue until January 25, 1993.
There is no question that an administrative judge is granted broad discretion in deciding whether to reopen the record in a proceeding. Nonetheless, case law provides guidance for deciding such a question. See Davis v. Boston Elevated Ry. Co., 235 Mass. 482, 495-496 (1920); Goulet v. APA Transp. Corp., 8 Mass. Workers' Comp. Rep. 338 (1994). Among the considerations an administrative judge should apply in determining whether to reopen a hearing for further evidence are:
1. whether the evidence could have been produced by the moving party at the hearing by the exercise of due diligence;
2. whether there was laches after the discovery of the evidence;
3. whether the evidence is material; and
4. whether there will be a miscarriage of justice by either denying or granting a motion to reopen. See Davis, supra at 495-496.
The employee argues that although she could always file a new claim based upon the new evidence, "[t]o not reopen the hearing decision . . . would be judicially very inefficient." (Motion of January 29, 1993.) Surely, given the one-year lapse between the hearing and the filing of the decision; the significant change alleged by the employee at the tail end of the year-long period; the identity of issues and parties and the expense of starting the dispute resolution process again from scratch — not to mention considerations articulated in Davis, supra — the judge might have wanted to consider the advisability of reopening the record. Certainly the filing of the Motion to Reopen four days or more after the filing of a hearing decision was itself no impediment to reopening the record. See McElhinney v. M.B.T.A., 9 Mass. Workers' Comp. Rep. 349, 353 (1995) citing Goulet v. A.P.A. Transp. Corp., 8 Mass. Workers' Comp. Rep. 338, 339 (1994). There is force to the employee's argument. Nonetheless, where discretion is accorded it can only be overcome when it has been abused. The decision not to reopen cannot be so characterized and is therefore affirmed.
Yet to preserve the employee's rights and to assist her navigation of thorny res judicata questions that may arise, we rule under the specific circumstances and equities of this case, the employee may file her new claim by reason of § 16 from the date of the close of the evidence as opposed to the filing date of the decision or some other factual marking point.
G.L.c. 152, § 16, provides, in pertinent part:
. . . no subsequent finding by a member or the reviewing board discontinuing compensation on the ground that the employee's incapacity has ceased shall be considered final as a matter of fact or res adjudicata as a matter of law, and such employee . . . may have hearings as to whether his incapacity . . . is or was the result of the injury for which he received compensation.
The decision is affirmed.
So ordered.
Judges Kirby and Smith concur.