Opinion
BOARD No. 03416891
Filed: April 30, 1996
REVIEWING BOARD DECISION
(Judges Maze-Rothstein, Smith and Kirby)
APPEARANCES
Alan S. Pierce, Esq., for the employee at hearing and on brief
Mark Teehan, Esq., for the insurer at hearing
Found no longer disabled, the employee appeals. She argues that it is an error of law to limit, in any way, the submission of additional medical evidence once a finding of complexity is made pursuant to § 11A(2). For the reasons stated below, we vacate and remand. We do not reach this more general issue raised by the employee, because under the unique circumstances of this case, the judge exceeded his discretion when he found the § 11A orthopedic opinion inadequate for a period in contest and yet failed to allow additional orthopedic evidence.
On June 28, 1991, the employee was a bus operator for her employer, the MBTA. A would-be passenger attempted to board the bus with a large dog. (Dec. 4; Dr. Mullaly Dep. 8.) An argument ensued regarding the questionable station of the dog on the public vehicle. Id. Doubtless upset by the MBTA's lack of enthusiasm for canine riders, the dog sprang forward frightening the employee, who hastily tried to close the bus door. Id. In the effort she felt shocked and injured her neck, shoulder and lower back. Id. She treated conservatively with Dr. Greenler, an orthopedic surgeon, beginning in August of 1991 and continuing through the date of the hearing. (Dec. 4.) On August 18, 1992 the employee saw Dr. Robert Mullaly, a licensed clinical psychologist. The employee treated with Dr. Mullaly 22 times over the next 15 months. During the course of her treatment, Dr. Mullaly prescribed various anti-anxiety drugs. (Dec. 5.)
The employee received § 34 temporary total incapacity benefits on a without prejudice basis from June 28, 1991 to September 16, 1991. Subsequently, she filed two claims for continued § 34 benefits, asserting both physical, and psychological injuries. After the employee prevailed at conference, the self insurer appealed to a January 11, 1993 hearing de novo. Pursuant to G.L.c. 152, § 11A, Dr. James Gibbons, an orthopedic surgeon, was appointed as the medical examiner.
General Laws c. 152, § 11A "gives an impartial medical examiner's report the effect of 'prima facie evidence' with regard to the medical issues contained therein, and expressly prohibits the introduction of other medical evidence to rebut the prima facie effect of the impartial medical examiner's report unless the judge finds that additional medical testimony is required due to the complexity of the medical issue involved or the inadequacy of the report submitted by the impartial medical examiner." O'Brien v. Blue Cross/Blue Shield, 9 Mass. Workers' Comp. Rep. 16 (1995) appeal docketed, No. 07058 (SJC October 30, 1995).
Dr. Gibbons' August 20, 1993 § 11A report was followed by an October 25, 1993 "medical hearing". It was then that the employee moved for a declaration of the report's inadequacy or of the medical issues' complexity. The judge ruled the medical issues were indeed complex, but found the remaining orthopedic report adequate. Additional medical evidence was authorized only for the employee's psychological claim.
This appeal presents no challenge to the sequence of the now defunct "lay" and "medical" hearings format. See O'Brien supra.
Dr. Gibbons examined the employee on August 19, 1993. (Dec. 6.) As of the exam date, the doctor opined that the employee had recovered from her neck and back strain that occurred two years earlier. Id. Dr. Gibbons posited that those conditions had totally disabled the employee for one week and partially disabled her for two weeks from the date of injury.
In the August 5, 1994 decision, the judge rejected Dr. Gibbons' venture into a prior period of disability preceding the § 11A exam as an exercise in speculation. Id. The judge found it unfortunate that the record contained no expert medical evidence regarding possible fluctuations in the employee's medical condition that may have occurred during the two year gap period between the June 28, 1991 injury date and the August 19, 1993 § 11A report. Id. Nevertheless, the judge decided he needed no further expert testimony to establish the gradations of incapacity prior to that date. Id. The § 11A opinion stood as the solitary and exclusive orthopedic evidence in the case. See G.L.c. 152, § 11A(2) and supra n. 1.
On appeal, the employee argues three issues regarding § 11A: 1) bias of the impartial examiner; 2) deprivation of her due process right to present her case; and 3) error in the judge's failure to allow all additional medical evidence when he found the medical issues complex. The bias issue was not raised at the hearing, so we consider it waived. We have earlier acknowledged that the outcome of the constitutional due process argument is reserved for the courts. See O'Brien v. Blue Cross/Blue Shield, 9 Mass. Worker's Comp. Rep. 16 (1995) appeal docketed, No. 07058 (SJC October 30, 1995); Kaminsky v.University of Massachusetts, 9 Mass. Workers' Comp. Rep. ___ (October 31, 1995) appeal docketed, No. 95-J-908 (AC November 29, 1995). We address the employee's third issue.
The judge found complexity based on the employee's secondary psychological condition. He restricted the parties' offer of their own expertise to that condition only, accepting no additional medical evidence on the primary condition that allegedly gave rise to the condition in her mind. (Dec. 1; Findings of Medical Complexity, October 25, 1993.)
Upon a finding of complexity, where conditions intermingle such as a mental infirmity that arises from a physical injury, it may be proper to allow the parties to introduce all relevant and material medical evidence on each contested medical condition. Certainly, malaises of the body and mind can have synergies that interrelate and overlap. Recognition of this medical reality exists in the general rule that, "[t]here is no requirement that testimony on a question of discrete knowledge come from an expert qualified in that subspecialty rather than from an expert more generally qualified." Commonwealth v. Mahoney, 406 Mass. 843, 852 (1990). See also Antoine v. Pyrotector, 7 Mass. Workers' Comp. Rep. 337, 341 n. 1 (1993) (one causal standard used to assess physical work injuries that give rise to mental infirmity). Compare G.L.c. 152, § 1(7A) (differential standards for other types of injuries). We do not reach the issue of whether every finding of complexity requires allowance of all available medical evidence. Situations will arise where a reasonable limitation of additional evidence is within the scope of the judge's authority. Here, however the limitation was unreasonable.
In the instant case, there is no clear line between the etiology of the employee's orthopedic condition and her psychological condition. SeeDrake v. Goodman, 386 Mass. 88, 91 (1982) (treating orthopedic surgeon could render an opinion on psychological outgrowth from physical problem). The judge's finding of medical complexity was, in the first instance, appropriate. Further, the decision reveals that later, at the conclusion of the case despite his earlier ruling of adequacy, the judge also found the orthopedic opinion inadequate as to the period prior to the § 11A examination. On these facts we conclude, he abused his discretion by failing to permit additional orthopedic evidence.
Once a judge finds a case medically complex or the impartial report inadequate and thus not subject to the exclusionary restraints of § 11A, he is free to accept evidence, in the same forms as it had been presented under the practice extant prior to § 11A's 1991 inception commensurate with ordinary concepts of duplication and cumulation. That is, the employee and the insurer could be allowed to present medical evidence to support their respective views — by report with curricula vitae; by deposition; by live medical testimony; or by presentation of certified medical records. 452 Code Mass. Regs. 1.11(6); Mendez v. The Foxboro Co., 9 Mass. Workers' Comp. Rep. ___ (October 31, 1995) (additional medical testimony is inclusive of offerings pursuant to c. 233, § 79G).
Had the judge used the foregoing approach he would have avoided the pitfall of deciding a gap period of medical disability in a complex case on the questionable strength of lay testimony alone. See George v.Chelsea Housing Authority, 10 Mass. Workers' Comp. Rep. ___ (January 25, 1996) (for detailed discussion of gap issues). Having found the case complex, this was not an instance where the judge could make medical disability-findings without the benefit of expert opinion evidence. CompareLovely's Case, 336 Mass. 512, 516 (1957) (medical disability so simple that with a lay person's knowledge requisite findings could be made). The judge erred when he attempted to 'make do' with lay evidence to fill the gap period he perceived.
The judge stated:
[The § 11A examiner's] opinions in this regard are based not on his examination or review of [the employee's] specific treatment records, but rather on his general experiences with patients in his orthopedic practice. Therefore, his opinions as to the specific periods of disability more than two years prior to his examination of the employee amount to no more than speculation.
(Dec. 6-7.) (Emphasis added).
On appeal the parties do not question this ruling, thus, we do not address its propriety. G.L.c. 152, § 11C.
The judge also stated:
Unfortunately, the record contains no other medical evidence with regard to the employee's disability prior to August 19, 1993. Since the parties stipulated to the industrial injury, and since [the § 11A examiner] concedes a causal relationship between the injury and a disability, I find that further expert testimony is not required in order to establish the incapacity of the employee prior to August 19, 1993.
Id.
Accordingly, we vacate the decision in its entirety and remand the case for further proceedings. On remand, by the allowance of additional medical evidence on the intermingled conditions, the judge will afford himself a full contemporaneous medical record for his determination of the employee's medical condition and the extent of her incapacity.
______________________ Susan Maze-Rothstein Administrative Law Judge
_________________________ Suzanne E.K. Smith Administrative Law Judge
_______________________ Edward P. Kirby Administrative Law Judge
Filed: April 30, 1996