MCCARTHY, J.

In 1980, Joseph Figueredo went to work for the City of Fall River as a trash collector. He was then forty-two years of age. Mr. Figueredo was required to ride on the back of a trash wagon and pick up trash barrels and empty them into the truck. He did this work until February 9, 1987 when he was involved in a motor vehicle accident. On that date he was a passenger in a city owned vehicle which was struck in the rear by another motor vehicle. Mr. Figueredo was removed from the scene of the accident by ambulance and taken to St. Anne's Hospital where, after x-rays and treatment, he was released. At the time of the accident Mr. Figueredo was earning $247.00 a week as a trash collector. The insurer denied liability for workers' compensation benefits and the employee filed claim. Following a conference an order was issued by an administrative judge directing payment of weekly § 34 benefits at the rate of $164.78. The self-insurer did not appeal this order and weekly benefits were paid for five years until the maximum § 34 entitlement was reached.

Several days prior to the exhaustion of § 34 benefits the employee filed a claim seeking permanent and total incapacity benefits under § 34A. Following a conference on these claims an administrative judge issued a denial of payment. The employee appealed and the matter came back to the same administrative judge for a full evidentiary de novo hearing. The employee testified at the hearing eighteen days before the impartial medical examination under the provisions of § 11A(2) took place. Thereafter a "medical hearing" was held by the judge. The impartial medical examiner was then deposed and the deposition filed with the judge together with a Motion to Submit Additional Medical Evidence on behalf of the employee. The Motion was denied by the judge who determined that the impartial medical examiner's report was "adequate." Thereafter the judge filed a decision in which he concluded that the employee failed to sustain his burden of establishing entitlement to benefits under either § 34A or § 35. We have the case on appeal by the employee.

The issues raised by the employee all cluster around the § 11A impartial medical examination. First, the employee asserts that § 11A is unconstitutional and should not be employed as part of the dispute resolution process. As was pointed out in O'Brien v. Blue Cross Blue/Blue Shield, 9 Mass. Workers' Comp Rep. 16 (1995), appeal docketed, No. 07058 (SJC October 30, 1995) the reviewing board has no authority to declare a statute unconstitutional. In O'Brien we attempted to identify the constitutional concerns created by 11A and left it to the appellant to take the issue to the proper forum for determination. We need not repeat here what was said in O'Brien. See also Kaminsky V. University of Massachusetts, 9 Mass. Workers' Comp. Rep. ___ (October 31, 1995), appeal docketed, No. 95-J-908 (Mass.App.Ct. November 29, 1995). It is open to the employee to pursue his constitutional challenge by appealing to the Massachusetts Appeals Court under the provisions of § 12(2) of the Act.

The next issue raised by the employee on appeal is less ambitious. The employee points out that by following the provisions of 452 CMR 1.11(1) (d) and positioning the 11A(2) medical exam before the hearing the judge failed to follow the clear procedural order established by § 11A. This issue was also dealt with by the reviewing board in O'Brien. The legislature left no doubt that the examination was to be completed and the § 11A(2) medical report in hand at least seven days prior to the start of the hearing. When, as here, the inversion of exam and hearing is called into question we must agree with the employee that the process failed to follow the correct sequence.

Next the employee argues that the impartial examination is inadequate as a matter of law because the medical expert was unable to render an opinion with respect to the employee's claim of incapacity for the period February 21, 1992 until the date of the impartial examination on November 18, 1993. It is evident from a review of the deposition transcript that Doctor Kader, the § 11A examiner, not only had no opinion on the employee's medical condition during that period, (Dep. Doctor Kader 20, 21), he didn't even think that he was supposed to deal with it! This issue surfaced recently in George v. Chelsea Housing Authority, 10 Mass. Workers' Comp. Rep. (January 25, 1996). In George, the § 11A medical expert had no opinion with respect to the employee's disability for ten months of the claimed period. Here the medical examiner has no opinion for twenty one months. When the judge in George denied the employee's Motion to declare the report inadequate, the employee lost any chance of proving his case for that disputed period. The board found the denial of the motion to be error. Similarly the § 11A report in the case before us is inadequate as a matter of law with respect to the period from February 21, 1992 until November 18, 1993 and the judge erred when he declined to allow employee's Motion to declare it inadequate.

Finally the employee raises but fails to develop the argument that in forming his opinion with respect to the employee's medical condition the doctor relied in part on his observation of the employee walking in the parking lot after the examination was over. The judge made note of Doctor Kader's observations in his decision, thus;

As a result of Dr. Kader's taking a history from the patient, reviewing the submitted medical records, and examining the patient, Dr. Kader concluded that the examination brought forth serious inconsistencies. One of the observations that the doctor made was the fact that when the employee left his office limping badly and using the cane, as soon as he got outside into the parking area, he commenced to walk normally and felt no apparent need to use the cane. This observation coupled with the superficial tenderness which resulted from the mere touch of the patient's skin and which was felt to be inappropriate, along with the jerky response to gentle tapping of the lower back, which was also inappropriate, and along with the limitation of motion while standing which was not present while the patient was lying down suggested to Dr. Kader that the employee's reactions to this examination was (sic) exaggerated and inappropriate. (Dec. 7.)

While Doctor Kader was cross-examined in his deposition on his post examination parking lot observations a serious question arises as to whether this is beyond the scope of his commission under the provisions of § 11A. As this issue is not developed by the employee in his brief, we leave this question unanswered for the time being.

The decision in its present form may not stand. We set it aside and return the case to the senior judge for reassignment to the hearing judge. The 11A examination is inadequate as a matter of law for the time period for which the 11A examiner has no opinion regarding disability. The judge should allow additional medical evidence with respect to that period. In light of the debatable value of the impartial examiner's post exam parking area observations the judge should reconsider their probative value and delineate the extent, if at all, to which his findings are influenced by the view from the window. In his discretion he may direct that the employee be recalled for his sworn testimony on this issue.

So ordered.

_____________________________ William A. McCarthy Administrative Law Judge

_____________________________ Carolynn N. Fischel Administrative Law Judge

______________________________ Sara Holmes Wilson Administrative Law Judge

Filed:March 28, 1996