Opinion
BOARD No. 36733-94
Filed: February 26, 1998
REVIEWING BOARD DECISION.
(Judges McCarthy, Maze-Rothstein and Smith).
APPEARANCES.
Gregory D'Ambrosio, Esq., for the employee.
William R. Maher, Esq., for the insurer.
The employee appeals from an administrative judge's decision awarding § 34 weekly temporary total incapacity benefits for a closed period. Because we find an evidentiary error going to a pivotal issue in the case, we reverse and recommit for findings based on properly admitted evidence.
On September 2, 1994, Mr. Guzman was injured while cleaning a machine. A brush struck a starter switch, causing a metal part to strike him, resulting in a fractured nose, cervical strain, contusions to his wrist and pain in his hand. (Dec. 6-7.) Following a § 10A conference, the judge ordered the insurer to pay weekly § 34 compensation from September 24, 1994 to January 31, 1995 and related medical expenses.
The employee appealed. Following a hearing de novo at which the insurer agreed that the accident occurred, the judge found that the employee was not credible. (Dec. 7-8; 10-13.) Adopting the medical opinion of the § 11A examiner, she found that by June 13, 1995, the date of the § 11A examination, the employee was no longer incapacitated by his work-related nasal fracture or cervical strain. The judge rejected the opinion of Dr. Jacques, submitted by the employee, and found that the employee was not incapacitated from dizziness or migraine headaches as a result of the industrial accident. She awarded § 34 weekly benefits in the amount of $124.73 based on an average weekly wage of $207.88 and related medical expenses from September 2, 1994 to June 13, 1995. Benefits after that date were denied.
On appeal from that decision Guzman raises several issues, one of which we find meritorious. We conclude that the Whidden Memorial Hospital records from September 2, 1994, the date of injury, were improperly admitted into evidence. Therefore, we reverse the findings based upon it and recommit the case for a new decision.
The employee also argues that he was prejudiced by the insurer's closing argument; that the judge wrongly discredited the employee's testimony regarding his continuing complaints in the face of uncontradicted medicals; that the judge erred in not allowing a second § 11A exam by a neurologist; and that the § 11A report was not timely received.
In the course of the hearing, the judge marked as Insurer's Exhibit 2, hospital records from the Whidden Memorial Hospital which included an emergency room admission sheet, dated September 2, 1994. (Dec. 1; Insurers' Exhibit 2; Tr. 63-67.) The employee objected because the hospital record was not certified as true and complete by a person having custody of the record. The judge responded by stating that she would admit the records only for purposes of impeachment by means of a prior inconsistent statement. (Tr. 63-64.) See W. Young, J. Pollets C. Poreda, Massachusetts Evidentiary Standards §§ 801, 803, 805, 806 (1995).
In her decision, the judge referred to this exhibit as no. 3. We deem this to be a scrivener's error. (Dec. 1, 7.)
The judge however went on to make key factual findings implicating these records. The judge noted that the employee testified that he was made unconscious by the blow and woke up in the hospital not knowing where he was. (Dec. 7; Tr. 46-49, 62.) Guzman recalled speaking through an interpreter to a nurse at the hospital, but did not remember denying to anyone that he had lost consciousness. (Dec. 7.; Tr. 62-63.) The hospital records contain the notation, "d-in-l-o-c" which is shorthand for denies loss of consciousness. (Dec. 7; Insurer's Exhibit 2.) Based in part on these records, the judge concluded that the employee did not suffer a loss of consciousness and found his testimony regarding the same to be not credible. (Dec. 7.)
The scope of a judge's authority to admit evidence is governed by 452 CMR 1.11 (5) which provides in pertinent part: "[u]nless otherwise provided by G.L.c. 152 or 452 CMR 1.00, the admissibility of evidence . . . shall be determined under the rules of evidence applied in the courts of the Commonwealth." The introduction of hospital records in proceedings at this agency is provided for by G.L.c. 152, § 20. Since it was amended in 1988, G.L.c. 233, § 79G also provides for the admission of hospital records as well as reports from treating physicians at agency proceedings. These sections in effect provide an exception to the hearsay rule. Bouchie v. Murray, 376 Mass. 524, 527 (1978). However, even where a hearsay exception is applicable, a document must be properly identified and authenticated as a condition precedent to admissibility in compliance with the requirements of that exception. See P.J. Liacos, Massachusetts Evidence §§ 12.1, at 684; 12.3.4, at 690 (6th ed. 1994). It is the proponent of the hospital record who has the burden of establishing authentication. See Doyle v. Dong, 412 Mass. 682, 693 (1992) (Liacos, C.J., dissenting). The requirement for authentication by certification is absolute under G.L.c. 152, § 20. See L. Locke, Workmen's Compensation § 519, at 640-641; § 415, at 491-492 (2d ed. 1981).
General Laws c. 152, § 20 provides in pertinent part:
Copies of hospital records kept in accordance with section seventy of chapter one hundred and eleven, certified by the persons in custody thereof to be true and complete, shall be admissible in evidence in proceedings before the division or any member thereof. The division or any member, before admitting any such copy of evidence, may require the party offering the same to produce the original record. All medical records and reports of hospitals, clinics and physicians of the insurer, employer, or of the employee shall be filed with and open to the inspection of the division so far as relevant to any matter before it. Such reports shall be open to the inspection of any party." (Emphasis added).
Even though records are "filed and "open" to the inspection of the division, they are not admissible into evidence without compliance with the proper prerequisites. See Fiander's Case, 293 Mass. 157, 164 (1936). L. Locke, Workmen's Compensation § 513, at 627 (2d ed. 1981).
General Laws c. 233, § 79G provides in pertinent part:
In any proceeding commenced in any court, commission or agency, an itemized bill and reports, including hospital medical records, relating to medical, dental, hospital services, prescriptions, or orthopedic appliances rendered to or prescribed for a person injured, or any report of any examination of said injured person, including, but not limited to hospital medical records subscribed and sworn to under the penalties of perjury by the physician, dentist, authorized agent of a hospital or health maintenance organization rendering such services or by the pharmacist or retailer of orthopedic appliances, shall be admissible as evidence of the fair and reasonable charge for such services or the necessity of such services or treatments, the diagnosis of said physician or dentist, the prognosis of such physician or dentist, the opinion of such physician or dentist as to proximate cause of the condition so diagnosed, the opinion of such physician or dentist as to disability or incapacity, if any, proximately resulting from the condition so diagnosed; provided, however, that written notice of the intention to offer such bill or report as such evidence, together with a copy thereof, has been given to the opposing party or parties, or to his or their attorneys, by mailing the same by certified mail, return receipt requested, not less than ten days before the introduction of same into evidence, and that an affidavit of such notice and the return receipt is filed with the clerk of the court, agency or commission forthwith after said receipt has been returned. Nothing contained in this section shall be construed to limit the right of any party to the action to summon, at his own expense, such physician, dentist, pharmacist, retailer of orthopedic appliances or agent of such hospital or health maintenance organization or the records of such hospital or health maintenance organization for the purpose of cross examination with respect to such bill, record and report or to rebut the contents thereof, or for any other purpose, nor to limit the right of any party to the action or proceeding to summon any other person to testify in respect to such bill, record or report or for any other purpose. (Emphasis added).
An erroneous admission or exclusion of evidence need not be a fatal error. Indrisano's Case, 307 Mass. 520, 523 (1940). (harmless error). However, where it goes to pivotal factual findings and where there is a substantial risk of injustice, the error is not harmless. Id. The contents of the uncertified hospital records were crucial to the judge's finding. "I am persuaded by the weight of the credible evidence that he did not suffer a loss of consciousness." (Dec. 8.) As the employee testified at trial, that he "woke up" at the hospital, not knowing where he was, the notation "d-in-l-o-c" on the hospital record was relied upon by the judge ostensibly as a prior inconsistent statement to find that his credibility was impeached. (Tr. 46, 48-49.) This hospital record was key to the judge's credibility assessment. (Dec. 7-8.)
In addition, the judge went beyond making a credibility finding and made an affirmative finding on the truth of the matter, that is, that the employee did not indeed suffer a loss of consciousness. (Dec. 8.) She adopted as fact the recorder's statement in the hospital record that the employee denied a loss consciousness. (Dec. 7-8; Insurer's Exhibit 2.) This finding of substantive fact was based on inadmissible hearsay, because of lack of compliance with G.L.c. 152, § 20.
As the hospital record at issue was not properly authenticated by certification from a record custodian, the judge's credibility finding, as well as her substantive finding on the loss of consciousness must fail because they are not based on competent evidence. Even where a hospital report is only admitted for purposes of impeachment by a prior inconsistent statement, rather than as substantive evidence, it must comply with the certification requirement of G.L.c. 152, § 20, for proper authentication. See Wingate v. Emery Air Freight Corp., 385 Mass. 402, 404, 407 (1982); Liacos, J., concurring, 408-409. (where business record admitted only for purposes of impeachment, must comply with statute and admission cannot be regarded as harmless error if it does not). It is not clear if the credibility findings based on this hospital record impacted in any way on the judge's credibility findings on the alleged continuing dizziness and migraine headaches which were supported by uncontradicted medical evidence. On remand, the judge is to reassess these findings. (Dec. 10-13; Jacques Dep. 10-14.)
It is important to note that even if a document is properly authenticated, it may be inadmissible on other grounds, such as relevancy or hearsay. J.J. McNaught J.H. Flannery, Massachusetts Evidence; A Courtroom Reference § 18, at 18-2 (1990).
Furthermore, even if the hospital record were properly authenticated and admitted into evidence, the statement included therein, "d-in-l-o-c", denying loss of consciousness, cannot be deemed a non-hearsay prior inconsistent statement for purposes of impeachment. While there is no requirement for complete contradiction, where there is a failure of memory at trial about the fact, as in this case, the prior statements are not admissible for impeachment purposes, because the court does not deem a lack of memory to be inconsistent with anything.Commonwealth v. Greene, 9 Mass. App. Ct. 688, 692 (1980); seeCommonwealth v. Chin Kee, 283 Mass. 248, 261 (1933); Corsick v. Boston Elevated R.R., 218 Mass. 144, 147 (1914); see Wingate,supra at 404. Compare Lagan v. Pianowski, 307 Mass. 149, (1940).
Accordingly, we reverse and recommit this case for a decision based on properly admitted evidence and without considering anything in the Whidden Hospital records as a prior inconsistent statement or as substantive evidence. If there is any other evidentiary purpose for these hospital records then proper authentication must be followed per c. 152, § 20. The judge may take further evidence if she deems it necessary to her determination.
So ordered.
______________________________ William A. McCarthy Administrative Law Judge
______________________________ Susan Maze-Rothstein Administrative Law Judge
This hospital record, although not admissible as a prior inconsistent statement, could be admissible as a record of a patient's own account of his medical history provided for the purpose of diagnosis and treatment. Unlike G.L.c. 233, § 79, c. 152, § 20 contains no limitation on the admission of certified hospital records. Fitz Gibbons's Case, 374 Mass. 633, 639, n. 2 (1978). If the hospital record were properly authenticated as required by G.L.c. 152, § 20, it could be considered for the truth of the matter asserted. Liacos, Massachusetts Evidence, § 8.14 at 513 (6th Ed., 1994), citing Bouchie v. Murray, 376 Mass. 524 (1978). The judge could then base a factual finding that the employee did not lose consciousness upon it. However, because the record was not certified as § 20 requires, the judge's reliance upon it was erroneous. For this reason, I concur.
______________________________ Suzanne E.K. Smith Administrative Law Judge