Opinion
BOARD No. 38828-94
Filed: December 8, 1997
REVIEWING BOARD DECISION
(Judges Fischel, Levine and Wilson)
APPEARANCES
Michael A. McKinnon, Esq., for the employee.
Joseph S. Buckley, Esq., for the self-insurer.
Both parties appeal from a decision in which the administrative judge found that the employee had suffered an industrial injury, and awarded closed periods of temporary total and partial incapacity benefits. The self-insurer contends that the judge erred by awarding benefits without medical evidence to support his incapacity findings. The employee contends that the judge erred by not allowing him to depose his own doctor, and by terminating incapacity benefits as of the date of the § 11A medical examination. Because the record is incomplete and unclear as to the judge's allowance of additional medical evidence under § 11A(2), the case is not susceptible to our review at this time. See Praetz v. Factory Mutual Engineering Research, 7 Mass. Workers' Comp. Rep. 45, 47 (1993). We recommit for clarification and further findings.
The employee, who worked as a heavy mechanic for the M.B.T.A., was injured while working in September 1993. (Dec. 3-4.) She received treatment and continued to work with pain until April 25, 1994, when the pain in her right hand was so severe that she could not work. (Dec. 4.) She returned to work on August 7, 1994, but left again on October 12, 1994, and has not returned since. Id.
The uncontradicted testimony was that the employee dismantled engines, stripping heads from bus engines by use of a three pound sledgehammer and a twenty to thirty pound impact gun. (Tr. 17-20.)
The Massachusetts General Hospital Emergency Room made a probable diagnosis of carpal tunnel syndrome. Id. A nerve conduction study on July 19, 1994 documented slow sensory conduction across the carpal tunnel on her right side. (Dec. 4-5.) However, the impartial neurologist opined that, while her EMG findings were positive, as of the date of his March 9, 1995 examination the employee did not have carpal tunnel syndrome, and had no neurological abnormality. (Impartial report; Dec. 5, 6.) The judge found the impartial report to be adequate. (Dec. 2.)
The judge found the self-insurer liable for a September 1993 work injury, and that the employee was temporarily and totally incapacitated from April 25 until she returned to work on August 7, 1994. (Dec. 6.) He ordered the self-insurer to pay partial incapacity compensation from the date she again left work, October 13, 1994, until March 9, 1995, the date of the § 11A examination. (Dec. 8.) The judge adopted the medical opinion of the impartial examiner, that she did not suffer from carpal tunnel syndrome at the time of his examination. (Dec. 6.) The judge found that the employee's work related incapacity ceased at that time. (Dec. 7.)
In its brief, the self-insurer asserts that, after the lay hearing, as a result of a status conference held on May 11, 1995, the judge actually did allow the parties to submit additional medical evidence for the time period prior to the § 11A examination. (Self-insurer's brief at 2, 8; Self-insurer's response brief at 3.) Apparently the parties mailed in their medical records soon thereafter, which the self-insurer includes with letters of confirmation appended to its brief. (Exs. A and B to Self-insurer's brief.) The employee does not contest the authenticity of these materials.
The decision makes no reference to the May 11, 1995 status conference and fails to list as exhibits the additional medical exhibits the parties claim to have submitted. Nor is there reference to the parties' medical submissions in the judge's decision. There is nothing whatsoever in the record to indicate that this status conference and allowance of additional medical evidence occurred. The § 11A examiner's report, which the judge deemed adequate, is the only exhibit listed in the decision. (Dec. 1, 2.)
The self-insurer contends that there was no medical evidence to support the judge's findings of incapacity, even if the submitted records were considered. (Self-insurer's brief at 5-7.) The employee contends that the § 11A examiner's report was inadequate as a matter of law, since, she alleges, he was unable to address her non-neurologic abnormalities. (Employee's brief at 3-5.) She contends that she should have been allowed to submit medical evidence regarding her condition after the impartial examination particularly where, she says, the judge credited her testimony at hearing that she had "continuing chronic pain . . . and that she had to avoid certain types of work and movements." (Employee's brief at 4-5; Dec. 5; Tr. 3, 5-7.)
We cannot review the parties' claims regarding the medical evidence without the judge having first made subsidiary findings of fact as to that evidence. Because it appears that the record is incomplete, we must recommit the case for the judge to clarify on the record whether additional medical evidence was allowed and the scope of that allowance, to mark such records as were introduced by the parties as exhibits, and to make findings based upon the evidence.
The employee also argues that the judge erred by refusing to allow her to present medical evidence in the form of a deposition of her treating physician, who examined her for the first time after the impartial examination. We note from the transcript that the judge denied the employee's request for the deposition at the same time that he denied the employee's first request to introduce additional medical evidence, on the basis that the request had not been made at the § 10A conference. (Tr. 3, 11.) Since the doctor in question was not yet the treating physician as of the § 10A conference, however, we do not understand the reasoning behind the exclusion. In any event, the scope of the judge's allowance of additional medical evidence must be clarified on recommittal, so this issue should be addressed at that time, as well.
If the judge, as the employee maintains, did credit her testimony of continuing chronic pain and work limitations as of the time of hearing, allowance of medical evidence covering that time period would provide each party with a fair opportunity "to make out [its] position on the disputed issue." O'Brien's Case, 424 Mass. 16 22 (1996). "Certainly a decision by [an] administrative judge to foreclose further medical testimony where such testimony is necessary to present fairly the medical issues would represent grounds either for reversal or recommittal." Id. at 22-23; See Wilkinson v. City of Peabody, 11 Mass. Workers' Comp. Rep. 263 (1997).
We therefore recommit the case for further proceedings and clarification of the judge's allowance of additional medical evidence. So ordered.
_______________________ Carolynn N. Fischel Administrative Law Judge
______________________ Frederick E. Levine Administrative Law Judge
______________________ Sara Holmes Wilson Administrative Law Judge