Opinion
Board No. 3745-87
Filed: April 14, 1995
REVIEWING BOARD:
Judges Maze-Rothstein, Kirby and Smith.
APPEARANCES:
Michael J. Powell, Esq., for the employee.
Marian Grimes, Esq., for the insurer.
The insurer asserts a meritorious appeal on the administrative judge's decision to award the employee continuing partial compensation benefits. G.L.c. 152, § 35. The judge deprived the parties' due process right to move for additional medical evidence and/or to depose the statutory medical examiner pursuant to G.L.c. 152, § 11A (2). Further, the judge's failure to rule on the employer's light duty job offer is error. We vacate the decision and remand the case.
In his decision, the judge erroneously described the case as an insurer's complaint to modify or discontinue.
The judge found the employee, a painter for the University of Massachusetts, Boston, sustained a work related knee and back injury on January 22, 1987 when, while moving desk chairs, he caught his left leg on carpeting. (Dec. 3.) The judge adopted the § 11A examiner's medical opinion derived from an April 15, 1993 evaluation. (Dec. 4 and 6.) In reviewing the examiner's opinion the judge noted that despite a surgical repair, "studies suggest [the employee] still has a tear of the [medial] meniscus." (Dec. 4.) He also noted that the medical examiner, who attributed the employee's present disability to the workplace injury, restricted his stair climbing, lifting and driving. (Dec. 5.)
On the above findings the judge assigned an earning capacity and awarded the employee continuing partial compensation benefits from the date claimed.
The judge's treatment of the case presents two decision making errors. First, at the time of hearing, the parties did not have the § 11A report, contrary to statutory requirements that it be received no less than a week prior to hearing. G.L.c. 152, § 11A. In fact, the hearing preceded the § 11A medical examination by five weeks. Moreover, the judge decided the case and issued the decision without affording the parties an opportunity to address the adequacy of the report move for additional evidence and/or request authorization to depose. Thereby, the judge deprived the parties of their due process rights. Second, aside from a witness list noted at the outset, (Dec. 2), the decision overlooks, ignores or neglects to address the testimony regarding a light duty return to work offer with wages in excess of the employee's former average weekly wage. We address each deficiency in turn.
The case at bar was subject to the provisions of § 11A that, since its 1991 amendment, has governed medical evidence in workers' compensation cases.
Section 11A provides in pertinent part:
(1) With the assistance of the medical consultant to the commissioner and the administrative judges, the senior judge shall periodically review and update a roster of impartial medical examiners who are certified specialists in various medical fields and who are willing to make prompt reports and be deposed as hereinafter provided . . .
(2) When any claim or complaint involving a dispute over medical issues is the subject of an appeal of a conference order pursuant to section ten A, . . . any examiner from the roster [shall be designated].
The impartial medical examiner, so agreed upon or appointed, shall examine the employee and make a report at least one week prior to the beginning of the hearing, which shall be sent to each party. No hearing shall be commenced sooner than one week after such report has been received by the parties. The report of the impartial medical examiner shall, where feasible, contain a determination of the following: (i) whether or not a disability exists, (ii) whether or not any such disability is total or partial and permanent or temporary in nature, and (iii) whether or not within a reasonable degree of medical certainty any such disability has as its major or predominant contributing cause a personal injury arising out of and in the course of the employee's employment. Such report shall also indicate the examiner's opinion as to whether or not a medical end result has been reached and what permanent impairments or losses of function have been discovered, if any. Such impartial physician's report shall constitute prima facie evidence of the matters contained herein.
Notwithstanding any general or special law to the contrary, no additional medical reports or depositions of any physicians shall be allowed by right to any party; provided, however, that the administrative judge may, on his own initiative or upon a motion by a party, authorize the submission of additional medical testimony when such judge finds that said testimony is required due to the complexity of the medical issues involved or the inadequacy of the report by the impartial medical examiner. . . .
Amended by St. 1991, c. 398, § 30.
Where additional medical testimony has not been sanctioned, even the medical records and reports relied on by the § 11A examiner himself are excluded from evidence at the hearing. Here, the judge allowed no additional medical testimony. The § 11A examiner's report was the exclusive medical evidence in the case.
Commencing on January 1, 1993 the Code of Massachusetts Regulations required a bifurcation of the § 11 hearing process. Where the report of the § 11A examiner was received by the department subsequent to the scheduled hearing date, the regulations dictated scheduling of a "medical hearing" triggered by the presiding judge. At the "medical hearing" parties would argue motions for additional medical evidence and the judge would rule on whether or not the parties would be limited to the § 11A opinion, followed by allowance of that doctor's deposition only or additional depositions if warranted. The parties on appeal do not challenge the efficacy of this hearing bifurcation process. See O'Brien v. Blue Cross/Blue Shield, 9 Mass. Workers' Comp. Rep. 16 (1944). Instead they argue where the department received the § 11A report one month after the hearing and failed to schedule a "medical hearing" before the judge decided the case, their due process rights have been violated.
In pertinent part the regulation reads:
. . . in any hearing conducted pursuant to M.G.L.c. 152, § 11 where medical issues will be presented to an impartial physician all medical records will be marked for identification only and forwarded to the impartial physician if a M.G.L.c. 152, § 11A(2) examination has not been conducted at the time of the M.G.L.c. 152, § 11 hearing. . . . (Emphasis supplied). 452 CMR 1.11(1) (d).
In O'Brien, supra at 22, the review board held "[t]he [medical hearing bifurcated] process followed . . . turned the legislative sequence on its head. . . ."
It is axiomatic that due process requirements apply to board proceedings. Meunier's Case, 319 Mass. 421, 426-427 (1946); Haley's Case, 356 Mass. 678, 682 (1970); Stacey v. North Shore Children's Hospital, 8 Mass. Workers' Comp. Rep. 365 (1994). Due process at board proceedings translates to an entitlement to "have an opportunity to present evidence, to examine their own witnesses and to cross-examine witnesses of other parties, to know what evidence is presented against them and to an opportunity to rebut such evidence, and to argue, in person or through counsel, on the issues of fact and law involved in the hearing." Haley, supra at 681. (Emphasis supplied.)
In the case before us, failure of the judge to activate the board regulatory "medical hearing" procedure left the parties with a knowledge of the evidence against them but without any means to confront that evidence prior to issuance of the decision. We are mindful of the fact that pursuant to § 11A(2) where a judge has found neither inadequacy of the report nor complexity of the case and thus has not allowed additional medical evidence, the opinion of the § 11A examiner becomes the sole medical evidence in the case. G.L.c. 152, § 11A(2); O'Brien v. Blue Cross/Blue Shield, Supra at 23. Had the parties been afforded an opportunity to either move for additional medical evidence and/or to exercise their statutory right to depose the § 11A examiner the outcome of the case may have differed. By deciding the case without allowing the necessary evidentiary confrontation, the judge contravened the parties' fundamental due process rights.
The § 11A report once prepared is sent by the board to the parties who would then, under the regulatory procedure, reasonably await notice of the scheduled "medical hearing."
The larger looming due process issues § 11A presents have been noted in recent review board decisions and are not challenged here. O'Brien, supra (probable due process problems detailed); Scheffler v. Sentry Insurance, 7 Mass. Workers' Comp. Rep. 219, 225 n. 5 (1993); Stacey, supra at 371 n. 7.
The self-insurer advanced an employer witness who testified it had a light duty offer which would both exceed the employee's former average weekly wage and would ostensibly be within the restrictions the § 11A examiner set. The judge made no finding as to the bona fide nature of the job offer and made no determination whether or not the offer met the employee's capacity to perform work. When addressing earning capacity issues, judges must examine and make findings on both the medical and the vocational elements of the employee's capacity to work. G.L.c. 152, § 35D; Scheffler's Case, 419 Mass. 251, 256 (1994); Frennier's Case, 318 Mass. 635, 639 (1945). Here the judge made no vocational findings.
Thus, we find the decision's failure to address the job offer and other vocational issues and its issuance depriving the parties' due process right to confront the medical evidence renders the decision contrary to law. G.L.c. 152, § 11C. Further, commensurate with O'Brien v. Blue Cross/Blue Shield, supra, we vacate the decision and order the administrative judge to allow the parties to move for additional medical evidence pursuant to § 11A(2) and/or to seek authorization to depose the medical examiner with a § 11 hearing to follow as statutorily required if requested by the parties.
So ordered.
Judges Kirby and Smith concur.