Opinion
BOARD No. 00333991
Filed: December __, 1997
REVIEWING BOARD DECISION
(Judges Maze-Rothstein, McCarthy and Smith)
APPEARANCES
Timothy Payton, pro se on appeal.
Mark G. Morisi, Esq., for the employee at the hearing.
Alec E. Cybulski, Esq., for the insurer.
This is an employee's appeal pro se from a decision which denied his claim for further benefits, authorized the discontinuance of his § 35 partial incapacity benefits, and denied him § 30 medical benefits. Because we find the requirement to show a "worsening" of his medical condition after an unappealed conference order is contrary to law, we reverse the decision and remand it for further findings consistent with this opinion.
As Timothy Payton pushed a large bale up an incline at work on January 17, 1991, it dropped and in attempting to catch it, he injured his back. (Dec. 3; Tr. 10-11.) Over the next few weeks, the pain increased. He also got neck pain, headaches and leg pain. (Dec. 3.) His symptoms continued throughout 1991 and 1992. Id. After conservative treatment from April 1993 to February 1994, his headaches and neck pain improved, while his back pain made only slight progress. Id. In July 1993, the employee was involved in a motor vehicle accident which he testified aggravated his back and neck pain for approximately two months. Id. At the hearing, the employee stated that his back pain persisted and his neck pain and headaches had returned. (Dec. 4.)
The insurer accepted the case and paid § 34 weekly temporary total incapacity benefits. Following a § 10A conference on the insurer's request to discontinue, an order issued on February 7, 1992 modifying the employee's entitlement from § 34 temporary total weekly benefits to continuing § 35 partial incapacity weekly benefits. His appeal from that conference order was never perfected. He then filed a new claim to reinstate § 34 benefits from February 7, 1992 and continuing, which, following a conference, was denied on December 3, 1993 by the administrative judge who presided at the subsequent hearing. The 1992 conference order had been filed by a different judge. The employee appealed to a hearing de novo at which time he sought § 34 benefits from February 7, 1992 to April 19, 1994 and § 35 benefits thereafter. See Exhibit 1. But see (Tr. 9-10.)
A physician examined the employee on April 19, 1994 pursuant to the provisions of § 11A. The judge found the doctor's report inadequate as to the time period before his examination and allowed the submission of additional medical evidence for the purpose of addressing medical disability prior to that date. (Dec. 2; see Exhibits 5, 6, 8 (Andler, Jurado, Spear reports).
Section 11A(2) provides in pertinent part:
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 of the inadequacy of the report submitted by the impartial medical examiner.
See George v. Chelsea Hous. Auth., 10 Mass. Workers' Comp. Rep. 22 (1996) (for circumstances where additional medical evidence is required as a matter of law for a disputed period prior to the § 11A examination, known as a "gap" period).
We note that after allowing additional medical evidence for this purpose, the judge neither adopted any of the physicians' opinions nor made any incapacity findings to address the prior time frame.
The § 11A doctor opined that as of the date of his examination, the employee's lumbar and cervical strains had resolved. (Dec. 4.) He recommended work-hardening with a 35 pound lifting restriction for the first 30 days after any return to work. Id. The doctor did not find continuing chiropractic treatment reasonable. Id.
Adopting the § 11A medical opinion and finding no significant "worsening" in the employee's condition after the 1992 unappealed conference order, the judge denied the claim for further weekly or medical benefits and authorized discontinuance of the § 35 benefits as of May 19, 1994, one month after the § 11A exam. (Dec. 5.) The employee appeals.
A failure to perfect a timely appeal from a conference order constitutes its acceptance. G.L.c. 152, § 10(3). However, the statutory directive only binds the parties to matters it covers. An employee is free to claim additional benefits beyond a period established by such an order and said claim must receive de novo treatment. Russo v. OCAJ Chief Admin. Justice, 11 Mass. Workers' Comp. Rep. 152, 154 (1997). A conference order cannot reach beyond its own terms. Hendricks v. Federal Express, 10 Mass. Workers' Comp. Rep. 660, 661 (1996).
Section 10A(3) states in pertinent part "[f]ailure to file a timely appeal . . . [of a conference order] . . . shall be deemed to be acceptance of the administrative judge's order and findings . . . ." G.L.c. 152, § 10A(3).
In this case, the judge erred in requiring the employee to prove that his condition worsened after the unappealed conference order to qualify for compensation. See Hendricks, supra at 662; Gaetani v. Flours Constructors Inc., 7 Mass. Workers' Comp. Rep. 384, 386 (1993); see also Foley's Case, 358 Mass. 230 (1970); Pernorio v. ARA Smith Transfer, 8 Mass. Workers' Comp. Rep. 304, 305 (1994). Here, the § 10A conference order was conclusory and the proceeding itself was not held to the rules of evidence. It thus, contained no "findings" on the extent of incapacity from which a "worsened" medical condition could be determined. Compare 452 Code. Mass. Regs. 1.10(1) with 1.11(5) (conferences are "informal" and "not . . . subject to the rules of evidence" while hearing decisions are "based solely on the evidence introduced at hearing.") We have not applied a worsening standard to later claims for further benefits after unappealed conference orders. Russo, supra at 154;Hendricks, supra at 662-663 (distinguishing between the preclusive effects of conference order and hearing decision). Upon review of the February 7, 1992 conference order, we cannot discern what the contended condition was then, so there is no way to determine how or whether the condition "worsened". Thus, the employee cannot be required to establish worsening to prove entitlement to further benefits.
Accordingly, we reverse the decision because the denial of compensation was contrary to law. We recommit for a determination of the extent of incapacity subsequent to February 7, 1992. The judge shall also reconsider his denial of § 30 medical benefits for the accepted industrial injury. See Guevera v. Unicco Serv. Co., 11 Mass. Workers' Comp. Rep. 257, 259 (1997) (entitlement to health care services may exist even where no incapacity).
Due to the passage of time and in the interest of justice, the judge may take whatever further evidence he deems necessary to aid in his appraisal.
So ordered
________________________ Susan Maze-Rothstein Administrative Law Judge
________________________ William A. McCarthy Administrative Law Judge
________________________ Suzanne E. K. Smith Administrative Law Judge
Filed: December __, 1997