Opinion
BOARD No. 06124391
Filed: May 21, 1998
REVIEWING BOARD DECISION
(Judges McCarthy, Maze-Rothstein and Smith).
APPEARANCES
Robert J. Danie, Esq., for the employee.
David M. O'Connor, Esq., for the insurer.
David F. Poggi had been employed as the assistant manager of the Ground Round restaurant in West Springfield Massachusetts for about one year when, on the evening of November 5, 1991, while in the course of his employment, Poggi slipped on a wet carpet and injured his left lower extremity. The insurer accepted the case as compensable and paid weekly temporary total incapacity benefits under § 34 of the Act.
On February 17, 1993 the insurer filed a complaint for reduction or discontinuance of weekly incapacity benefits. An earlier claim for specific benefits under § 36 filed by the employee came on for a conference before an administrative judge on March 18, 1993. On that date the judge granted the insurer's motion to join the two proceedings. (Dec. 1.) On March 26, 1993, an order issued directing payment of § 36 for permanent loss of function in the amount of $7,652.89. The judge also ordered a reduction in weekly benefits from § 34 to partial incapacity benefits under § 35. The employee appealed this order. There was no appeal by insurer.
At the full evidentiary hearing on May 19, 1993, the insurer called upon the employee to prove incapacity and the extent thereof, causal relationship and entitlement to specific benefits under § 36 (Dec 2; Tr. 3.) On April 15, 1994, nearly eleven months after the evidentiary hearing, an impartial examination was conducted by Dr. Cyril E. Shea, Jr., M.D., an orthopedic surgeon. Doctor Shea diagnosed Mr. Poggi's condition as a "muscular strain of the left quadriceps muscle complicated by deep abscess." (Dec. 6.) The judge took note of Dr. Shea's opinion that the employee was no longer medically disabled, suffered no residual physical limitations from the injury and had "long since passed medical end result." (Dec. 6.) On August 24, 1994, the employee moved for leave to depose his treating physician and to strike the impartial physician's report. On September 19, 1994, the judge denied employee's motion and at the same time authorized the deposition of the impartial physician.
The written ruling on employee's motion stated:
"The report of the Impartial Examiner has not been shown inadequate, nor are the medical issues so complex that additional expert testimony is warranted under Section 11A. The employee is authorized to cross-examine Doctor Shea by way of deposition. The transcript is due November 18, 1994. The record will remain open until December 2, 1994 for the submission of briefs and additional motions with regard to the impartial report. Should the deposition provide additional grounds for a finding of inadequacy or complexity, I will consider those upon written motion of either party."
The June 26, 1995, decision directed total discontinuance of weekly benefits retroactive to March 18, 1993, the date of the conference, and denied the claim for specific benefits. The judge found that, "[t]he employee has not established any incapacity from employment on or after the date the insurer moved to discontinue his benefits, March 18, 1993." (Dec. 7.) The twenty seven-month retroactive termination of weekly benefits created a significant overpayment which the insurer was authorized to recoup. We have the case on appeal by the employee.
The first of several issues raised by Mr. Poggi is dispositive of this appeal. Poggi argues that positioning the hearing before the § 11A impartial examination violated the express provisions of § 11A. The employee further contends that the delay of eleven months between the hearing and the impartial examination was inordinate and the only remedy is to reverse the judge's decision and remand the case for a new hearing before a different judge. For reasons which follow, we reverse the decision.
In the years immediately following the 1991 reform of c. 152, the common practice was to hold the hearing first and then schedule the impartial medical examination. This was administratively necessary during that time while efforts were made to develop a list of impartial medical examiners. This practice found support in a regulation, i.e. 452 CMR 1.11 (1)(d). Notwithstanding the administrative problem, it was crystal clear that the statute required that the medical examination take place before the hearing.
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. Section 11A.
Placing the hearing before the § 11A exam was first challenged in O'Brien v. Blue Cross/Blue Shield, 9 Mass. Workers Comp. Rep. 16. (1995). There we refused to apply the above cited regulation as being inconsistent with the clear language of § 11A of the Act. We determined that we could not remedy the damage done by the juxtaposition of medical examination and hearing by simply vacating the decision and recommitting to the same judge with instructions to start the process all over again. We also took pains to point out that we would not reverse the decision and order a new hearing in every instance where the impartial exam took place after the hearing. "To the contrary, unless fairness dictates otherwise, we will attempt to preserve as much of the adjudicatory process as possible." O'Brien supra, fn 7 at pg 22. O'Brien reached the Supreme Court and in the course of rejecting a facial challenge to the constitutionality of § 11A, the court spoke of the role of the reviewing board. O'Brien's Case, 424 Mass. 16, 22 (1996). While discussing an employee's qualified right to present medical testimony of his own choosing, the court said:
In the appeal before us, the hearing took place in May 1993 and the § 11A exam in April 1994. O'Brien, which upset the regular procedure of holding the hearing before the § 11A exam, was not decided until January 1995. While it would have been preferable if the employee had objected to going to hearing before exam, his failure to do so in light of the common practice at that time is understandable. "It is clear that the board, in its discretion, may pass on issues not previously argued before an administrative judge." Phillips's Case, 41 Mass. App. Ct. 612, 618-619 and cases cited therein.
We know of no rule of due process that gives a party such an unrestricted right [to present medical testimony of his own choosing] in an administrative proceeding even in the face of testimony deemed wholly sufficient to present fairly the issue in controversy. Furthermore, § 11C allows an appeal to the reviewing board, which shall reverse the decision of the administrative judge if it is "arbitrary, capricious or contrary to law." The reviewing board may also, "when appropriate, recommit a case before it to an administrative judge for further findings of fact." Certainly a decision by the 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. In any case where these procedures still failed to offer a party an opportunity to present testimony necessary to present fairly the medical issues, there then might well be failure of due process as applied in that case.
Where the only medical opinion in this case was not even in existence until eleven months after the hearing, we think the employee has been deprived of an opportunity to "present fairly the medical issues." When the employee testified, he could not know what his medical condition or complaints might be eleven months later. There was no possible way to anticipate the § 11A opinion and respond to it in his own testimony. See Biasin v. Michael's Restaurant, 10 Mass. Workers' Comp. Rep. 543, 546-547 (1996) (where medical examination took place after the lay hearing, insurer had no opportunity to cross-examine the employee with regard to basis of medical opinion, and recommittal appropriate for proper sequence to be followed).
When the judge retroactively discontinued weekly partial incapacity benefits, he chose a date which is without medical support. The judge determined that the employee had not "established any incapacity from employment on or after that date." (Dec. 7.) While the hearing is a de novo proceeding, some information supporting incapacity must have been presented at conference because the conference order directed the insurer to continue to pay weekly partial incapacity benefits. More to the point, the § 11A examiner did not fix a date for his opinion that the employee was no longer medically disabled. He simply wrote that the employee had "long since passed medical end result."
When § 11A was enacted as the norm for resolving medical disputes we do not believe it was intended to replace or even diminish the beneficent design and humanitarian purposes of the Act. The courts continue to recognize, ". . . the importance of affording a workers' compensation claimant the opportunity fairly to present the medical issues he considers favorable to his claim." Coggin's Case, 42 Mass. App. Ct. 584, 589 (1997). Had the § 11A examination taken place in the sequence prescribed by the statute rather than eleven months after the hearing, the employee would at least have known that there was an adverse medical opinion to confront. The lack of a date when medical disability ended created a period of time for which there is no expert opinion on medical disability.
In the circumstances of this case we conclude that the employee was deprived of the opportunity to fairly present his case. We therefore reverse the hearing judge's decision and return the file to the senior judge for assignment to the same judge for hearing de novo on the employee's appeal of the conference order.
So ordered.
_____________________ William A. McCarthy Administrative Law Judge
_____________________ Susan Maze-Rothstein Administrative Law Judge
FILED: May 21, 1998
Due process only requires that the parties be given a fair opportunity to present their case. It does not allow a litigant to sleep on his rights and then upset the ensuing judgement once he is awakened by an adverse decision. The employee has the burden of establishing the nature and extent of incapacity during the period of contested incapacity. By appealing the conference order of modification, the employee placed in dispute the extent of his ongoing incapacity from the conference date, March 26, 1993. The judge explicitly found that the employee had not established any causally related incapacity from the date the complaint for discontinuance was filed, February 19, 1993. That finding was rationally based on the impartial medical examiner's opinion.
The work injury was to the employee's left leg. (Dec. 4.) The employee testified about heart problems that he said a doctor might determine were related to his work injury. (Tr. 35.) The impartial medical examiner opined that the heart problems were unrelated to the work injury. (DIA Ex. 1, at 4.) Although provided the opportunity to elicit medical evidence on the causation issue through the impartial medical examiner's deposition, he failed to do so. The judge explicitly found that the employee was not working during the claim period because of his unrelated congestive heart failure. (Dec. 5, 6.)
The reviewing board has ruled that a § 11A timing violation must be raised before the administrative judge in order to preserve the issue for appellate review. Marino v. Brandeis University, 10 Mass. Workers' Comp. Rep. 448, 449 (1996); Maxey v. Grand East Corporation, 10 Mass. Workers' Comp. Rep. 435, 436 (1996). Here, the employee failed to object to the hearing being held and did not request an additional hearing after the impartial report was received. The judge took the lay testimony de bene, reserving the parties' rights to further evidence. (Tr. 7.) The employee did not request any. Following our clear precedent, the issue must be deemed waived.
The majority aptly describes the practical necessity of such a rule.
Furthermore, we need not decide a procedural irregularity issue unless a litigant shows that he was prejudiced by it. See Amherst-Pelham Regional School Comm. V. Depart of Educ., 376 Mass. 480, 496-498 (1978). Here, the employee has not shown that he was prejudiced by the timing irregularity. He was permitted to depose the impartial physician and then renew his motion for permission to submit additional evidence. (Tr. 7-9, 89; see n. 1, supra.) He did not avail himself of that opportunity. Instead he merely requested that the judge affirm his conference order. (Employee's Closing Brief, at 2.) His lay testimony could not have changed the result in the case. The outcome was driven by the impartial expert medical causation opinion, which he failed to cross-examine.
Section 11A was enacted to eliminate squeeze out costs and eliminate delays. O'Brien's Case, 424 Mass. 16, 20 (1996). By controlling the use of dueling medical witnesses, § 11A reduced the full adjudicatory process that had been previously provided. Id. at 20-22. Nevertheless deposition and cross-examination were preserved, enabling litigants to inquire into the basis of any unfavorable conclusion by the impartial medical examiner and in this way bring questions of inadequacy and complexity to the administrative judge's attention. Id. at 23. The purpose of § 11A, the elimination of costs and unnecessary delays, is frustrated by a ruling that requires multiple medical witnesses without any showing of the necessity for them. Where the full impartial process, including deposition, is utilized but fails to produce evidence on an essential element of proof, we have held that procedural due process requires the allowance of additional medical evidence.George v. Chelsea Housing Auth., supra. However, that is not the situation here.
In George, the impartial doctor was asked, but could not render, an opinion about the employee's condition prior to the date of his examination. Thus the employee was truly deprived of an opportunity to present evidence on the question of his medical disability during the "gap" period between the commencement of his claim and the examination date. In contrast, here the heart causation question was simply not asked.
The employee had the burden of proving continuing causally related medical disability during the period in dispute in this proceeding, to wit: from the conference date forward. See Connolly's Case, 41 Mass. App. Ct. 35 (1996) (appeal to de novo hearing places all benefits granted at conference in jeopardy), citing Ginley's Case, 244 Mass. 346, 348 (1923). As is apparent from his testimony, the main issue in the case was not the condition of his injured left knee. Rather the issue, of which the employee was fully aware at the time of his lay testimony, see n. 3 supra, was the causal connection between his congestive heart failure and his work-related muscle strain of the left quadriceps complicated by deep abscess. The impartial physician addressed this question and clearly opined that it was unrelated. (DIA Ex. 1, at 4.) At the deposition of the impartial medical examiner, the employee could have explored this opinion. He chose not to exercise that right. The judge applied the correct burden of proof when he concluded that the employee failed to establish that he was incapacitated due to the work injury at any time after the insurer placed the extent of his incapacity in dispute. (Dec. 7);Connolly's Case, supra.
By not deposing the doctor and then pursuing the motion for additional medical evidence, the employee waived the issue of the report's adequacy. Biasin v. Michael's Restaurant, 10 Mass. Workers' Comp. Rep. 543, 545 (1996). This meager record will not support a factual conclusion that the judge abused his discretionary authority under G.L.c. 152, § 11A(2) by not sua sponte reactivating the employee's prior request or, on his own motion, requiring the submission of additional medical evidence.
In conclusion, the employee here was not deprived of any opportunity to offer his own evidence, either lay or medical. He simply failed to exercise it. Providing a second chance to litigate the case should not reward such failure. Recommittal for additional factual findings under these circumstances is not appropriate. See Taylor's Case, Mass. App. Ct., No. 97-P-264 (April 2, 1998) (recommittal-allowing reopening of the evidence-exceeded reviewing board's statutory authority).
Because the decision is not arbitrary or capricious, or contrary to law, it should be affirmed. G.L.c. 152, § 11C.
_____________________ Suzanne E.K. Smith Administrative Law Judge