McCARTHY, J.

Robinson Ruiz injured his back on September 10, 1990 while lifting a compressor in the course of his employment as a sand blaster and painter. (Dec. 5.) The insurer accepted the case and paid weekly incapacity benefits under § 34 at the rate of $452.64 based on an average weekly wage of $678.95. (Dec. 3.) Thirty-seven months after the industrial injury, the insurer filed a complaint to modify the employee's weekly benefits. (Dec. 4.) Following a conference on the complaint to modify, an administrative judge denied the request and an appeal by the insurer brought the claim back to the same administrative judge for a full evidentiary hearing. (Dec. 4.) The hearing record includes the report of a § 11A examination together with a deposition of that doctor. No other medical reports or opinions were before the hearing judge although the employee filed a Motion to Authorize Additional Medical Testimony. (Dec. 3.)

The § 11A examination was conducted by Dr. W.J. Cater on May 10, 1994. (Dec. 5.) In his report, Dr. Cater opined that the employee had sustained a low back sprain which had resolved by the time of his examination. The doctor found no objective evidence of a disc herniation referenced in the employee's medical reports. Dr. Cater believed that the employee had reached a medical end result and could return to full duty work. (Dec. 6; Impartial report 3.) In the course of his deposition, Dr. Cater stated that he disagreed with the insurer's medical expert, Dr. Kermond, that the employee suffered from a 20% permanent partial impairment of his back. (Impartial Dep. 40.) The hearing judge determined that the impartial report was adequate (Dec. 3); thus no other medical evidence was allowed into evidence.

Based on the prima facie opinion of Dr. Cater, the judge concluded that the employee suffered from no physical limitations on his activities and was capable of returning to gainful employment as of May 10, 1994, the date of the impartial examination. The judge authorized the insurer to discontinue payment of weekly incapacity benefits as of that date. (Dec. 7-8.) We have the case on appeal by the employee.

One issue raised by the appellant in his brief is noteworthy. The employee contends that the judge failed to address ". . . the questions of bias of the impartial physician and his failure to integrate the medical records submitted to him." (Appellant's brief 3.) While we see no evidence of bias, the failure to use the medical reports to fix the parameters of the medical dispute raises some troubling questions.

The addition of § 11A to c. 152 drastically changed the method of resolving disputed medical issues. Prior to the 1991 enactment of § 11A, the disputants developed and presented medical opinions in support of their respective positions. This traditional adverserial technique, known in some quarters as the "dueling doctors" approach, was largely eliminated by G.L.c. 152, § 11A which states in pertinent part:

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, the parties shall agree upon an impartial medical examiner from the roster to examiner the employee and submit such choice to the administrative judge assigned to the case within ten calendar days of filing the appeal, or said administrative judge shall appoint such examiner from the roster. (emphasis added).

Commonly, "dispute[s] over medical issues" involve the causal connection between the claimed medical disability and the industrial injury, the duration and extent of such disability, which includes questions of impairment, such as "whether the employee can lift objects over a certain weight, stand for prolonged periods, drive an automobile or operate mechanical equipment, or engage in other activities that would be required at work." Scheffler's Case, 419 Mass. 251, 257, n. 3 (1994).

Conflicting medical opinions only enter the hearing record after a finding by the administrative judge that the § 11A medical report is inadequate or the medical picture complex. A different situation obtains at conciliation and conference however. At these first two steps in the dispute resolution process the litigants must buttress their positions with medical reports. The employee seeking weekly incapacity benefits must provide a supportive medical opinion at conciliation and conference. Similarly, an insurer seeking to terminate or modify weekly benefits must provide appropriate medical reports.

In the case before us, the insurer had such a report when it embarked on its effort to reduce the employee's weekly incapacity benefits. The report which the insurer relied upon at conciliation and conference was from Dr. Kermond who opined that the employee suffered from a partial disability causally related to the industrial injury. Dr. Kermond felt that the employee was capable of modified work. He did not release him to return to his former work or to full work activity. For his part, Mr. Ruiz had reports from his attending physician which included the opinion that he continued to be totally medically disabled from work.

As pointed out above, a § 11A exam is appropriate when there is a dispute over medical issues. § 11A(2) provides that:

The report of the impartial examiner shall, where feasible, contain a determination of the following: (i) whether or not a disability exits, (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 cause a personal injury arising out of and in the course of the employee's employment.

The dispute in the case at hand was only over subpart (ii): the extent of medical disability. The insurer's expert believed the medical disability was partial, whereas the employee's expert felt it to be total. Both medical experts thought the employee was medically disabled, and that the disability was causally related to the industrial injury; thus § 11A(2)(i) and (iii) were not in issue. Going into the hearing and before the § 11A impartial report was introduced, there was agreement on everything except the extent of Mr. Ruiz's medical disability.

Although the § 11A examiner had these conflicting reports before him when he examined the employee, he nevertheless concluded, pursuant to § 11A(2)(i), that the employee suffered from no medical disability whatsoever! This opinion fell outside the boundaries of the "dispute over medical issues" in this case. While we recognize the Legislature's intention in § 11A(2) to "minimize situations where `dueling doctors' present conflicting medical evidence concerning . . . the degree of disability[,]"Scheffler, supra at 257, the outcome here went awry when the § 11A examiner offered an opinion which stepped outside the boundaries of the medical dispute framed earlier. The result was a widening of the medical conflict, not a narrowing of those issues. This is antithetical to a reasonable implementation of the statute. Accord, Franco v. Winston's Restaurant, 10 Mass. Workers' Comp. Rep. 645, 647-648 (1996) (issue of initial causal relation is not a subject for § 11A medical opinion in an accepted liability case). Our system of dispute resolution is out of focus — and will harm employees as well as insurers — if we allow it to broaden rather than narrow areas of disagreement and increase rather than decrease the unpredictably of outcome in a case.

We cannot tell from the record exactly what instructions were given to the § 11A medical examiner. If there is to be any stability and predictability at hearing, the § 11A examiner should be told exactly what is in dispute and his opinion, if it is to be found adequate, should fall somewhere within the extremes of the conflicting opinions. This said, we recognize that medical conditions are dynamic and passage of time will render earlier opinions obsolete in certain cases. Nevertheless, the "medical dispute" must be identified at some point in the dispute resolution process. We must assume that the legislature positioned the § 11A exam at step three of the dispute resolution process advisedly. By placing the exam later rather than earlier, the legislature left it to the parties to develop the nature and extent of the medical dispute.

In the case before us, there is no record suggestion that the medical condition had changed. The § 11A examiner based his disagreement with the two opposing doctors, whose reports he reviewed, largely on his differing view of the objective diagnostic testing, rather than the passage of time. (Impartial Deposition 33-36.)

There is nothing in the record which suggests that it was the hearing judge who selected the § 11A examiner. Neither can we tell what instructions were given to that physician. However, the record does disclose that the employee filed a Motion to Authorize Additional Medical Testimony. Given the circumstances of this case we think the judge erred as a matter of law when he failed to allow this Motion. In so holding, we are mindful of what the Supreme Judicial Court said in O'Brien's Case, 424 Mass. 16 (1996):

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.

Id. at 22-23. Where the § 11A opinion went in one direction andall the underlying medical reports and records went in another, and the employee requested permission to introduce additional medical evidence, the hearing judge should have opened the case. Because the judge failed to do so, we reverse his decision. As the judge who heard and decided this case no longer serves as such, we request the senior judge to assign the case to a different administrative judge. During the pendency of the new hearing, the earlier conference order denying termination of weekly benefits is reinstated. The insurer is directed to resume payment of weekly temporary total incapacity benefits as of the date of this decision.

So ordered.

__________________________ William A. McCarthy Administrative Law Judge

__________________________ Susan Maze-Rothstein Administrative Law Judge

Filed: July 25, 1997