Summary
In Safford,supra, the reviewing board held that where impartial medical examiner needed more information to render an opinion on causation, the impartial report was inadequate as a matter of law.
Summary of this case from Biasin v. Michael's Restaurant, NoOpinion
BOARD Nos. 07648391, 07676891
Filed: April 1, 1996
REVIEWING BOARD DECISION
(Judges Maze-Rothstein, Smith and Kirby)
APPEARANCES
Linda J. McGrail, Esq., for the employee at hearing and on brief
Peter McElroy, Esq., for the insurer at hearing Public Service Mutual
Kimberly Crear, Esq., for MASSWEST NAHRO Worker's Comp. Group Trust.
The employee appeals from a decision that modified her benefits to partial incapacity compensation. The decision to decrease her ongoing benefits was made in reliance on the opinion of a § 11A physician. She asserts that the denial of her motion to allow additional medical evidence, because of the inadequacy of the § 11A report, was an abuse of discretion and violated her constitutional right to due process. She further contends that the designated date for her earning capacity assignment is without evidentiary support. We need not address the latter contention because we vacate the decision by reason of the improper ruling on the § 11A report. Finding error in the judge's denial of the employee's motion, we vacate and remand for the submission of additional medical evidence.
General Laws chapter 152, § 11A gives an impartial medical examiner's report the effect of "prima facie evidence with regard to the medical issues contained therein," and expressly prohibits the introduction of other material evidence to rebut the prima facie evidence in the impartial medical examiner's report unless the judge finds that additional medical testimony is required due to the complexity of the medical issue involved or the inadequacy of the report. O'Brien v. Blue Cross/Blue Shield, 9 Mass. Workers' Comp. Rep. 16 (1995), appeal docketed, No. 07058 (SJC October 30, 1995).
We summarize the pertinent facts as found by the administrative judge. (Dec. 3-6.) The employee worked for the Worcester Housing Authority as a maintenance clerk where she was required to write log entries for hours at a time. Beginning in or about July 1991, she developed calluses on her right major hand for which she sought treatment on December 6, 1991. From July 1992 onward, she received continuous treatment for problems with her right hand. On April 6, 1993, the employee stopped working due to her right hand condition then characterized by swelling, tremors, pain and a general lack of control.
She filed a claim for benefits against the Massachusetts NAHRO Worker's Group Trust (hereinafter, NAHRO) for an April 5, 1993 injury. Prior to the § 10A conference, the judge allowed joinder of Public Service Mutual, to accommodate a December 6, 1991 or July 1992 alternate injury date when that insurer was on the risk. As a result of the conference on both claims, the judge dismissed Public Service Mutual and ordered NAHRO to pay § 34 temporary total compensation from the January 19, 1994 conference date, and continuing at the rate of $195.81 per week. The employee appealed as to both insurers. NAHRO cross appealed the order.
Dr. Robert Levine, a neurologist, examined the employee on March 22, 1994 pursuant to § 11A. (Ex. 1.) His deposition was conducted on July 27, 1994.
The employee filed a motion requesting additional medical evidence. She argued that the § 11A report was inadequate due to the doctor's unwillingness to formulate his own independent diagnosis. The judge, however, denied the motion and ruled the report adequate because, in his estimation, the doctor did offer an opinion on disability and causal relationship. (Dec. 3.)
In the hearing decision, the employee was found to have sustained a hand injury causally related to her employment at the Worcester Housing Authority, beginning in 1991 and culminating in a partial disability that commenced on her last day of work, April 5, 1993. (Dec. 5.) The judge noted that Dr. Levine "declined to make his own diagnosis, based upon his [Dr. Levine's] review of the medical records . . . [but he]was prepared to assume there were objective showings to support the diagnosis made by others". (Dec. 5.) The judge adopted Dr. Levine's opinion and found that the employee has a permanent partial impediment to any prolonged performance of right handed fine motor movements.
In the decision from April 6, 1993 onward, NAHRO was ordered to pay $75.75 in weekly § 35 partial incapacity compensation based on a $326.20 average weekly wage and on a $200.00 weekly earning capacity assignment. NAHRO was also authorized to receive credit for the § 34 benefits paid pursuant to the January 19, 1994 conference order, occasioned by the § 35 reduction and also by any unemployment benefits received. (Dec. 6.) He dismissed the claim against Public Service Mutual. The employee appeals from this decision. Id.
General Laws c. 152, § 11A(2) provides in pertinent part:
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.
G.L.c. 152, § 11A(2) (St. 1991, c. 398, § 30).
Failure to address any one of the § 11A(2)(i)-(iii) factors, where it is feasible to do so, renders a § 11A opinion inadequate. Lebrun v.Century Markets, 9 Mass. Worker's Comp. Rep. ___ (November 28, 1995). Section 11A must be applied so that it does not detract from a judge's ability to reach a fair and just conclusion. Procedures must "further the accuracy" of a judge's determinations on the "pivotal contested issues or else serious due process problems arise." Lebrun, supra, citing Aime v.Commonwealth, 414 Mass. 667. 682 (1993). The § 11A examiner's opinion is deficient under the foregoing law.
In this case, the doctor felt that, based on the available information, he could not render a diagnosis or causation opinion. In his March 22, 1994 report, Dr. Levine stated that his diagnosis was a "[p]ossible focal writer's cramp" and that if "the diagnosis is substantiated by the EMG, it would be my opinion that there is, in part, a causal relationship between her writer's cramp and her work with extensive writing that began May 1990". (Ex. 1.) However, the doctor did not have the October 5, 1993 EMG report that he believed was "critical to [his] assessment." (Statutory Ex. 1.)
Nor was the problem in the § 11A report cured later. In Dr. Levine's July 27, 1994 deposition, he stated that his review of the EMG results, performed in conjunction with a treatment that could mask the condition, proved unrevealing. And because he had neither first hand clinical nor EMG confirmation, he was unable to diagnose the employee's condition. (Dep. 14-15, 24, 25.) He testified that he needed more information to determine whether the employee suffered from writer's cramp and with the information he had, he could not support that diagnosis nor could he rule it out. (Dep. 18, 24.) Furthermore, Dr. Levine could not render an opinion on causal relationship. (Dep. 15.) Moreover, he testified that his practice as a neurologist primarily focused on a subspecialty called nero-otology related to hearing and balance and that it was the employee's treating physician, Dr. Ravin — not he, who had expertise in hand movement disorders. (Dep. 4, 14.)
As the § 11A examiner could neither diagnose nor form an opinion on whether there was a causal relationship of the contested medical condition, we find as a matter of law that the requirements of § 11A(2)(i-iii) are not satisfied. Further, under the circumstances of this case, the failure to allow additional medical evidence effectively denied the employee any meaningful opportunity to be heard on the determinative issue of causation raising significant and troubling questions of due process. Finally, the judge's finding that Dr. Levine rendered an adequate opinion on causation is entirely without support in the record. We therefore conclude that the judge abused his discretion in not granting the employee's motion for the submission of additional medical evidence.
This ruling renders the employee's constitutional arguments moot. SeeO'Brien v. Blue Cross/Blue Shield, 9 Mass. Worker's Comp. Rep. 16 (1995), appeal docketed no. 07058 (SJC October 30, 1995). Notwithstanding the repeated position taken by the reviewing board that we will leave the ultimate question of a constitutional infirmity in § 11A to the courts, the concurrence glosses over the issues outlined in O'Brien, to reach her own favorable conclusion in that regard. Id. at 22-26. Somewhat paradoxically the concurrence makes one noteworthy point. We agree that where the statute mandates exclusion of expert opinion evidence and where the bearer of the burden of proof is prohibited from meeting it by the only medical opinion statutorily allowed into evidence, then serious due process problems arise. When that occurs, the "safety valve" of the allowance of additional medical evidence may protect due process rights. Thus, while an adjudicator may assure due process rights by allowing or requiring additional medical evidence and could also thereby enhance his chances of accurate decision making, the disallowance of additional medical evidence can have quite the opposite effect. See O'Brien, supra; Kaminsky v. Univ. of Mass., 9 Mass. Workers' Comp. Rep. ___ (October 31, 1995); Mendez v. The Foxboro Co., 9 Mass. Workers' Comp. Rep. ___ (October 31, 1995);Lebrun v. Century Markets, 9 Mass. Workers' Comp. Rep. ___ (November 28, 1995); Kirohn v. Parker-Danner Co., 10 Mass. Workers' Comp. Rep. ___, (January 31, 1996). This approach, however, does not lay to rest the other constitutional issues raised in connection with § 11A.
Accordingly, as we find the § 11A opinion inadequate, we vacate and remand for further proceedings consistent with this opinion. On remand, the judge shall allow the parties to introduce additional medical evidence.
So ordered.
______________________ Susan Maze-Rothstein Administrative Law Judge
_________________________ Edward P. Kirby Administrative Law Judge
Filed: April 1, 1996
The employee here raises a facial attack on the constitutionality of G.L.c. 152, § 11A, not rendered moot by the majority opinion because the majority opinion addresses and does not "lay to rest" the constitutional issues discussed in O'Brien v. Blue Cross/Blue Shield, 9 Mass. Worker's Comp. Rep. 16 (1995), appeal docketed, No 07058 (SJC October 30, 1995). In addition, the opinion appears to compel additional medical evidence whenever the § 11A(2) impartial medical examiner's report fails to address any one of the § 11A(2)(i)-(iii) factors or is otherwise found to be inadequate or the case medically complex — even though the "missing" information may be undisputed or irrelevant because the issues in dispute are non-medical. Therefore, I concur rather than join in the opinion. I agree with the majority that the judge was required here to utilize one of the constitutional safety valves in § 11A(2) and permit additional medical evidence.
Well-established rules govern constitutional analysis and provide our authority to address constitutional questions, recognizing that the ultimate decision on such questions is for the constitutional courts. SeeBoard of Selectmen v. Framingham Civil Service Commission, 366 Mass. 547 (1974); Samuels Pharmacy, Inc. v. Board of Registration in Pharmacy, 390 Mass. 583 (1983), quoted in O'Brien, 9 Mass. Workers' Comp. at 24.
Every legislative act comes before the Reviewing Board surrounded with the presumption of constitutionality. That presumption continues until the act under review clearly appears to contravene some constitutional provision. All doubts of invalidity must be resolved in favor of the law. It is not our province to weigh the desirability of social or economic policy underlying the statute or to question its wisdom; these are purely legislative matters. Tobin v. Town of Stoughton, 9 Mass. Workers' Comp. Rep. 118, 123-124 (1994), appeal docketed, No. 95-J-292 (Mass.App.Ct. May 19, 1995), referred by single justice to full panel, No. 95-P-2033 (Mass.App.Ct. November 27, 1995). Therefore the due process analysis must begin with the presumption that G.L.c. 152, § 11A is facially constitutional.
The balancing test required in due process analysis is set forth inCare and Protection of Rebecca, 419 Mass. 67, 77 (1994), quoting Matthews v. Eldridge, 424 U.S. 319, 335 (1976). It requires the balancing of three factors:
(1) 'the private interest that will be affected by the official action'; (2) 'the risk of an erroneous deprivation of such interest through the procedures used, and the probable value, if any, of additional or substitute procedural safeguards'; and (3) 'the Government's interest, including the function involved and the fiscal and administrative burdens that the additional or substitute procedural requirement would entail.' Care and Protection of Robert, 408 Mass. 52, 59 (1990).
Care and Protection of Rebecca, 419 Mass. at 77.
The legislative history of § 11A demonstrates that the 1991 legislature struggled with balancing these competing interests. For a legislative history, see the appendix to the concurrence in Hammond v. Merit Rating Board, 9 Mass. Workers' Comp. Rep. ___, slip op. at 13 et seq. (December 6, 1995).
Section 11A of c. 152 contains safety valves to protect the litigants' constitutional rights to due process. Not only do the parties have the opportunity to submit to the impartial medical examiner "all relevant medical records, medical reports, medical histories, and any other relevant information requested", they are permitted to cross-examine the impartial medical examiner. G.L.c. 152, § 11A(2). In addition, the statute permits the administrative judge "on his own initiative or upon a motion by a party, [to] 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 submitted by the impartial medical examiner." Id.
Section 11A allows all parties to be fully apprised of the medical evidence to be submitted or considered, gives an opportunity for cross-examination and documents inspection, and permits the parties to offer evidence in explanation or rebuttal through the timing of the lay hearing after receipt of the impartial report and through the allowance of additional medical evidence. The statutory procedures provide an adequate opportunity for the litigants to protect and enforce their rights under the workers' compensation act. Compare O'Brien, supra (concerns about the facial due process flaws of § 11A). Section 11A facially satisfies the fundamental requisite of due process: the opportunity to be heard at a meaningful time and in a meaningful manner. See In the Matter of Kenney, 399 Mass. 431, 435 (1987) (attorney disciplinary proceeding); Tedford v.Massachusetts Housing Finance Agency, 390 Mass. 688 (1984) (adjudicatory hearing not required for rent increase).
Satisfaction with facial validity does not dispose of the case. We then must determine the subsidiary constitutional question: Under the particular facts of this case, was the employee denied procedural due process when she was not permitted to submit additional medical evidence? I agree with the employee that she was.
The § 11A impartial medical examiner was unable to render an opinion on essential elements of proof in the employee's case. Because the issues required expert medical opinion evidence, the employee when barred from offering additional medical evidence was deprived of any meaningful opportunity to present her case. Although the statutory language of § 11A regarding motions for additional medical evidence vests discretion in the administrative judge, under the unique factual circumstances of this case, the judge was compelled by constitutional law to permit additional medical evidence. He erred in denying the employee's motion.
Section 11A(2) does not require additional medical evidence in every case where the impartial medical examiner's report fails to address any one of the § 11A(2)(i)-(iii) factors and it is feasible to do so. The statute provides that, where a report is inadequate or the case medically complex, the judge "may" authorize additional medical evidence, not that he "shall".
________________________ Suzanne E.K. Smith Administrative Law Judge