Opinion
Board No. 03903791
Filed: May 20, 1996
REVIEWING BOARD DECISION
(Judges Kirby, Smith and Maze-Rothstein)
APPEARANCES:
Macky Smith, Pro Se, for the employee Richard J. Conner, Esquire, for the insurer
The insurer appeals from the decision of an administrative judge that ordered a closed period of G.L.c. 152, § 34 temporary total incapacity compensation and continuing G.L.c. 152, § 35 partial incapacity benefits. In his decision, the judge adopted part of the report of a statutory medical examiner pursuant to G.L.c. 152, § 11A, which addressed the employee's neurological condition but not his orthopedic condition. Because the decision is internally inconsistent and based in part upon evidence outside the record, we find the decision inadequate for appellate review and remand for further findings consistent with this opinion.
G.L.c. 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 medical evidence to rebut the prima facie effect of the impartial medical examiner's report unless the judge finds that additional medical testimony is required due to the complexity of the medical issues involved or the inadequacy of the report submitted by the impartial medical examiner." O'Brien v. Blue Cross/Blue Shield, 9 Mass. Workers' Comp. Rep. 16, 23 (1995), appeal docketed, No. 07038 (Sup. Jud. Ct. October 30, 1995).
The employee worked for the employer as a carpenter and as a heavy laborer. His job involved removing cabinets, floors, sinks, and other heavy fixtures. On April 17, 1991, he injured his left shoulder, neck and cervical area when a heavy cabinet weighing over sixty pounds fell on him while he was ripping out a kitchen in a demolition project. (Dec. 4-5.)
The insurer initially did not accept the case. Following a § 10A conference, the administrative judge issued an order on August 19, 1992 awarding § 35 benefits at a weekly rate of $240.66 based on an average weekly wage of $561.60 and an assigned earning capacity of $200.00. (Dec. 1.) The employee appealed the conference order.
Although represented by counsel at conference, the employee chose to proceed pro se thereafter, despite numerous admonishments by the judge to reevaluate his position and obtain legal representation because of the potential pitfalls of this course of action. (Dec. 1-2.)
Dr. Herbert Cares, a neurosurgeon, examined the employee on January 29, 1993 pursuant to the provisions of § 11A. In his report of the same date, Dr. Cares opined there was a causal connection between the employee's shoulder, neck and cervical sprain and the April 17, 1991 work injury. The doctor noted a positive EMG at C5-6, but from a neurological standpoint, he found no abnormal deficits or disability. He was unable to assess any impairment and reported that the employee had reached an end result. Dr. Cares declined to give an opinion on any orthopedic limitations or disability, stating that if there were any ". . . it would be up to orthopedic experts to so designate." [Ex. A (Cares Rep.); Dec. 7-8.)
The employee appeared pro se at the hearing on September 23, 1993. At that time, the parties stipulated to an average weekly wage of $561.60 and the occurrence of an industrial injury on April 17, 1991. (Dec. 2.) The judge allowed the insurer's motion to join its request to discontinue or modify benefits with the employee's appeal of the conference order. Id.
Prior to hearing, the judge asked whether the parties could agree to the submission of additional medical reports, but the insurer was opposed (Dec. 3), and during the hearing, the employee orally sought permission to offer further medical evidence, but the judge denied that request. (Tr. 55-57.) Neither party filed a formal written motion for the allowance of additional medical evidence. (Dec. 3.)
General Laws c. 152, § 11A (2) provides in pertinent part: Notwithstanding any general or specific 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 submitted by the impartial medical examiner.
Even where the parties do not file a written motion, however, a judge may authorize additional medical evidence on his own motion. See supra n. 2.
Following the hearing, the employee deposed Dr. Cares on December 22, 1993. Dr. Cares once again stated that he was a neurosurgeon and could not give an opinion on the employee's orthopedic condition. (Dep. 13, 22-23, 27, 36.) He stated that "Okay, now one very important thing you have to understand, I'm a neurosurgeon. I don't know anything about shoulders. That's joints." (Dep. 13; see also Dep. 22-23, 27, 36.)
The judge filed his decision on July 29, 1994. He specifically found the report of Dr. Cares "neither inadequate nor . . . the medical issues complicated requiring further medical testimony." (Dec. 9.) He found the opinion of Dr. Cares was "limited to his findings as a neurosurgeon" and he adopted his opinion "as to that limited scope of no objective neurological findings." (Dec. 11; see Ex. A.)
In his general findings, the judge stated: . . . the reports of Doctor Rosania and Doctor Henry both of whom indicate that the employee was symptomatic although his shoulder was resolving with physical therapy as of June 25, 1992 and was capable of light work with no lifting in excess of 15 pounds. Accordingly, I find the employee's own treating physician, Doctor Henry, opined he was then capable of work and I so find and adopt." (Dec. 10-11.) After considering these non-evidentiary medical reports, the judge credited the employee's complaints of pain and found the employee to be totally disabled from April 26, 1991, his last day of work, until June 2, 1991 when he found him to be partially disabled.
The reports of Doctor Rosania and Doctor Henry, treating physician, were in the board file, but not introduced into evidence pursuant to the restrictions of § 11A.
The judge ordered the insurer to pay § 34 benefits from April 26, 1991 to June 1, 1991. (Dec. 11.) He ordered § 35 payments at a rate of $307.73 per week with an earning capacity of $100.00 per week from June 2, 1991 to June 25, 1992 and continuing, and ongoing § 35 payments at a rate of $274.40 per week with an earning capacity of $150.00 per week starting June 26, 1992, and continuing, all based on the stipulated average weekly wage of $560.60. The judge further ordered ongoing § 30 medical benefits. (Dec. 12.)
The insurer appeals from this decision and argues that the award of ongoing § 35 partial incapacity benefits is contrary to law where there was a finding of no disability by the impartial medical examiner after January 29, 1993 which must be accorded prima facie effect. We agree the judge erred but not for those reasons.
The judge here expressly found that the § 11A report was adequate and the medical issues not complex. He excluded the employee offer of additional medical evidence. (Tr. 9-10.) Yet, finding himself in the horns of a dilemma, after ruling the report adequate, he went outside the record to this excluded evidence to support his ongoing orthopedic incapacity determination and order for continuing § 35 benefits. His action was inconsistent with his prior ruling excluding additional medical evidence.
Where the decision is internally inconsistent and based on evidence outside the record, it cannot stand. G.L.c. 152, § 11C; see Cowan v. Springfield Assoc., 9 Mass. Workers' Comp. Rep. 503, 506 (1995). We therefore vacate it and remand. Since the judge found the employee's complaints of continuing pain credible and there was no orthopedic opinion, on remand the judge may reconsider his ruling on the adequacy of the § 11A opinion. He may allow additional medical evidence either on the parties' own motions or on his own initiative as provided in G.L.c. 152, § 11A. See supra note 2.; Mendez v. The Foxboro Co., 9 Mass. Workers' Comp. Rep. (October 31, 1995) (The "medical issues" under each category listed in § 11A(2) can, in any particular case, be multifaceted).
The § 11A (2) medical issues that must be addressed are listed as follows:
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 rising 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 functions have been discovered, if any.
The judge must base his findings and decision, solely on evidence properly before him. Rossi v. Massachusetts Water Resources Auth., 7 Mass. Workers' Comp. Rep. 101, 102 (1993). He may not substitute his own opinion or rely on documents in the board file. Bonasera v. Daniel O'Connell's Sons. Inc., 8 Mass. Workers' Comp. Rep. 307, 308 (1994). On remand the judge is to reach a decision by considering only what is in the record.
Accordingly, we vacate the decision of the administrative judge and remand for further findings. The judge may take additional medical evidence and lay testimony as justice requires. If applicable, the judge is to make further findings on the employee's earning capacity after considering the employee's medical condition together with his vocational capabilities in determining the assignment of an earning capacity. Scheffler's Case, 419 Mass. 251, 256 (1994).
During the pendency of the proceedings on remand, the present order for § 35 partial incapacity benefits shall remain in effect.
So ordered.
_____________________ Edward P. Kirby Administrative Law Judge
_____________________ Suzanne E.K. Smith Administrative Law Judge
_____________________ Susan Maze-Rothstein Administrative Law Judge
Filed: May 20, 1996