Opinion
BOARD No. 05809191
Filed: June 23, 1995
REVIEWING BOARD:
Judges Fischel, McCarthy, and Wilson.
APPEARANCES:
Bernard J. Mulholland, Esq., for the employee. William A. Navarro, Esq., for the insurer.
The employee, a fifty-eight year old maintenance worker, suffered a myocardial infarction on June 14, 1991. He filed a claim for benefits under G.L.c. 152. The insurer denied liability and the administrative judge denied the claim at conference. The employee appealed and a hearing de novo was held in front of the same administrative judge. Pursuant to § 11A an impartial medical examination of the employee was conducted and a report of the examination was prepared. The report stated, and the judge so found, that Umbrianna had suffered an acute myocardial infarction on June 14, 1991 as a natural progression of underlying coronary artery disease, and concluded that the acute myocardial infarction and underlying coronary artery disease were neither caused nor aggravated by the employee's work activities and that he was disabled from employment. (Dec. 6, emphasis added.)
G.L.c. 152, § 11A(2) provides, in pertinent part:
When any claim or complaint involving a dispute over medical issues is the subject of an appeal . . . the parties shall agree upon an impartial examiner . . . or said administrative judge shall appoint such examiner. . . . The impartial examiner . . . shall examine the employee and make a report. . . . 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 impartial examiner's report shall constitute prima facia evidence of the matters contained therein. . . . Either party shall have the right to engage the impartial medical examiner to be deposed for the purposes of cross examination . . . 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 examiner.
The employee timely moved to submit additional medical evidence. The motion was denied, making the § 11A medical opinion the sole medical evidence utilized by the judge. The administrative judge issued a decision finding the employee's disability was not caused by a work injury, and denied the employee's claim. (Dec. 7.)
The employee appeals from the hearing decision. He concedes that the language of § 11A gives an administrative judge the authority to determine whether 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." § 11A(2). The employee submits that in denying the employee's motion to submit additional medical evidence, the administrative judge's application of § 11A(2) prevented the employee from having the opportunity to meet his burden of proof concerning medical causality. An employee has the burden of proof on every element of his claim. Sponatski's Case, 220 Mass. 226 (1915). Where he was barred from meeting this burden, the employee argues, he was denied due process.
Constitutional due process requirements apply to board hearings and decisions. Meunier's Case, 319 Mass. 421 (1946). Under well-established case law, parties to proceedings before an administrative judge are entitled to a hearing at which they have an opportunity to present evidence, to examine their own witnesses and to cross-examine witnesses of the other party to know what evidence is presented against them, as well as to an opportunity to rebut such evidence and to argue on the issues of fact and law involved in the hearing. They are then entitled to a decision based on evidence presented at hearing. Haley's Case, 356 Mass. 678, 681 (1970); Cowe v. Community Health Service, Inc., 5 Mass. Workers' Comp. Rep. 113 (1991); See also G.L.c. 152, § 11.
The employee argues that the language of § 11A, which gives the administrative judge the power to limit the evidence presented at hearing impedes the employee's ability to sustain his burden of proof, therefore depriving him of any workers' compensation benefits to which he would otherwise be entitled as a result of work-related incapacity from earning. The employee likens his situation to those where the deprivation of an entitlement requires imposition of minimum due process protection. See Board of Regents v. Roth, 408 U.S. 564, 577 (1972); and see Allen v. Board of Assessors of Granby, 387 Mass. 117, 119 (1982). He contends that, as with other benefit programs, "[t]he extent to which procedural due process must be afforded the recipient is influenced by the extent to which he may be `condemmed to suffer grievous loss.'" Goldberg v. Kelly, 387 U.S. 254, 262, 263 (1970), quoting Joint Anti-Facist Refuge Committee v. McGrath, 341 U.S. 123, 162 (1951). He argues that where workers' compensation is the only recompense for work-related incapacity, he will suffer grievous loss without such wage replacement benefits, and be unable to provide the basic elements for living.
The insurer counters that workers' compensation benefits are not so fundamental a right as to require more than minimal due process, and asserts that there are inherent safeguards in § 11A that assure minimal due process. The insurer contends the due process safeguards are (1) the right of the employee to cross-examine the impartial physician; (2) the right of the employee to request the opportunity to submit additional medical evidence; (3) the opportunity to submit medical reports to the § 11A examiner for that physician to review in connection with his evaluation of the employee, and (4) that in making an incapacity determination the § 11A report is only prima facie evidence of the medical matters it contains, and beyond that a judge also assesses the employee's age, education, training, work experience, capabilities, and the various economic considerations denoted by the court in Frennier's Case, 318 Mass. 635 (1945), and Scheffler's Case, 419 Mass. 251, 256 (1994).
The insurer poses the question thus: "[w]hat is the risk of an erroneous deprivation of the employee's workers' compensation benefits as a result of this impartial physician system[?]" (Insurer's brief p. 12). The insurer maintains that the system "assures fair consideration of the employee's claims" and does "not violate our sense of fair play . . . nor operate oppressively or in an arbitrary or unjust manner." Id.
The employee disagrees, and responds that under the circumstances here the safeguards are illusory and disappear. When the only medical report allowed in evidence is an [sic] § 11A report of a physician who negates causal relationship between the injury and the employment, the party opposing that opinion is confined to trying in cross-examination to get the 11A examiner to change his or her mind, and recant or abandon his opinion. O'Brien v. Blue Cross/Blue Shield, 9 Mass. Workers' Comp. Rep. 16 (1995). When the § 11A examiner declines to recant his opinion disputing causal relationship, the employee avers that the first alleged safeguard of cross-examination of the § 11A medical examiner is rendered ineffective.
As to the second purported due process safeguard, when the judge rejects a motion for additional medical testimony, the claimant is unable to place into evidence any expert medical opinion which could sustain his burden of proof on causal relationship and the § 11A expert's opinion negating causal relationship thus becomes an irrebuttable presumption. Id. at 23; See Meunier's Case, 319 Mass. 421 (1946).
According to the employee, the supposed third safeguard, the submission of medical records to the § 11A examiner, also fails to ensure due process since the underlying medical records themselves are not placed into evidence, depriving the administrative judge of the necessary medical evidence needed to determine the foundation for the § 11A examiner's opinion, and the soundness of the conclusions drawn by the § 11A examiner. O'Brien, supra, at 26. In this case, according to the employee, a party wants the information relied upon by the expert to be in evidence to show impaired foundation for the expert's conclusion in order to meet his burden of proof on causal relation, but is barred from offering this documentary proof.
Finally, the employee maintains that while it is true that adjudicatory determinations regarding incapacity are a two step process involving both medical and non-medical elements, Frennier's Case, supra; Scheffler's Case, supra, there is no safeguard to the employee here because the initial step in the process requires that the employee first meet his burden of proof as to medical causal relation. When the employee cannot meet his burden on causal relationship, the second step of the analysis does not occur. Lack of medical causal connection prevents consideration of the economic element, and the employee cannot prove his case.
The employee submits that when the § 11A medical examiner negates causal relationship, and no other medical evidence is allowed, he is denied due process. The purported safeguards, he says, prove hollow. The employee thus asks us to proclaim § 11A(2) unconstitutional. The issue of the constitutionality of § 11A(2) is not new to us. See O'Brien v. Blue Cross/Blue Shield, supra. As we have stated in the past, we recognize our clear obligation to protect the due process rights of parties in litigation before this department. Id. While § 11C confers on us the power to declare an administrative judge's decision "contrary to law," we lack authority to declare a law "contrary to law." Id.
Consistent with our obligation to protect rights as the administrative agency responsible for interpretation of c. 152, we noted in O'Brien our concern that in application, § 11A may adversely affect the constitutional rights of the parties in proceedings at the department. We have the same concerns in this case. Resolution of these issues will be a matter for the courts. We affirm the decision of the administrative judge.
Judges McCarthy and Wilson concur.