Opinion
BOARD No. 08220686
Filed: June 28, 1995
REVIEWING BOARD:
Judges Maze-Rothstein, Kirby, and Smith.
APPEARANCES:
Lynn C. Brendemuchl, Esq., for the employee.
Terrence Buckley, Esq., for the insurer.
The employee appeals from a denial of his claim for further compensation. He submits that a decision on the merits reached in his absence constitutes error. For the reasons discussed below, we disagree and sustain the decision of the administrative judge.
The relevant facts are not in dispute. After a conference order discontinued the employee's weekly benefits, he made a timely appeal. (Dec. 2.) An initial hearing was scheduled for March 27, 1991. (Dec. 3.) The judge was not able to attend on that date due to illness. Id. The hearing was rescheduled for September 9, 1991. (Dec. 4.) Both insurer and employee counsel appeared but the employee did not. Id. Consequently, a date, October 23, 1991, for a second rescheduled hearing was set. Id. Once again, both insurer and employee counsel appeared, the employee did not. Id. On October 24, 1991, employee counsel filed a Motion to Dismiss Without Prejudice. Id. On November 5, 1991, the insurer mailed a Motion to Dismiss With Prejudice. Id. (Emphasis added.) The judge granted neither motion. (Dec. 2.)
The insurer's complaint for modification or discontinuance had been based on a medical report and an alleged offer of suitable work. (Dec. 2.)
The judge was once again ill and unable to attend this hearing.
At this juncture, the circumstances of the case presented the option of dismissing the conference appeal or proceeding with the merits. On July 22, 1992 the judge chose the latter route and heard the case despite the absence of the employee, whose counsel was nevertheless present. (Dec. 2.) The judge issued a decision on August 10, 1992. Therein, he reviewed the medical opinions submitted on report from the opposing parties. In denying the employee further weekly compensation, the judge adopted the opinion of insurer's expert Dr. Kermond. (Dec. 8.)
The employee submits that the administrative judge should have allowed his Motion to Dismiss Without Prejudice.
The allowance or denial of a motion to dismiss for failure to prosecute is committed to the administrative judge's sound discretion. Martinez v. Gillette, 6 Mass. Workers' Comp. Rep. 224, 225 (1992); Humphrey v. Lynn Porsche Audi, 1 Mass. Workers' Comp. Rep. 298, 300 (1988); L. Locke, Workmen's Compensation § 487, at 574 (2d ed. 1981); see Bucchiere v. New England Tel. Tel. Co., 396 Mass. 639, 641 (1986) and authorities cited. "As with most rulings by a judge regarding the management of a case, '[o]nly in rare instances can it be ruled that there has been an abuse of discretion amounting to [an] error of law.'" Merles v. Lerner, 391 Mass. 221, 223-224 (1984), quoting Bresnahon v. Promon, 312 Mass. 97, 101-102 (1942).
As stated, here the judge had the discretion to either go forward with the hearing or to dismiss the case without prejudice. In choosing the former, he did not abuse his discretion. However, a brief decision granting the employee's motion to dismiss without prejudice could have accommodated both the judicial economy concerns which requires a filed decision without delay, as well as the equities of the case. See G.L.c. 152, § 11. Thereby the result of such a dismissal, would have indicated the employee's acceptance of the former conference order. G.L.c. 152, § 10A(3).
We note that the employee's counsel could also have withdrawn the conference appeal with the same ultimate effect. Counsel should be advised in such circumstances that withdrawal of an appeal is the best way to protect an employee's rights. By failing to withdraw the appeal, and leaving to the judge's discretion whether the case would be dismissed with or without prejudice, counsel exposed the employee to the uncertain effect of a decision on the merits reached in his absence.
While judicial economy requires that claimants conform to a standard of diligence in prosecution of their cases, and although his counsel appeared at each scheduled event, the procedural history suggests that the employee himself may not have had notice of the rescheduled hearing dates in question. (Employee Exs. 3-9.) No evidence to the contrary was presented. Unquestionably claimants are obligated to provide the Department with current and accurate mailing information. A countervailing consideration is that before a hearing proceeds on the merits, board procedures — which must afford constitutional due process — dictate that parties have notice, and an opportunity to be heard and to confront and rebut opposing evidence. See Jordan v. American Transp., Inc., 4 Mass. Workers' Comp. Rep. 4, 5, citing Joos's Case, 267 Mass. 322, 326 (1929); see also, O'Brien v. Blue Cross/Blue Shield, 9 Mass. Workers' Comp. Rep. 16 (1995) (for exposition of due process requirements for board proceedings).
The effect of a dismissal with prejudice, or a decision on the merits denying the claim, raises issues as to the effective date from which an employee may again claim weekly compensation benefits. Recent dicta in Perez v. The Prince Company, 9 Mass. Workers' Comp. Rep. 33, 34-35 (1995) suggests that the employee may only file additional claims for benefits after the filing date of the decision. By comparison, the opinion in Aguiar v. Gordon Aluminum Vinyl, 9 Mass. Workers' Comp. Rep. 103, 110 (March 27, 1995), which addressed res judicata when applied to unappealed conference orders, indicates more flexibility is necessary when preserving the real rights of the parties and when doing justice under the Act. The board will address this issue when squarely raised in a case. We do not reach the issue here. Nonetheless, although the employee may file additional claims for compensation pursuant to § 16 beyond the period adjudicated at hearing, a dismissal without prejudice would have allowed for subsequent incapacity filings any time after the conference discontinuance.
Section 16 reads:
When in any case before the department it appears that compensation has been paid or when in any such case there appears of record a finding that the employee is entitled to compensation, no subsequent finding by a member or the reviewing board discontinuing compensation on the ground that the employee's incapacity has ceased shall be considered final as a matter of fact or res adjudicata as a matter of law, and such employee or his dependents, in the event of his death, may have further hearings as to whether his incapacity or death is or was the result of the injury for which he received compensation; provided, however, that if the board shall determine that the petition for such rehearing is without merit or frivolous, the employee or his dependents shall not thereafter be entitled to file any subsequent petition thereof except for cause shown and in the discretion of the member to whom such subsequent petition may be referred; and such a petition for a rehearing shall be filed within three months from the time of his decease and within one year from the date of the finding terminating his compensation.
Amended St. 1985, c. 572, § 31.
The concurrence engages in a discussion of the possible harm to this insurer and to insurers generally, and we grant that potential prejudice to insurer's rights are on par with the rights of any other party. However, a year and a half prior to the hearing, the insurer was relieved of its obligation to pay benefits via the January 24, 1991 conference order. Thus, given the posture of the case, a dismissal of the appeal without prejudice on the employee counsel's motion, would have: 1) re-established the conference order discontinuance and 2) would have obviated the need for further appeal leaving the employee's options under § 16 unscathed. That is, via § 16, further incapacity claims could be brought extending back to the conference denial should a worsening occur. As it stands, the employee's § 16 potential rights arguably may pick up after the hearing determination — a point later in time. See Perez, supra at 34-35. Or perhaps the employee could argue there are reasons that a judge should exercise his powers of equity to reach a time frame prior to the filing date of the decision. See Aguiar, supra; Utica Mutual Ins. Co. v. Liberty Mutual Ins. Co., 19 Mass. App. Ct. 262, 267 (1985). Nevertheless, a direct dismissal without prejudice would have circumvented the thorny res judicata labyrinth that filing of the hearing decision on the merits engendered. These cogent and compelling concerns may have prompted the parties' respective motions to dismiss prior to the hearing.
In this effort, reference is made to the "impressions" section of the doctor's report. Notwithstanding its label, that section of the report clearly delineates the doctor's opinion and medical conclusions. It contains an exhaustive discussion of the employee's chronically dislocated right major shoulder, permanent impairment with a twenty to thirty percent loss of function and an unpleasant forecast of post traumatic arthritic changes yet to come. (Employee's Ex. 2.)
The concurrence cites case law of reviewing board dismissals for failure to prosecute with prejudice. After a full evidentiary hearing, dismissal of an appeal on limited legal issues finally has neither the impact nor the due process ramifications as an identical dismissal would have at the hearing level.
The conference discontinuance was effective as of January 24, 1991. The hearing took place on July 22, 1992 and the determinations were based on medicals current through January 14, 1991. The decision, filed on August 10, 1992, denied benefits beyond the January 24, 1991 conference discontinuance date. We do not address the effect of the hearing discontinuance based on the non-evidentiary conference order date as the parties did not raise the issue. See Reppucci v. Ace Generator Co., 9 Mass. Workers' Comp. Rep. ___ (1995).
We follow the reasoning of Monahan v. Washburn, 400 Mass. 126 (1987) on this issue. In the courts, an "involuntary dismissal" is automatically considered an adjudication of the merits and is with prejudice unless specifically stated otherwise. Id. at 128 and 130 (Hennessey, C.J., concurring); see also Mass. R. Civ. P. 41(b)(2) and (3), 365 Mass. 804 (1974). The Monahan court cautioned against a "Draconian" approach, which has res judicata effect and can prejudice and foreclose rights, unless the litigant's course has been found unreasonable. Id. at 130. Therefore, Monahan instructs against reaching the "merits" by an involuntary dismissal which — due to its finality — is likely to prejudice a litigant's potential future rights. Id. at 128. Instead consideration of less drastic and more suitable alternatives is suggested. Id. at 129.
Unquestionably, the finality of a hearing decision on the merits or a dismissal with prejudice — and attendant res judicata implications, packs less of a sting in contests on the mutable conditions of injured workers under c. 152 than in actions at law. See Aguiar, supra; see also, G.L.c. 152, § 16 (text in n. 4, supra. However unappealed decisions on the merits be they for benefit awards or dismissals, are and should be considered, with prejudice for the specific time frame adjudicated.
Here despite the contrary conclusions reached by the concurrence, the judge did not find any unreasonable action by the employee. See Walsh v. General Electric, 4 Mass. Workers' Comp. Rep. 54 (1990) (claimant hospitalized; failure to appear not dilatory). Compare Hernandes v. Spectraway Corp., 5 Mass. Workers' Comp. Rep. 335, 336 (1991) (reaching merits absent the employee upheld where clerical error by employee counsel's secretary poses unreasonable excuse for failure to prosecute). Contra Wilkinson v. Guarino, 19 Mass. App. Ct. 1021, 1023 (1985) (judge's refusal to grant relief from judgment was error where failure to prosecute was due to minor carelessness by counsel and not by the litigant). Thus, consistent with Monahan, supra, where the administrative judge had not found unreasonable action by the employee, rather than reach the "merits" in the employee's absence, the less drastic and perhaps more desirable approach would have been the filing of a one page decision dismissing the employee's claim without prejudice.
The decision is silent as to the employee's whereabouts on the hearing date. From the evidence submitted it appears he had moved. (Employee Exs. 4, 6, 7, 8, 9.) The concurrence, not the judge, speculates the employee engaged in unreasonable delay and favorably quotes the insurer's brief which discusses the employee's "obvious lack of interest in this process and the outcome of his case. . . ." The employee could have just as easily had a deep and abiding interest in his case, but could have been lying in a coma somewhere. Neither speculation is proved or provable and so neither should be entertained as valid.
In this case, the judge did not abuse the discretion accorded him. Therefore, we affirm the decision. Because the employee has received compensation, G.L.c. 152, § 16 permits him to file a new claim for benefits if warranted by his situation.
Each case must be looked at for its own specific procedural circumstances. The law has long recognized that dismissals for technicalities such as failure to prosecute, want of parties, or any other cause not involving the essential merits of the case may be made reasonably without prejudice. See, Foster v. The Richard Busteed, 100 Mass. 409, 412 (1869). There is no one hard and fast rule, although dismissal without prejudice for failure to prosecute is the preferred approach where as here, actual support for unreasonable delay is lacking. Thereby the insurer is relieved of further benefit obligations and the employee may refile if appropriate to his circumstances. See Waldron v. Digital Equipment Corp., 4 Mass. Workers' Comp. Rep. 298 (1990).
So ordered.
Judge Kirby concurs.
I agree with the result but disagree with dicta which impermissibly intrudes on the clear authority of the administrative judge pursuant to G.L.c. 152, §§ 11 and 11B and 452 CMR 1.11(7) and 1.18(3) to control the conduct of his hearings and the issuance of decisions based upon them. See dissent of J. McCarthy in Nesley v. Varain Vacuum, 7 Mass. Workers' Comp. Rep. 343, 345 (1993). The administrative judge's decision was within the scope of his authority, and was not arbitrary or capricious or contrary to law. General Law c. 152, § 11C therefore requires us to affirm his decision.
Standard of Review
The court has defined an abuse of discretion as "arbitrary determination, capricious disposition, or whimsical thinking," Davis v. Boston Elevated Ry., 235 Mass. 482, 496, 126 N.E. 841 (1920), or "idiosyncratic choice," Berube v. McKesson Wine Spirits Co., 7 Mass. App. Ct. 426, 433, 388 N.E.2d 309 (1979), quoting Restatement (Second) of Judgments s 122 comment g (Tent. Draft No. 6, 1979). See Restatement (Second) of Judgments s 74 comment g (1982).
Our standard of review is not substituted judgment. Frazier v. Cumberland Farms, 7 Mass. Workers' Comp. Rep. 36, 39 (1993). See McEwen's Case, 369 Mass. 851, 854 (1976); Gherardi v. Rexnord, Inc., 7 Mass. Workers' Comp. Rep. 229, 230 (1993). There is no error of law amounting to an abuse of discretion simply because a reviewing administrative law judge might have reached a different result had he or she been present at hearing. For purposes of this appeal, it is sufficient if the administrative judge could have proceeded with the hearing within the bounds of his discretion; beyond that appellate inquiry is at an end. See Scannell v. Ed. Ferreirinha Irmao, Lda., 401 Mass. 155, 159-160 (1987) (motion to vacate default judgment). Thus the question before us was not which choice was preferable for the judge to make. Having decided that the judge acted within the scope of his authority, and not arbitrarily, capriciously or contrary to law, there was no reason for further discussion. Summary disposition would have been appropriate.
However, because the majority has chosen to comment on alternatives and recommend "more desirable" approaches, it is appropriate to affirmatively state the reasons why the judge's action was well grounded in both the facts of the case and the law.
Facts
On this record it is undisputed that the employee had notice, through counsel, and the opportunity to appear at hearing. No question of a deprivation of constitutional due process appears here.
On June 27, 1990, the insurer filed a complaint to discontinue based upon medical information of full recovery and a job offer. After conference in January 1991, an administrative judge authorized the insurer to discontinue payment of weekly compensation. Employee's counsel immediately filed an appeal from the conference order, resulting in the scheduling of a hearing. The initial hearing in March 1991 was continued due to the judge's illness.
Seven months after the conference, in August 1991, the department sent a hearing notice to employee's counsel. Upon receipt, counsel proceeded diligently to contact his client. He sent the employee a letter informing him of the hearing date. (Employee Ex. 3.) On August 12, 1991, he requested information from the post office regarding the employee's change of address. The post office responded: "Moved left no address approx. 8/1/91." (Employee Ex. 9.)
The employee did not appear for the scheduled hearing on September 9, 1991. At request of employee's counsel, the hearing was continued and a new date set seven weeks later. Employee's counsel sent the employee notification of the new hearing date by both certified and regular mail. The certified letter was returned as unclaimed and the regular address letter was returned with the notation "not at this address" . . . "attempted, not known, return to sender." (Employee's Ex. 6 and 7.) In addition counsel sent notification by Federal Express which reported back that it could not make the delivery because the employee had moved. (Employee's Ex. 4.)
The employee did not appear at the rescheduled hearing on October 23, 1991. Because both the employee and the judge were absent on that date, the hearing was again postponed. The next day, employee's counsel wrote to the judge requesting permission to withdraw as counsel, and requesting further "if you are inclined to dismiss the appeal that you dismiss it without prejudice to preserve the employee's rights."
The insurer filed a motion to dismiss with prejudice on the grounds that "the employee, whose benefits have been terminated, has failed to contact his attorney or the Department of Industrial Accidents regarding his case. . . . [B]ased on the employee's obvious lack of interest in this process and in the outcome of his case . . .," it requested that the dismissal be with prejudice "so that the employee, who has spumed the Court's attempt to accommodate him by way of a hearing, may not bring this matter forward at a future date at his convenience." No ruling was entered on either party's dismissal motion.
The case thereafter languished on the docket. Nine more months passed. On July 22, 1992, more than two years after the discontinuance complaint alleging an end to incapacity was filed, the case again reached hearing. Again employee's counsel diligently attempted to locate the employee without success. Again both counsel were present but the employee was not.
At the commencement of the hearing, the judge recited without objection the procedural history of the case and admitted exhibits. (Tr. 1-5.) The employee's counsel offered a medical report from the employee's treating physician dated January 14, 1991 which indicated no need for continuing medical treatment and no current disability. (Employee Ex. 2.) The insurer offered the medical report which had been attached to its discontinuance complaint and which stated that the employee was able to return to his pre-injury job as of June 8, 1990.
The chiropractor diagnosed a right chronic shoulder sprain/strain with thoracic subluxation. In his report, he wrote: "Mr. Benjamin exhibits a chronically injured right shoulder articulation. This injury is best described as a sprain injury which at the present time is demonstrated as being chronic. This chronic sprain injury has caused hypermobility or an excessive motion in the A to P plane of the right gleno humeral articulation. A chronic sprain of the shoulder is most commonly referred to in layman's terms as a chronically dislocated right shoulder joint. Due to the chronic nature of this problem and the obvious articular problems associated with this it is felt that chiropractic care related the spine and paraspinal extremity articulations would not be a benefit in the case of Mr. Benjamin. We have treated Mr. Benjamin on a few occasions in reference to the subjective cervical thoracic complaints and also with instructions to best deal with this chronic right shoulder problem. We have also given Mr. Benjamin a range of motion exercise booklet regarding the right shoulder for home therapeutic usage. It is not felt that our office would be treating Mr. Benjamin on an active treatment scheduled bases [sic] in reference to this right shoulder injury. Although there is definitely a permanent impairment of the right shoulder in reference to this chronic "dislocation" it presently only demonstrates a minimal functional disability. In the advancement of the patient's age it would be most likely anticipated that an additional disability of the right shoulder would present itself. The impairment or abnormal function at present would be considered a permanent 20-30% functional impairment of the right shoulder. Although stated earlier a disability is not presently noted to be disabling it would be expected that future disability related [sic] this articulation would be expected. We have recommended that Mr. Benjamin continue with the physical therapy previously prescribed him and also for his enrollment in a muscular strengthening exercise program related [sic] the shoulder girdle would basically help strengthen the right shoulder so as the permanent impairment related [sic] the right shoulder would not be as readily involved in the functional disability related [sic] those activities that stretch the shoulder beyond it's normal function. In conclusion, Mr. Benjamin suffers from a chronic dislocation of the right shoulder joint. There is hypermobility and articular crepitas. This problem will most likely lead to further arthritic changes within the shoulder joint and demonstrate a functional disability relating [sic] his everyday activities. At present due to the patients [sic] extremely well muscular built [sic] frame a disability is not presently demonstrated but a permanent functional impairment is. This functional impairment would have an impairment rating of 20-30%. The patient is presently concluding his corrective appointment with our office and further adjustive sessions are not indicated."
Employee's counsel did not make another motion to continue and did not renew the motion to dismiss without prejudice. Counsel informed the judge: "The Employee's counsel has been unable to contact the Employee. The last contact with our office was June 19, 1991. I rest my case." (Tr. 5.) Insurer's counsel requested a reaffirmation of the conference order terminating compensation. And with that the hearing closed.
The judge issued a decision making detailed findings on the medical evidence. He found as a fact that the employee had not proved a disability following the date when the conference order terminated benefits. The decision in effect reaffirmed the conference order's termination of benefits by denying the employee's request for a restoration of the compensation after the conference date.
Legal Analysis
The employee argues that the judge erred as a matter of law in denying the motion to dismiss without prejudice. His argument is based on two erroneous premises: 1) that to reach the merits, the insurer must show that the employee as well as his attorney received the hearing notice; and 2) that any order could be issued post-conference "without prejudice." I will first address the notice required for a dismissal with prejudice.
The reviewing board in handling its own caseload has followed the practice of dismissing with prejudice for lack of prosecution. See, e.g., Marszal v. City of Boston, 5 Mass. Workers' Comp. Rep. 17, 18 (1991); Pierre v. 99 Restaurant, 2 Mass. Workers' Comp. Rep. 263, 264 (1988); Jones v. Liberty Mut., 1 Mass. Workers' Comp. Rep. 279, 279 (1987). It has not required proof that the employee received notice to do so.
The reviewing board has dismissed cases with prejudice where the employee's whereabouts are unknown. In Santiago v. Blueview Nursery, 3 Mass. Workers' Comp. Rep. 69, 70 (1989), notice of reviewing board proceedings sent to the employee was returned as unclaimed and unable to be forwarded. Employee's counsel stated that he had made numerous unsuccessful attempts to contact the employee concerning the appeal. Neither employee's counsel nor the insurer had any information concerning the employee's whereabouts. Similarly, in Nova v. Capital Bldg. Servs., 4 Mass. Workers' Comp. Rep. 377 (1990). The reviewing board notice sent to the employee at his last known address by certified mail was returned as "unclaimed." The letter sent by ordinary mail was not returned. Neither the insurer nor the reviewing board heard anything from the employee. In dismissing the appeal with prejudice, the panel concluded: "The employee has been afforded ample opportunity to prosecute his appeal of the Administrative Judge's decision." Id. at 378.
In the context of a claim for compensation, where notice of hearing is provided to counsel and the employee fails repeatedly to appear at the scheduled hearing, a judge may close the hearing and deny the claim for failure to prosecute. Baptiste v. Howard Johnson, 5 Mass. Workers' Comp. Rep. 24, 25 (1991). However, where appropriate, an administrative judge may proceed with hearing in the employee's absence and render a decision on the merits. See National Grange Mut. Ins. Co. v. Walsh, 27 Mass. App. Ct. 155, 157 (1989) ("[t]he judge may mark a case for hearing, sua sponte . . ."). Thus in Hernandez v. Spectraway Corp., 5 Mass. Workers' Comp. Rep. 335, 336 (1991), the reviewing board found no abuse of discretion in holding a hearing in the employee's absence where the non-appearance resulted from the hearing notice being improperly calendared by employee's counsel.
Parties have a responsibility to appear on their assigned hearing dates prepared to go forward with evidence. If we allow litigants to disregard the department's schedule without valid reason, it will become impossible to administer the caseload. Alsonso v. Dennison Mfg. Co., 5 Mass. Workers' Comp. Rep. 263, 264 (1991). In a discontinuance case, where an employee fails to appear for hearing without valid excuse, an adjudication on the merits and the entry of an order terminating compensation, if supported by the evidence, is appropriate. Waldron v. Digital Equip. Corp., 4 Mass. Workers' Comp. Rep. 298, 298 (1990).
Absence at the hearing due to lack of notice which results from the failure to keep counsel and the department apprised of a current address may be a valid excuse for a short period of time after a change in residence, for example, where the new address is unknown at the time of the move. One should be aware, however, that G.L.c. 152, § 11 restricts a judge's power to grant continuances. A hearing may be delayed "only for reasons beyond the control of a party or his attorney." Otherwise the statute requires that a hearing be held and a decision issued.
The majority's dicta is predicated on the prejudicial effect of the hearing decision. Yet dismissal of the appeal from conference order also has a prejudicial effect, that imposed by G.L.c. 152, § 10A(3). In the recent case of Aguiar v. Gordon Aluminum Vinyl, 9 Mass. Workers' Comp. Rep. 103 (1995) this panel engaged in a lengthy discussion of the application of res judicata in the context of an unappealed conference order. We said:
The issue preclusion doctrine, although recognized as applicable to workers' compensation cases, does not rigidly bar further litigation. Hunnewell's Case, 220 Mass. 351, 353, 107 N.E. 934, 935 (1915). Workers' compensation procedure is flexible and adapted to the direct accomplishment of the aim of the act, with as little formality or hampering restriction as is consistent with the preservation of the real rights of the parties and the doing of justice according to the terms of the act. Id., 220 Mass. at 354, 107 N.E. at 935. The workers' compensation act specifically directs that procedures in the division of dispute resolution "shall be as simple and summary as reasonable." G.L.c. 152, § 11B. Finality is extended only where the litigation of a particular issue has reached such a stage that there is no good reason for permitting it to be litigated again and where the failure to conclude the litigation will lead to needless duplication of effort and expense. See Arthur D. Little v. East Cambridge Savings Bank, 35 Mass. App. Ct. 734, 739-740 (1993), citing Restatement (Second) of Judgments § 13, comment g (1982) (issue preclusion based on trustee process action).
Re-litigation is not precluded where a new determination is warranted in order to take account of an intervening change in the applicable legal context or otherwise avoid inequitable administration of the laws. . . .
Applying these principles, there is no reason to fear that the decision prevents a future adjudication if the employee comes forward in the future with evidence that he was in a coma and therefore unable to contact his counsel or appear at the scheduled hearing. See footnote 9 supra. The board has equity power to prevent invocation of a res judicata bar to relitigation under those circumstances. However, under ordinary circumstances, there is no equitable reason to prevent the decision from having a res judicata effect.
The communication of a new address is something routinely within a party's control and failure to do it may not be a valid basis for a continuance. Certainly the lack of notice stemming from a party's failure to provide counsel and the department with the new address for more than a year after the move is not a valid basis for continuance. See Keys v. ARA Services, 1 Mass. Workers' Comp. Rep. 384, 385 (1988) (failure of counsel to appear at assigned hearing date because he could not locate the employee was a "patently insufficient reason" for counsel's absence).
The above-cited reviewing board cases cannot be distinguished on the grounds that they only dealt with limited legal issues. See footnote 6, supra. Prior to the 1991 reforms, St. 1991, c. 398, § 31 effective December 23, 1991, the reviewing board had the power to find facts. See dissent in Grattan v. Worcester State Hospital, 9 Mass. Workers' Comp. Rep. 226, 240-242 (1995) for background regarding the reviewing board's ability to weigh evidence. See also Lettich v. Kenway Jenney, 1 Mass. Workers' Comp. Rep. 184 (1987), aff'd as Lettich's Case, 403 Mass. 389 (1988).
The rationale applied in prior reviewing board cases is equally applicable to this case. The reviewing board should not indicate that it now prefers a practice contrary to conduct which itself has traditionally approved and performed without at least providing cogent distinction of prior precedent.
The insurer here incurred legal expenses after the issuance of the conference order to prepare for the hearing which the employee requested. The employee underwent additional medical examinations, evidence of which the insurer agreed to admit. Why should an employee who engages in unreasonable delay or default be able to prevent any preclusive effect from this evidence?
This is not a case where "the carelessness . . . is relatively minor and is attributable to counsel and not to the litigant." Wilkinson v. Guarino, 19 Mass. App. Ct. at 1021, 1023, 476 N.E.2d 983 (1985). Rather, the employee's absence looms large when viewed as a product of his own apparent neglect, occurring after a hearing has been scheduled, and preventing the hearing from proceeding. Indeed, even now, the employee has not offered to explain his absence. Compare Ferrez v. Mediplex Group, Inc., 1 Mass. Workers' Comp. Rep. 297, 297 (1988) (affidavit explaining circumstances of her failure to appear at hearing presented on appeal); Walsh v. General Electric, 4 Mass. Workers' Comp. Rep. 54, 55 (1990) (reason for nonappearance learned after hearing date; claimant failed to appear because she was hospitalized).
We are still wondering where the employee is. And the insurer is still waiting for finality on its discontinuance complaint five years after it was filed! Why shouldn't ordinary res judicata principles prevail to put an end to this proceeding?
The employee has been treated with patience. His case was rescheduled due to his absence for a sufficient period of time to compensate for lack of communication due to a change in residence. Employee's counsel was present and participated in the hearing, offering exhibits. There is no evidence of prejudice on judge's part.
Although proceeding with hearing in the absence of a party should not be undertaken lightly, nevertheless, in the light of all the circumstances, it was appropriate action that should not be deemed as less "preferable" to a dismissal. The employee retains the rights granted by G.L.c. 152, § 16 and may file a claim for further compensation should he have a good faith basis to do so. Hernandez v. Spectraway Corp., 5 Mass. Workers' Comp. Rep. 335, 336 (1991); Waldron v. Digital Equipment Corp., 4 Mass. Workers' Comp. Rep. 298, 298 (1990).
Conclusion
This record demonstrates that the judge's decision was within the scope of his authority, not arbitrary or capricious or contrary to law. G.L.c. 152, § 11C. It should be affirmed without unnecessary comment or implied criticism.