Opinion
BOARD No. 960791
Filed: January 25, 1996
REVIEWING BOARD DECISION
(Judges Maze-Rothstein, Kirby and Smith)
APPEARANCES
Mark Vanger, Esq., for the employee
Craig Russo, Esq., for the insurer
The employee appeals from a decision dismissing his claim for further § 34 weekly and § 30 medical benefits. He asserts the judge's decision based on the report and deposition of the G.L.c. 152, § 11A physician is arbitrary, capricious, and contrary to law. Finding error under the facts existing in this case, we vacate and remand for further proceedings consistent with this opinion.
The employee, Wilfrido George, worked at the Chelsea Housing Authority as a housing inspector, a job requiring off premises travel to make on-site inspections. On February 26, 1991, he was involved in a motor vehicle accident while driving to an inspection site. The misfortune left him with neck, back, and right shoulder injuries. The insurer accepted initial liability and commenced payment of § 34 temporary total incapacity benefits. (Dec. 3.) In December 1992, the employee suffered a debilitating stroke which caused considerable neurological impairments that curtailed his intellect and powers of recall. (Dec. 4; Statutory Ex. 1 [Impartial Medical Report], 5.)
The insurer filed a complaint for discontinuance of the § 34 benefits, which was authorized by a conference order dated August 7, 1992. The employee appealed and the case was assigned for a hearing before the same judge. On September 20, 1993 the employee was examined by a § 11A physician who rendered an evaluative report bearing the same date. At the hearing on October 21, 1993, the employee sought to have his former benefits reinstated from August 8, 1992 and continuing. (Dec. 3.) The employee also moved for allowance of additional medical evidence asserting medical complexity under § 11A(2). In the ensuing decision, the judge made no ruling on complexity but instead found the § 11A report was adequate and denied the motion. Then, relying on the § 11A report, she dismissed the employee's claim for further benefits. (Dec. 4-5.) Aggrieved, the employee seeks relief.
One argument among those advanced disposes of this appeal. The employee contends that the ten months between the (post-industrial injury) December 1992 stroke and the September 20, 1993 § 11A examination resulted in a diagnostic gap period for which the § 11A examiner did not and could not address the extent of the medical disability, thus triggering the requirement for an allowance of additional medical evidence. (Employee's Brief, 10, 14.) We think that the employee raises an important issue, and we agree generally with his contention. However, we read the alleged inability of the § 11A examiner to assess disability prior to the examination date as relating back to the date of the discontinuance of benefits, (August 7, 1992). While the stroke and its effects on the period prior to the § 11A report are significant, it is not by virtue of the stroke that said period is legally problematic. The only distinction between the pre-stroke disability and that occurring thereafter is one of increased medical complexity. Instead, we find that the § 11A report provided no adequate response to the period of contested incapacity occurring prior to the § 11A examination because the examiner's actual medical disability opinion was limited to the exam date. (Dep. 30-31.) This inadequacy rendered the judge's denial of the motion to allow additional medical evidence an error of law.
We do not address the issue of § 11A's constitutionality also raised by the employee because it is mooted by our ruling that this case requires additional medical evidence. See Lebrun v. Century Markets, 9 Mass. Worker's Comp. Rep. ___ (1995); see also O'Brien v. Blue Cross/Blue Shield, 9 Mass. Workers' Comp. Rep. 16, 25-26 (1995) (for a discussion of due process concerns where no additional medical evidence has been allowed).
Section 11A(2) sets out factors that a § 11A report must address including: disability and extent thereof, causal relationship, medical end result, and loss of function, if applicable.
Section 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 as 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. Such impartial physician's report shall constitute prima facie evidence of the matters contained therein.
Drawing on language in the § 11A report the judge found that:
Dr. Shapiro [the impartial examiner] was of the opinion that the report of the insurer's medical examiner finding the employee able to return to work before his stroke [in December 1992] is correct. Therefore, his stroke did not affect the employee's ability to return to work. Since the employee's stroke is unconnected to the accident at work, there is no basis to award him further benefits.
Dr. Shapiro gave no such opinion. The judge's finding of no compensable incapacity imputes that the employee failed to meet her burden of proof for the time frame preceding the § 11A examination, but it lacks support in the record. When deposed, the doctor made no such extrapolation about the prior period of disability. Instead he stated that his opinion corresponded only to the employee's medical condition "at the time [he] examined him [on September 20, 1993] naturally." (Dep. 31.) Moreover, a conclusion on incapacity at any particular time had to be in part based on expert medical testimony. Cook v. Somerset Nursing Home, 8 Mass. Workers' Comp. Rep. 135, 136 (1994); Galloway's Case, 354 Mass. 427, 431 (1968). (Dec. 4.) And because the doctor's actual opinion was only as of the exam date there was no medical evidence for the "particular" time prior to that exam. Id.
There are reasons that the treatment of opinions on prior periods of medical disability under the rubric of § 11A should be approached with caution. Where additional medical evidence has been disallowed, § 11A provides that the report submitted be the exclusive prima facie evidence of the employee's medical condition. Thus, the statute itself dictates the weight to be given the evidence and where it is ruled the sole medical opinion in the case, constricts the medical evidence that can be considered. As such, § 11A has statutorily affected the judicial "weighing" process, which before its enactment we held to be appropriate for fact finding based on a medical opinion for a prior period of disability. Compare Savaria v. General Electric Co., 8 Mass. Workers' Comp. Rep. 132, 133 (1994). Moreover,before § 11A's enactment, litigants had both the right and opportunity to provide contemporaneous medical evidence. For such cases, the onus for any "gap" period remaining, when that opportunity was missed, more equitably rested on the employee who failed to advance adequate evidence of disability, or on the insurer who did not submit its § 45 physician report(s) when they were at least permitted to do so. But in the wake of § 11A's enactment, the parties' ability to move for submission of additional medical testimony falls far short of having the unquestioned right to introduce such evidence as exists in the courts. See O'Brien, supra at 25-26.
Nor do we consider the role of the § 11A examiner as analogous to that of experts hired by parties in the constitutional courts. There the rule is that an expert may base her opinion on facts not in evidence, but which would be admissible in evidence. See Liacos, Handbook of Massachusetts Evidence, 6th Ed. (1994), § 7.10.2. Parties have every right and opportunity in a trial to introduce whatever evidence serves as, or challenges, a foundation for their or the opposition's expert's opinion that they see fit, within the bounds of the law. Such is not the case with regard to the § 11A examiner. Without an allowance of additional medical evidence, when the examiner incorporates other physicians' reported opinions from prior examinations, the parties have no right or opportunity to introduce those reports relied upon.
We must construe § 11A to establish procedures that do "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 pivotal contested issues or else serious due process problems arise."Lebrun, supra, citing Aime v. Commonwealth, 414 Mass. 667, 682 (1993). In this case, there is a clear deficiency in the § 11A report insofar as it did not adequately address whether and to what extent a disability existed between August 7, 1992 and September 20, 1993. As the doctor freely admitted when deposed, he simply made no assessment of disability for that prior period. This could not be characterized as a "matter contained" in the report, within the meaning of § 11A.
We are further persuaded in our construction of § 11A, by the regulations that address situations analogous to that presented in the instant case:
No impartial physician shall be required in matters concerning § 7A ( prima facie evidence in death cases) and § 31 (death of employee) and matters where the dispute over entitlement to weekly benefits concerns a specific period(s) of prior disability. 452 Code Mass. Regs. 1.10(5). (Emphasis added).
This regulation recognizes the inherent difficulty in requiring a doctor to comment on a disability that ended in either death or a subsequent recovery. The instant case involves a prior period of disability, which isone of the contested medical issues versus a situation contemplated by the rule where the prior period of disability is the only contested medical issue. There is no logical difference between the genres of historic periods of medical disability.
The concurrence posits other reasons, which are compatible with the one suggested here. For any number of reasons, it may be evidentially imprudent to have an exclusive medical opinion comment on historic periods of disability.
The § 11A physician's opinion as of September 20, 1993 necessarily left a total absence of evidence on the employee's orthopedic condition for the period in contest up to that point. The § 11A report was thereby rendered inadequate as a matter of law on the issue of the disputed period of disability for which the § 11A doctor had no opinion. This deficiency, arguably compounded by the employee's post-stroke inability to effectively communicate, made necessary an allowance of additional medical evidence to afford the employee an opportunity to meet his burden of proof. See Sponatski's Case, 220 Mass. 526, 527-528 (1915) (burden of proving essential facts necessary to establish case rests on the employee). Under the specific circumstances of this case, denial of the motion for allowance of additional medical testimony impermissibly foreclosed to the employee any means of meeting his burden. Lebrun, supra; and see Haley's Case, 356 Mass. 678, 682-683 (1969) (for discussion of due process requirements applicable to workers' compensation cases).
The gap period between the employee's debilitating stroke in December 1992 and his § 11A examination on September 20, 1993 also raises the issue of medical complexity given the confounding factor of the added stroke related impairments.
The employee's after-occurring stroke, if found unrelated, would not be a contributing factor in his medical disability under c. 152. SeeMcComiskey v. AT T Technologies, 8 Mass. Workers' Comp. Rep. 382, 384 (1994) (once liability has attached the extent of the industrial incapacity must be assessed in isolation from any subsequently sustained intervening condition or injury).
Finally, the record here provides no support for discontinuing the employee's weekly benefits as of the August 8, 1992 conference order filing date — four months prior to the stroke. Not only is a conference order date non-evidentiary, but also where no additional medical evidence had been allowed and the § 11A opinion addressed disability only as of the September 20, 1993 examination, there was no expert medical evidence, prima facie or otherwise, to support a conference order date discontinuance. See Lebrun, supra at ___ ( prima facie evidence must first be evidence); see also Markis v. Jolly Jorge's, Inc., 4 Mass. Workers' Comp. Rep. 360, 362 (1990) (date on which benefits awarded, modified, or terminated must be anchored in the evidence).
Despite the concurrence's arguments to the contrary, the majority view of the reviewing board is that de novo hearings require de novo treatment of the proceedings, the decision and of the orders flowing therefrom.
Accordingly, we reverse the administrative judge's ruling on the employee's motion to allow additional medical testimony. We vacate the dismissal of the employee's claim and remand for further findings consistent with this opinion. In the interest of justice and given the passage of time, the judge may take such additional evidence or testimony as is necessary to bring current the determination of the employee's incapacity.
So ordered.
_________________________ Susan Maze-Rothstein Administrative Law Judge
_________________________ Edward P. Kirby Administrative Law Judge
Filed: January 25, 1996.
The majority correctly concludes that the impartial medical report under G.L.c. 152, § 11A was inadequate because it did not provide adequate information for the administrative judge to render an opinion about the employee's medical condition throughout the period of claimed incapacity. I agree with the holding that, under the circumstances of this case, the judge erred as a matter of law in denying the motion for additional medical evidence.
Where it is feasible for the impartial medical examiner to provide required information based upon the medical records provided to him coupled with the employee's verbal history to him and the examination results, and fails to do so, then a judge commits legal error in denying the request for submission of additional medical evidence. Here, despite being provided with "all relevant medical records, medical reports, medical histories" and any other information deemed relevant by the parties and the judge, the impartial medical examiner had no opinion of the employee's condition prior to the date of his examination. (Dep. 31-32.) Such information was required in order for the employee to meet his burden of proof. Thus the lack of a medical opinion of the employee's condition during a period of his claim, coupled with the denial of additional medical evidence, rose to a constitutional deprivation of due process. See Boott Mills v. Bd. of Conciliation and Arbitration, 311 Mass. 223, 227 (1942) (award made where board considered report without affording opportunity to meet such evidence was invalid). Therefore, I agree that the judge erred as a matter of law in denying the motion for inadequacy.
Section 11A requires the employee under penalties to provide all such relevant medical information to the impartial medical examiner. G.L.c. 152, § 11A(2).
It is important to remember that under G.L.c. 152, § 11A, the impartial medical examiner's report is merely "prima facie evidence." That means by definition that it can and should be weighed by the judge in light of all the other evidence in the case. If the Legislature had intended the impartial medical examiner's report to be conclusive on disability issues, it would have so expressly provided. Compare the rejected legislative proposals which would have made the impartial physician's opinion binding: 1991 Senate Doc. No. 38, § 11; 1991 House Doc. No. 1699; 1991 Senate Doc. No. 64, § 11.
As the Supreme Judicial Court has instructed in Scheffler's Case, 419 Mass. 251, 257 (1994):
With specific reference to the degree of disability, which is the issue in this case, the impartial medical examiner ordinarily would be expected to describe the employee's ability to perform certain tasks and to state restrictions on his ability to work. The impartial medical examiner might also relate the medical findings to the requirements of the employee's job and express an opinion that, based on the medical findings, the employee can return to work in some capacity. If that opinion is based on facts which the administrative judge (and ultimately the board) finds are complete and accurate with respect to the requirements of the employee's job, or other work available to the employee, the administrative judge would be required to accord prima facie status to that opinion as well. After giving proper weight to the prima facie and other evidence, the administrative judge would then find the facts and apply appropriate legal standards to determine whether the employee has suffered a loss of earning capacity. (Emphasis added).
In determining the weight to apply to the medical examiner's opinion, the judge may consider the employee's testimony and all other evidence of record. See Cassier v. Contributory Retirement Appeal Bd., 332 Mass. 237, 240-241 (1955); Blanchette v. Contributory Retirement Appeal Bd., 20 Mass. App. Ct. 479, 483 (1985) (denial of causation upheld despite medical panel certification of causal connection). In weighing the impartial medical opinion, the judge may properly consider the employee's testimony regarding his medical course since his industrial injury, the treatment he has received, and his response to it. The judge may consider the doctor's response to deposition questions — the forthrightness and clarity of his answers, the degree of his familiarity with the employee's medical history, and the thoroughness of his examination. The judge may also consider whether the doctor applied the correct legal standard in making his analysis. See Quincy Retirement Bd. v.Contributory Retirement Appeal Bd., 340 Mass. 56, 57-58 (1959) (medical evidence before the board justified award despite medical panel's opinion to the contrary, based on an incorrect legal standard).
I disagree with footnote 3 in the majority opinion. Although there is no right to submit additional medical evidence, § 11A does provide anopportunity to do so, where the report is inadequate or the case complex. Certainly it would be within a judge's discretion to allow additional medical evidence where the impartial examiner incorrectly cites prior medical opinions or where other medical opinions indicate that the medical issue has no generally accepted answer within the medical community. SeeDaubert v. Merrell Dow Pharmaceuticals, Inc., 113 S. Ct. 2786, 125 L. Ed. 2d 469 (1993) (abandoning Frye rule which required general acceptance in the relevant scientific community); Commonwealth v, Smith, 35 Mass. App. Ct. 655, 624 n. 9 (1993); Commonwealth v. Lanigan, 419 Mass. 15, 24-26 (1994) (judge acts as gatekeeper controlling admission of expert evidence; Daubert rule adopted). See also Liacos, Handbook of Massachusetts Evidence, 6th ed., § 7.8 (Acceptability of Scientific Principles, Tests, or Devices) (1994).
Thus the motion for additional medical evidence provides a vehicle for the parties to challenge the foundation, accuracy, and reliability of the impartial medical report. The parties may attach to or incorporate in such motion whatever evidence they see fit, as an offer of proof, on the issues of inadequacy and complexity.
I have three other more minor areas of disagreement with the majority's dicta. First, I disagree that the justification for the death case "opt-out" regulation is a difficulty in obtaining medical comment on the cause of death. It is more likely that such opt-out was provided because of the conflict between G.L.c. 152, § 11A and G.L.c. 46, § 19, the statute which accords prima facie weight to a death certificate. In circumstances of conflicting prima facie evidence, the court has ruled that neither source of information can be accorded prima facie status. The case must then be decided on all the evidence without according any artificial weight. See Boyas v. Raymond, 302 Mass. 519 (1939).
The rationale for not having an impartial examination for a closed period of prior disability is simply economic. Section 11A was adopted to improve efficiency. L. Nason, Summary of Weld-Cellucci Workers' Compensation Bill, at 4 (November 13, 1991). It is not efficient to require a third medical opinion, that of the impartial physician, on such financially limited cases of narrow medical disputes. In such cases each party may submit their own medical opinion.
My last departure from the majority relates to its comments about the judge's order. The judge did not order a termination of benefits on a non-evidentiary date. She merely failed to grant the employee's claim for benefits beyond those already paid by the insurer. The employee had been paid compensation until the judge authorized its termination by conference order filed August 7, 1992. The insurer did not appeal the conference order, seeking a recoupment of benefits. Instead the sole appeal was by the employee. She posited the issue as the extent of her incapacity from August 8, 1992 to the present.
The judge would have acted arbitrarily and capriciously had she addressed an issue not before her, to wit: the extent of incapacity prior to August 8, 1992. Welch v. A.B.F. Systems, 9 Mass. Workers' Comp. Rep. 407, 410 (1995). Her order was based on a factual finding of no incapacity derived from the impartial medical examiner's opinion that ". . . the employee was neither totally nor partially disabled." (Dec. 4.) We are vacating that finding and therefore must vacate the order based upon it. However, if on remand, after the receipt of additional medical evidence, the judge again finds that the employee failed to establish incapacity on and after the date of the last payment, she may correctly enter an order denying further benefits.
In all other respects, including the concluding paragraph, I join in the majority opinion.
________________________ Suzanne E.K. Smith Administrative Law Judge