Opinion
BOARD No. 03174491
Filed: February 21, 1997
REVIEWING BOARD DECISION
(Judges Maze-Rothstein, McCarthy and Smith)
APPEARANCES
John F. McGrail, Esq., for the employee.
Charles W. Dixon, Esq., for the self-insurer at hearing and on appeal.
Karen Loughlin, Esq., for the self-insurer at hearing.
This matter is before the reviewing board on the self-insurer's appeal from a decision awarding the employee a closed period of § 34 temporary total incapacity compensation, and ongoing § 35 partial benefits with related § 30 medical benefits. As a basis for its appeal, the self-insurer charges that the § 11A examiner's opinion was tainted by bias and was therefore legally unreliable. We find no error in the decision on the liability finding, the award of § 34 benefits, or in the handling of the bias issue. We, however, remand for further findings on the extent of incapacity after the closed period of § 34 benefits.
The insurer also argues that it is entitled to an offset for the first six months of compensation payments under the employer's disability income policy provisions. This issue is not sufficiently developed for appellate review. Moreover, there was no ruling made on the question at hearing or in the decision. It is, of course, open to the self-insurer to file claim in order to resolve this issue. See G.L.c. 152, § 10 (1).
The employee began working for Norton, the employer, in 1959 as a pipe fitter and plumber. On the June 7, 1991 injury date, he worked as an employee-assistance counselor helping fellow employees with drug and alcohol problems and managed employer sponsored recreational programs. (Dec. 6.) He held this position for seventeen years until the injury date, his last day of work. (Dec. 6.)
The facts found that are pertinent to this appeal follow. From February 1991, the employee was required to assist the employer in preparing a defense against a discrimination claim filed against it by a fellow employee. (Dec. 4.) The employee's court testimony was scheduled, postponed and rescheduled many times. The employee initially felt "uncomfortable" about the prospect of testifying against a fellow employee. (Dec. 7.) As trial dates came and went, the employee became "frustrated and upset" and then "very angry." (Dec. 8-9). On June 7, 1991, after the employee left the self-insurer's law offices, he went to the court house for the rescheduled proceedings, became ill, and suffered a myocardial infarction. (Dec. 10-11, 23.).
The self-insurer did not accept the employee's claim for § 734 benefits. The case proceeded to a § 10A conference where the judge denied the claim. The employee appealed to a de novo hearing.
On March 8, 1993, Dr. Henri Cuenoud performed a medical examination pursuant to the provisions of 11A. The judge heard lay testimony on April 29, 1993. At hearing, the employee raised the issues of §§ 34, 13 and 30. The self-insurer denied that the employee suffered an industrial injury arising out of and in the course of his employment and refused to pay workers' compensation benefits.
Whenever a claim or complaint involves a dispute over medical issues a § 11A medical examination is required. G.L.c. 152, § 11A. But see, 452 Code Mass. Regs. 1. 10 (5) (6) (7).
At a May 18, 1993 "medical hearing", the judge denied the self-insurer's motion to submit additional medical evidence ruling that the report was adequate and the medical issues were not complex. (Dec. 16.)
Medical hearings were established by regulation. Code Mass. Regs. 1. 11 (1) (d). That promulgating regulation was held to be in "direct contradiction to the [procedural] sequence fixed by § 11A. O'Brien, v. Blue Cross/Blue Shield, 9 Mass. Workers' Comp. Rep. 16, 21 (1995); O'Brien's Case, 424 Mass. 16 (1996) (decided on other grounds).
The self-insurer deposed Dr. Cuenoud on June 23, 1993. (Dec. 4.) The doctor testified that he had spoken to the employee by telephone on June 22, 1993 in preparation for the deposition. On the basis of this revelation, the self-insurer made two motions. It moved that the report and deposition be stricken from the record and renewed its motion for additional medical evidence. (Dec. 15-16; Self-Insurer's Brief, at 2; Employee's Brief, at 3; see Cuenoud Dep. 16-27.) Based on the unusual circumstances of the doctor's post-exam telephone conversation with the employee, the prior ruling on the § 11A examiner's report was reversed. The self-insurer's motion for additional medical evidence was allowed. Neither Dr. Cuenoud's report nor his deposition was stricken. (Dec. 16.) The self-insurer then deposed Drs. David Lyons, Elliot Sagall, and Paul Hart.
In the decision, the judge relied on the opinions of Dr. Lyons, and Dr. Cuenoud, the § 11A examiner, to find that because of the "stress experienced by [the employee] in anticipation of testifying for the Employer in court proceedings on June 7, 1991 the Employee suffered a myocardial infarction that arose out of and during the course of his employment." (Dec. 23.) Also, based on the same medical expertise, a period of work-related total disability was found, followed by continued partial disability. Id. The employee's medical treatment was deemed reasonable and necessary. (Dec. 23-24.) Benefits were ordered in accordance with these findings. (Dec. 24.) We have the self-insurer's appeal from this decision.
It is well settled that an administrative judge has the authority to determine the probative value of expert medical testimony and he may adopt all or part of one doctor's opinion over another. Saravia v. General Electric Co., 8 Mass. Workers' Comp. Rep. 161, 162 (1994), citing Amon's Case, 315 Mass. 210 (1943); Martins v. Longview Fibre Co., 7 Mass. Workers' Comp. Rep. 72, 73 (1993). Thus, we reject the self-insurer's assertion of error in the finding of causally related total disability from June 8, 1991 to January 14, 1992, when the employee's cardiac rehabilitation program ended. The decision was amply supported by the evidence. (Dec. 23; see Lyons Dep. 39, 52-53, 62; Cuenoud Dep. 63.) We, therefore, affirm the liability finding and the order for a closed period of § 34 temporary total weekly compensation.
We note that the judge's causation finding was not contradicted by any of the four experts deposed. (Dec. 13-14, 17, 19.)
We, however, recommit for further findings on the extent of incapacity thereafter. A judge's decision must contain conclusions adequately supported by subsidiary findings. SeeCrawford's Case, 340 Mass. 719, 720 — 721 (1960). Findings with respect to the extent of continuing incapacity must be sufficiently definite and specific so the reviewing board can properly perform its appellate function. See Ballard's Case, 13 Mass. App. Ct. 1068, 1068-1069 (1982); Praetz v. Factory Mut. Eng'g. Research, 7 Mass. Workers' Comp. Rep. 45, 46-47 (1993). Where essential findings are lacking, imprecise or internally inconsistent, the decision cannot stand. Nelson v. ADAP/RITE AID Auto Place, 10 Mass. Workers' Comp. Rep. ___ (June 5, 1996).
The judge adopted the opinions of both Drs. Lyons and Cuenoud. These opinions were not entirely consistent on the issue of ongoing disability. Dr. Lyons opined that as of January 1992 the employee could return to part time work, contingent on his not returning to a job that "involves stress" or requires him "to testify on occasion in court proceedings." (Dec. 18, 22; see Lyons Dep. 60, 63-64, 66-70). Dr. Cuenoud, on the other hand, opined that employee could not return to his previous work or a job with stress. (Dep. 63-66). We, thus recommit for findings to clarify this point in adopting both medical opinions.
Dr. Lyons also opined the employee could tolerate some degree of ordinary stress at work or engage in "general activities." (Lyons Dep. 40, 60-61.) He did not believe the employee was physically disabled from a purely cardiac standpoint but from dealing with a certain kind of stress. (Dec. 18; Lyons Dep. 48-49.)
On remand, the judge shall make findings on what the residual limitations are and how they impact on the employee's ability to perform work. See Scheffler's Case, 419 Mass. 256, 260-261 (1994); G.L.c. 152, § 35D(4). These further findings should be made from and after January 14, 1992 when the employee's total incapacity ended. See (Lyons Dep. 62).
The insurer next contends that the report and deposition of the § 11A physician should have been stricken and/or a new § 11A physician appointed. It argues vigorously that the telephone conversation between the doctor and the employee prior to the deposition impermissibly breached the § 11A impartiality requirement, tainting the whole proceeding. (Insurer's Brief, at 3-13.).
We agree with the self-insurer that it is the right of every litigant to have a hearing as fair, free, and impartial as the lot of humanity will permit. See Tallent v. M.B.T.A., 9 Mass. Workers' Comp. Reg. 794, 799 (1995). Impartiality of a § 11A physician is a strict requirement and must not be subject to question. See Martin v. Red Star Express Lines, 9 Mass. Workers' Comp. Rep. 670, 673 (1995). The integrity of a case's disposition is as essential to public confidence as the disposition itself, and to the extent the opposite is true, the system is undermined. Id., citingIn the Matter of Troy, 364 Mass. 15, 71 (1973); seeTallent, supra at 799.
On the record before us, we discern no compelling inference that bias fatally contaminated this case ab initio, requiring the allowance of the insurer's motion to strike the § 11A opinion. While it is clear the phone call between the doctor and the employee should not have occurred, the judge took sufficient steps to guard against any possible bias or allegations of prejudice when he reversed his earlier ruling and allowed the insurer's motion for additional medical evidence. (Dec. 16; Tr. dated May 18, 1993, at 9.) The self-insurer then had the opportunity to depose three other expert physicians and to submit their testimony into evidence. Moreover, the insurer had the opportunity to examine the § 11A doctor on the circumstances surrounding the phone call, to explore his motives for making it, and to develop any evidence of bias, prejudice, or its appearance. (Cuenoud Dep. 16, 27, 30-31, 41-43; see Dep. 45-49.) Furthermore, even if the report and deposition of the § 11A doctor were stricken, the testimony of Dr. Lyons, standing alone, supports the judge's causation and total incapacity conclusions. (Lyons Dep. 11, 15-16, 36, 38-39, 42-47.) The § 11A medical opinion was similar and could be viewed as cumulative. (Cuenoud Dep. 34-35, 51-52, 55.)
Dr. Cuenoud testified that he made the call to refresh his memory and to do "the best job possible" and not to influence his opinion. (Cuenoud Dep. 45-49.) He stated, as a reason, that he had not preserved his handwritten notes of the medical examination. (Dep. 47-48).
Under the facts of this case, we find the judge fashioned an appropriate remedy and preserved the integrity of the judicial process when he allowed the self-insurer's motion to submit additional medical evidence. The judge exhibited reasoned decision making within the meaning of Scheffler, 419 Mass. at 256. The judge did not err when he declined to strike the § 11A opinion. Neither the § 11A medical opinion nor the record in this case compel such a remedy as a matter of law. Compare Tallent v. M.B.T.A., 9 Mass. Workers' Comp. Rep. at 799-800 (where appearance of impartiality compromised by § 11A physician's own testimony, under unique combinations of facts in that case, judge must grant motion for inadequacy and allow other medical evidence); Martin v. Red Star Express Lines, 9 Mass. Workers' Comp. Rep. at 673.
We recommit this case for further findings on the extent of incapacity after January 14, 1992 consistent with this opinion. In the interest of justice and due to the passage of time, further evidence may be taken on remand if deemed necessary.
We award an attorney's fee in the amount of $1,148.01 pursuant to 13A(6).
So ordered.
_________________________ Susan Maze-Rothstein Administrative Law Judge
__________________________ William A. McCarthy Administrative Law Judge
__________________________ Suzanne E.K. Smith Administrative Law Judge
February 21, 1997