Opinion
No. 11–P–735.
2012-06-12
James BENNETT'S CASE.
By the Court (GREEN, BROWN, & AGNES, JJ.).
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
The self-insured employer, the city of Waltham, appeals from a decision of the reviewing board of the Department of Industrial Accidents (DIA) summarily affirming the decision of an administrative judge awarding the employee, James Bennett, ongoing temporary total disability benefits. We affirm.
Background. The employee testified that on November 15, 2007, while climbing into a truck at work, he fell backward from approximately four feet and caught his right forefoot, causing it to forcefully hyperextend. The pain in his foot, while initially minimal, progressed over the next weeks and ultimately the employee was diagnosed with a “Lis Franc” fracture. X-rays also revealed changes consistent with “Charcot foot,” which can develop in diabetics with peripheral neuropathy with or without additional trauma. The employee has a somewhat complicated past medical history, including diabetes with bilateral peripheral neuropathy.
The impartial medical examiner (IME), Dr. Green, a podiatrist, opined that the Charcot foot likely preceded the workplace injury but that it was not acute before the work injury because the records reflect there was no redness or acute swelling. He opined that the four-foot fall from the truck while the foot was stuck in the stirrup causing extreme plantar flexion is a classic mechanism of injury for a Lis Franc fracture. He further opined that the workplace injury made his probably pre-existing Charcot disease much worse, that the injury is a major cause of the employee's current condition, and more than fifty percent at fault for causing his condition. The record also contains a note from the employee's surgeon, Dr. Basile, stating that he had reviewed the employee's prior medical records and x-rays and “feel that it is highly likely that the initial trauma led to the Charcot deformity.”
The administrative judge found the employee's version of the incident on November 15, 2007, to be credible. He further found the opinions of the impartial examiner, Dr. Green, most credible and compelling. He concluded that the employee sustained a personal injury in the course of his employment on November 15, 2007, and that the employee has “severe Charcot joint disease status post fracture right foot” that is causally related to the employment.
Discussion. Where, as here, the reviewing board summarily affirms, we examine the decision of the administrative judge to determine whether the action of the board was correct. Coggin v. Massachusetts Parole Bd., 42 Mass.App.Ct. 584, 587 (1997). We note at the outset that “[a]ssessments of credibility ... are the exclusive function of the administrative judge,” and we will not disturb the judge's findings which, as here, “are ‘reasonably deduced from the evidence and the rational inferences of which it was susceptible.’ “ Brommage's Case, 75 Mass.App.Ct. 825, 827–828 (2010), quoting from Pilon's Case, 69 Mass.App.Ct. 167, 169 (2007).
Pursuant to G.L.c. 152, § 1(7A), “[i]f a compensable injury or disease combines with a pre-existing condition, which resulted from an injury or disease not compensable under this chapter, to cause or prolong disability or a need for treatment, the resultant condition shall be compensable only to the extent such compensable injury or disease remains a major but not necessarily predominant cause of disability or need for treatment.” The employer raised § 1(7A) as an affirmative defense and now argues that Dr. Green's opinion provided insufficient support for the judge's conclusion that the work incident is a major cause of disability or need for treatment. The employer points to Stewart's Case, 74 Mass.App.Ct. 919 (2009), where we remanded to the administrative judge for further findings because the IME was never asked and failed to opine whether the work injury was a major cause of the employee's condition when considered in relation to the employee's preexisting conditions. Here, however, counsel for the employer inquired extensively at Dr. Green's deposition as to whether the workplace injury was “the major cause” or “a major cause” of the employee's disability. Dr. Green's opinion on this issue was not equivocal or inconsistent. Dr. Green acknowledged that the employee likely had some Charcot changes to his foot prior to the injury. However, he concluded that any Charcot process was mild and only became acute after the injury described by the employee. While he declined to opine that the work injury was “ the ” major cause of the employee's condition, Dr. Green testified that it was “ a major or predominant contributing cause of [the employee's] condition.” Dr. Green explained that the injury was “more than 50 percent at fault for or the cause of his condition.” On this evidence, we cannot reasonably say that Dr. Green's testimony was insufficient to support the judge's conclusion.
Next, the self-insurer argues that it was error to rely on Dr. Green's opinion because one of his associates, Dr. Etskovitz, had previously treated and continues to treat the employee. Dr. Green admitted that although they do not work in the same office, he essentially is Dr. Etskovitz's boss. It was Dr. Etskovitz who referred the employee to Dr. Basile, who performed multiple surgeries on the employee's foot. Dr. Etskovitz, in addition to the employee's primary care physician, Dr. Hackett, and his surgeon, Dr. Basile, have each written letters opining that his condition stems from the work injury.
The administrative judge was aware of the bias issue and even expressed his concerns at the outset of the hearing that the IME report could be deemed unreliable as a result of bias. At his deposition, while admitting that Dr. Etskovitz's ability to attract and retain patients could affect Dr. Green financially, Dr. Green testified that he did not feel conflicted in evaluating the employee because physicians critically evaluate their coworkers all the time. Dr. Green asserted he was able to be objective in his evaluation and disagree with Dr. Etskovitz where necessary. The administrative judge opened the medical evidence, thereby minimizing the risk of bias. Indeed, the insurer's expert relied on Dr. Etskovitz's notes memorializing the employee's denial of any trauma in concluding that there was no causal connection between any industrial accident and the employee's condition. In the circumstances, we consider the question of bias to go to weight and credibility rather than admissibility and are satisfied that the administrative judge considered it carefully.
We note, however, that there may be situations in which the indicia of bias are so strong that opening the record as to medical evidence will not be a sufficient remedy. The reviewing board has stated that “[i]mpartiality is the very cornerstone of the § 11A medical examiner system.” Barrett v. Kiewit Atkinson Cashman, 19 Mass. Workers' Comp. Rep. 286, 289 (2005), quoting from Martin v. Red Star Express, 9 Mass. Workers' Comp. Rep. 670, 673 (1995). These same concerns animated several Supreme Judicial Court opinions under the previous incarnation of the workers' compensation act. See, e.g., Latorre's Case, 302 Mass. 24, 27 (1938) (impartial medical examiners must avoid “even the appearances” of partiality or interest); Mattison's Case, 305 Mass. 91, 93 (1940) (noting that impartial medical examiner would have been disqualified if he had been employed or consulted by the employee or insurer in respect to injury in question). In this light, we note that the reviewing board has found that, in certain situations, further measures were needed to remedy issues of partiality. See Barrett, 19 Mass. Workers' Comp. at 290 (striking impartial medical examiner's report when he received report from employee's vocational expert); Smith v. Partners Healthcare System, Inc., 24 Mass. Workers' Comp. Rep. 43, 45 n. 5 (2010) (“[T]he charge of bias, by its nature, invites nothing less than a motion to strike”). But see Paganelli v. Massachusetts Turnpike Authy., 21 Mass. Workers' Comp. Rep. 9, 17 (2007) (noting that “the bias of a witness goes only to his credibility, not the admissibility of [the IME's] opinion”).
We note that we owe the opinions of the reviewing board substantial deference concerning reasonable interpretations of the Workers' Compensation Act and regulations promulgated thereunder. See Gateley's Case, 415 Mass. 397, 399 (1993).
These concerns were notably more pressing under that earlier statutory scheme, under which the diagnosis by the majority of a panel of impartial medical examiners was “binding on the parties.” Latorre's Case, 302 Mass at 26. See also Meunier's Case, 319 Mass. 421, 427 (1946) (finding binding nature of panel's diagnosis unconstitutional).
The DIA may wish to consider issuing an advisory to the members of its impartial expert list reminding them of their disclosure obligations in the event of a potential conflict of interest.
However, we need not prognosticate about other situations in which opening the medical records will be insufficient. On this record, where Dr. Green's opinion was scrutinized for bias and the medical records were opened, there was no error requiring reversal or remand.
Decision of reviewing board affirmed.