Opinion
11-P-137
11-22-2011
JOHN ERICKSON'S CASE.
NOTICE: Decisions issued by the Appeals Court pursuant to its rule 1:28 are primarily addressed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, rule 1:28 decisions are not circulated to the entire court and, therefore, represent only the views of the panel that decided the case. A summary decision pursuant to rule 1:28, issued after February 25, 2008, may be cited for its persuasive value but, because of the limitations noted above, not as binding precedent.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
In this worker's compensation appeal, the employee, John Erickson, alleges that the administrative judge (AJ) improperly denied his motion to strike the impartial medical report of Dr. Thomas Goss based on Goss's alleged bias against employees. Erickson's allegation of bias rests entirely on Goss's repeated usage, in other cases, of the phrase 'such injuries heal fairly reliably in 4-6 weeks' and of stock paragraphs with details changed to fit particular injuries.
Prepared pursuant to G. L. c. 152, § 11A.
We review the decision of the AJ, as summarily affirmed by the reviewing board of the Department of Industrial Accidents, only to determine if it is arbitrary and capricious or legally erroneous. Scheffler's Case, 419 Mass. 251, 258 (1994). Furthermore, the qualification of a witness to offer an expert opinion is squarely within the AJ's broad discretion. See Leibovich v. Antonellis, 410 Mass. 568, 572 (1991); Commonwealth v. Allen, 40 Mass. App. Ct. 458, 467 (1996). The AJ's ruling on this issue will stand unless it is demonstrated that she abused her discretion. See Commonwealth v. Mahoney, 406 Mass. 843, 852 (1990). When a party maintains, as here, that the opinion of an expert witness, otherwise qualified by training, experience, and knowledge of the facts to render an opinion on a matter relevant to the factual disputes at issue in the trial, should have been excluded because the expert was biased against the employee based on opinions by the expert that were favorable to employers in other cases, this court will defer to the decision by the trial judge, in this case, the AJ, unless it was an 'arbitrary determination, [a] capricious disposition, or [based on] whimsical thinking,' Davis v. Boston Elev. Ry. Co., 235 Mass. 482, 496 (1920), or 'idiosyncratic notions.' Bucchiere v. New England Tel. & Tel. Co., 396 Mass. 639, 642 (1986). Erickson's claim that Goss prepared his medical report in a formulaic manner tends to indicate, if anything, a lack of care and does not create any inference of bias.
The reports of impartial physicians in worker's compensation cases constitute expert opinions. See Higgins's Case, 460 Mass. 50, 61 (2011).
Erickson has made no legal argument based on the care with which Goss prepared his medical report.
In addition, we note that, under the reviewing board's case law regarding the importance of impartiality in this context, whenever an AJ makes a finding that the appearance of impartiality on the part of an impartial physician has been compromised, the AJ is required to find that physician's report inadequate and permit the submission of additional medical evidence. Tallent v. Massachusetts Bay Transp. Authy., 9 Mass. Workers' Comp. Rep. 794, 799 (1995). Such additional evidence was admitted here, albeit due to the complexity of the issues. See G. L. c. 152, § 11A(2). Any concerns regarding Goss's impartiality in the present context appears to have been satisfied by the admission of such additional evidence.
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In addition, Erickson had an opportunity to depose Goss prior to the hearing and failed to do so. G. L. c. 152, § 11A(2). Such a deposition can be used for cross-examination and may be brought to the AJ's attention as indicia of the impartial physician's bias. O'Brien's Case, 424 Mass. 16, 24 (1996). The best approach to root out bias and uncover fabrication and exaggeration on the part of an expert witness is thorough preparation and carefully planned cross-examination. 'Vigorous cross-examination, presentation of contrary evidence, and careful instruction on the burden of proof are the traditional and appropriate means of attacking shaky but admissible evidence.' Commonwealth v. Addy, 79 Mass. App. Ct. 835, 839 (2011), quoting from Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 596 (1993). See, e.g., Commonwealth v. Dubois, 451 Mass. 20, 32-33 (2008). The AJ's denial of Erickson's motion to strike was not arbitrary and capricious.
Decision of the reviewing board affirmed.
By the Court (Grainger, Fecteau & Agnes, JJ.),