Opinion
BOARD No. 04057393
Filed: December 8, 1997
REVIEWING BOARD DECISION
(Judges Wilson, Fischel and Levine)
APPEARANCES
Honey Polner, Esq. for the employee.
George T. Strzetelski, Esq., for the insurer.
The employee appeals from a decision of an administrative judge who awarded a closed period of § 34 weekly benefits for temporary total incapacity based on a work-related injury to his back. The employee contends that the decision is arbitrary, capricious and contrary to law in many respects. Because we agree that the judge failed to address the employee's allegations of bias on the part of the § 11A impartial medical examiner, we recommit the case for further findings.
The employee injured his back while working on September 27, 1993. Diagnostic testing revealed a central disc herniation at T7-8 with slight impingement of the spinal cord. On March 16, 1994, the employee underwent thoracic surgery. In April 1994, a secondary closure procedure was required due to infection of the surgical wound. (Dec. 5.)
The insurer did not accept the employee's claim. After a § 10A conference on May 17, 1994, the judge ordered the insurer to pay weekly benefits under § 34 from December 23, 1993 to date and continuing. The insurer appealed to a full evidentiary hearing, which took place on September 29, 1994. (Dec. 2.)
On July 21, 1994, the employee was examined pursuant to the provisions of G.L.c. 152, § 11A. The § 11A examiner found no objective abnormalities, stating that the physical examination was unremarkable and the imaging studies showed normal degenerative findings. (Dec. 6.) The doctor opined that the disc protrusion at T7-8 was common and unlikely to be the cause of any symptoms. The doctor opined that the employee was not physically limited in any way, and that he was at a medical end result. (Impartial examiner exhibit.) The § 11A physician could not comment on the employee's medical condition at any time prior to the July 21, 1994 examination. (Impartial Dep. 18.) The judge found the impartial examiner's report to be adequate and denied the employee's motion to introduce additional medical evidence. (Dec. 6.) See § 11A(2).
The judge concluded, based on the employee's testimony and the adopted opinion of the impartial examiner, that the employee had sustained an industrial injury on September 27, 1993, which resulted in the employee's incapacity to work from the date of injury until August 1, 1994. (Dec. 7.) The judge ordered payment of § 34 benefits for that period of incapacity, and that § 30 medical benefits be paid for treatment to the employee's back during the same period. (Dec. 8.)
The employee challenges several aspects of the decision. One warrants recommittal. We agree that the judge did not address with the required specificity the employee's allegations that the § 11A impartial medical examiner was biased against workers' compensation claimants. See Martin v. Red Star Express Lines, 9 Mass. Workers' Comp. Rep. 670, 673-674 (1995) (the judge must specifically address and rule on a motion asserting bias).
In order to assess the employee's allegations of bias, we must set out a more detailed account of the employee's motions to the judge regarding that issue. On December 5, 1994, soon after the deposition of the § 11A medical examiner was completed and the transcript sent to the judge, the employee filed a Motion to Strike Impartial Physician's Report and to Allow Submission of Additional Medical Testimony. In that motion the employee challenged the doctor's approach to the carrying out of his § 11A duties:
[The § 11A examiner] attached to his report medical journal articles which contain conclusions based upon studies of patient groups dissimilar from the employee, namely, magnetic resonance imaging of the lumbar spine and magnetic resonance imaging of the lumbar spine in people without back pain. Although, in the instant case, the employee had complaints of pain and diagnosed pathology of the thoracic spine, [the § 11A examiner] stated these articles were relevant because [they] described the precise condition [the employee] has. Depo. p. 39 line 25 to p. 40 line 2. (See Addendum D) By choosing to include these articles with his report, [the § 11A examiner] also indicated he based his opinions, in part, upon the conclusions they contain rather than upon a truly objective and impartial examination of the employee.
The employee also included with his motion several examples of other § 11A reports authored by and deposition testimony given by this examiner with comments like, "[a]s is common in worker's compensation cases like this, this man claims to have severe and limiting neck pain." The employee, in summary, argued in his motion:
That the impartial report and accompanying publications concerning the employee . . ., when reviewed in conjunction with other reports and testimony by [the § 11A examiner], strongly suggest that [he] is prejudiced against workers' compensation claimants. His reports indicate that rather than conduct true impartial examinations of individuals, he views them as members of a distinct and separate group and attributes to them characteristics typical of individuals with work injuries and/or workers' compensation claims.
After hearing the employee's arguments on the motion on January 17, 1995, the judge denied the employee's motion, without any reference to the employee's arguments of bias. (Dec. 6.)
Fourteen months passed without a decision in the case. On March 20, 1996, the employee filed a Motion to Reopen Hearing Record for Reconsideration of the Previously Denied Employee's Motion to Strike the Impartial Report and to Allow Submission of Additional Medical Testimony. In this motion the employee argued:
[D]uring the period between the Medical Hearing of 1/17/95 and . . . 3/20/96, several review board decisions had been issued which addressed the very same concern raised by the employee, namely, the demonstrated bias of the impartial medical examiner. In particular, the review board in Martin v. Red Star Express, 9 Mass. Workers' Comp. Rep. [670, 673] (November 21, 1995) stated that "Impartiality is the very cornerstone of the § 11A medical examiner system. If bias, partiality, or the appearance of same is at issue, the judge must address it and make findings or a ruling in that regard . . . . Where the appearance of impartiality has been compromised based on facts found, the § 11A examiner's opinion is inadequate, and the judge must allow the introduction of additional medical evidence."
The same holding was applied by the review board in Matto v. RCA Service Company, 9 Mass. Workers' Comp. Report [sic] Rep. [759] (December 19, 1995).
The judge did not allude to this motion for reconsideration in his decision filed five months later, on August 27, 1996.
The employee was correct to draw the judge's attention to our discussion of the bias issue in Martin and Matto. Many months before the judge filed his decision, the reviewing board articulated the requirement that administrative judges make specific findings and rulings on allegations of bias on the part of § 11A examiners. Under these circumstances, we conclude that the judge's failure to set forth his reasoning for denying the employee's original and renewed motions for inadequacy due to bias rendered that part of the decision contrary to law. G.L. c. 152, § 11C.
We reverse the denial of the employee's motion for additional medical evidence and recommit the case for further findings of fact on the issue of the § 11A examiner's bias. If, on recommittal, the judge determines that "the appearance of impartiality has been compromised based on facts found, the § 11A examiner's opinion is inadequate, and the judge must allow the introduction of additional medical evidence." Martin, supra. Upon reaching such a conclusion, the judge on recommittal will be required to reassess the extent of the employee's incapacity, based on a de novo hearing of the employee's testimony and the medical evidence that will then be available for his or her review. If the judge rules that there is no bias, based on sufficient subsidiary findings of fact, the decision will stand as filed.
We note that the judge's order that §§ 13 and 30 medical benefits were payable for the employee's diagnosed conditions from the date of injury through August 1, 1994 does not, as a matter of law, preclude the employee from making a claim for medical benefits from August 2, 1994 and onward. Liability has been established in this case, and the employee is entitled to reasonable and necessary medical treatment for his industrial injury regardless of the status of the employee's incapacity.Walker v. Augat, Inc., 9 Mass. Workers' Comp. Rep. 776, 781 (1995). We find nothing in the record indicating that any post August 1, 1994 medical treatment was actually adjudicated for coverage within § 30. Thus no res judicata bar attaches for any medical benefits except those ordered to be paid.
As a final matter, we address two of the employee's contentions of error that we consider harmless in light of the judge's finding of liability and award of a closed period of § 34 incapacity benefits. First, the employee is correct in asserting error due to the judge's failure to declare the § 11A examiner's opinion inadequate, given the doctor's admitted inability to assess the employee's medical condition prior to his examination on July 21, 1994. (Impartial Dep. 18.) As we ruled inGeorge v. Chelsea Housing Authority, 10 Mass. Workers' Comp. Rep. 22, 26 (1996):
The § 11A physician's opinion as of [July 21, 1994] necessarily left a total absence of evidence on the employee's [medical] 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.
(footnote omitted.) Unlike George, however, the judge in this case awarded the employee exactly what he sought for that "disputed period of disability for which the § 11A doctor had no opinion[;]" namely, § 34 temporary total incapacity benefits from the date of the industrial injury until August 1, 1994, eleven days after the impartial examination. As such, the employee is not aggrieved by the judge's error in handling the "gap" period of disability, and the insurer elected not to appeal. The employee, in effect, urges that we elevate form over substance, which we decline to do.
Second, the employee correctly points out that the August 1, 1994 termination of weekly benefits is not grounded in any evidence adduced at the hearing. "It is elementary that the dates on which compensation begins or ends must have significance in the evidence." Carter v. Shaughnessy Kaplan Rehab. Hospital, 9 Mass. Workers' Comp. Rep. 437, 448 (1995). Nonetheless, the employee is likewise not harmed by this error. There is no more advantageous date to the employee than the date the judge chose for the termination of weekly benefits. The termination date assigned was after the impartial examination, the last conceivable evidentiary date in the record. See Sanchez v. City of Boston, 11 Mass. Workers' Comp. Rep. 235 (1997).
Because the employee was not harmed by either the gap period error or the ungrounded termination date, his arguments as to those errors fail. See Whalen v. Shivek, 326 Mass. 142, 149 (1950); Lenox Education Ass'n v. Labor Relations Comm'n, 393 Mass. 276, 278 (1984) (where party is not aggrieved by an error, that party lacks standing to appeal on that point); Lovejoy, petitioner, 352 Mass. 660, 663 (1967) (party must have a pecuniary interest or personal right at stake in order to have cognizable appeal). Indeed, if anyone was harmed by these errors, it was the insurer, who did not appeal the decision.
The decision is recommitted for further findings on the issue of the § 11A examiner's bias. This assessment shall be conducted de novo, as the administrative judge who filed this decision no longer serves in the department. The judge's finding of liability is affirmed. We reiterate that if the judge on recommittal finds bias on the part of the § 11A examiner, he or she will be required to assess the employee's entire claim of incapacity based on a de novo review of the additional medical evidence and the employee's testimony before the new judge. The judge's findings on the extent of incapacity stand pending resolution of the bias issue.
The case is transferred to the senior judge for reassignment to a new administrative judge.
So ordered.
_____________________ Sara Holmes Wilson Administrative Law Judge
____________________ Carolynn N. Fischel Administrative Law Judge
____________________ Frederick E. Levine Administrative Law Judge
Filed: December 8, 1997