Opinion
BOARD No. 01003890
Filed: November 28, 1995
REVIEWING BOARD DECISION
(Judges Maze-Rothstein, Kirby and Smith)
APPEARANCES
Alan S. Pierce, Esq., for the employee.
Matthew F. King, Esq., for the insurer.
The employee appeals from a dismissal of her claim for total temporary incapacity and medical benefits. The judge relied on the report and the deposition testimony of the physician appointed under G.L.c. 152, § 11A. She advanced two equally unsuccessful motions for allowance of additional medical evidence. Among other grounds asserted was that the doctor's failure to render an opinion on secondary related causes of disability made his report inadequate and the medical issues complex. Finding error, we reverse the denial of those motions and vacate the dismissal of the employee's claim. We remand the case for further proceedings consistent with this opinion.
On March 10, 1990, the employee injured her back while unloading a truck at work. She sought treatment and was out of work for two to three weeks. She then returned to work still suffering from pain. The pain did not abate, instead it worsened. The employee missed a few days until April 3, 1992, when she could work no more. (Dec. 3-4.) Her claim for compensation was denied after a § 10A conference held on January 28, 1993. The employee appealed that denial to a hearing de novo. The "lay" hearing took place on July 6, 1993. (Dec. 2.) An orthopedic surgeon conducted a § 11A medical examination on March 28, 1994. (Dec. 5.) He diagnosed a neck and low back sprain causally related to the 1990 industrial accident, but could identify no present related medical disability. (Dec. 6.)
The employee does not challenge the sequence of the "lay" and "medical" hearings in this appeal. See O'Brien v. Blue Cross/Blue Shield, 9 Mass. Workers' Comp. Rep. ___ (January 26, 1995).
After the receipt of the § 11A report, the employee moved for a declaration that the report was inadequate and/or the medical issues complex and challenged the constitutionality of § 11A. (Employee's Ex. 3, Dec. 2.) As grounds the employee cited the § 11A examiner's failure to address all the conditions that complicated her medical disability including alleged pyriformis syndrome and psychological factors. (Dec. 7-8.) The employee also argued inadequacy due to the claimed superficiality of the doctor's brief examination and due to inaccuracies in the report itself. The parties took the deposition of the § 11A doctor on June 23, 1994. The employee filed a second motion for allowance of additional medical evidence. Both motions were denied. (Dec. 7-8, 13.)
Pyriformis syndrome is a pinched nerve in the pyriformis muscle in the back.
The administrative judge filed his decision denying and dismissing the employee's claim on August 9, 1994. In that decision, the judge detailed reasons for denial of the employee's motions under § 11A by corresponding numbered paragraphs on each inadequacy and complexity ground submitted. (Dec. 8-16.) At the outset, the judge observed that although § 11A "raises a serious question of constitutional due process" because it forecloses the introduction of "competent and often helpful [medical] information," he was constrained to follow the maxim that presumes statutes are constitutional. (Dec. 8.) He also voiced distress in assessing a prior period of contested disability in the case where the § 11A assessment did not and could not address that time frame. In this vein the judge commented, "[t]his is a most troubling area of the statute which reveals a significant flaw in the application of § 11A." (Dec. 13.) Nonetheless, the judge concluded:
We recognize, of course, that neither § 11A(2) nor the regulations implementing it expressly require that judges articulate their rationale for rulings on the adequacy of impartial reports or on the complexity of the medical issues. G.L.c. 152, § 11A(2); 452 Code of Mass. Regs. 1.12(5)(a) ("[t]he administrative judge's authorization of additional medical testimony must be in the form of a written finding that such testimony is required due to the complexity of the medical issues involved or the inadequacy of the report of the impartial physician"). (Emphasis added). Compare G.L.c. 152, § 11B.
If I remain true to the dictates of § 11A and accept [the impartial examiner's] opinion as it relates to March 22, 1994 [the date of the examination], I must reject the reports of Dr. Adams, Dr. Ott and others. I make these representations having not read any doctor's opinion on this case except as gleaned from the report and deposition of [the impartial examiner], and my reading of Employee's [motion under § 11A]. (Dec. 15.)
Though not central to our opinion, nor argued by the parties, it seems a reasoned judgement on such a motion would require that supporting documentation attached as an offer of proof should be reviewed.
The employee raises essentially the same issues regarding § 11A on appeal as she raised before the administrative judge. Because it was error to find no inadequacy, we remand the case for submission of additional medical evidence. Ergo, we address only the arguments that lead to this dispositive conclusion.
The allowance of additional medical evidence ordered here makes moot the issue of § 11A's constitutionality. See O'Brien, supra at (discussing due process concerns where no additional medical evidence has been allowed.)
The employee contends that the § 11A report was inadequate due to the fact that the doctor could not render an opinion on the allegedly related secondary medical conditions, i.e., chronic pain syndrome and pyriformis syndrome. (Dec. 7-8.) It is undisputed that there is no mention of these conditions in the § 11A report. The judge found, and we agree, that the § 11A examiner rendered a legally sufficient opinion during his deposition with regard to the claimed pyriformis syndrome. (Dec. 11, Dep. 31-32, 46, 48.) However, regarding the employee's alleged chronic pain syndrome, the § 11A examiner stated that, while he recognized the diagnosis and had made diagnoses of the disorder in the past, he did not treat chronic pain syndrome. He specifically testified as follows:
Were [the employee] my patient, I would refer her for a consultation to an appropriate specialist to rule in or rule out chronic pain syndrome. I would not make the diagnosis myself. . . . Since I haven't made a diagnosis of her of chronic pain syndrome, I don't know if treatment with a psychologist specializing in that would be reasonable.
(Dep. 36.) The judge found, based on this testimony, "[t]he fact that he did not make such a diagnosis means that he believes that it does not exist within this employee. Therefore, I deny the employee's request [to declare the § 11A report inadequate] on this ground." (Dec. 12.)
G.L.c. 152, § 11A(2) requires that the "impartial physician's report shall constitute prima facie evidence of the matters contained therein." The medical issues that the § 11A report must address include disability and extent thereof, causal relationship, medical end result and loss of function, if any. In the instant case, the issue of disability due to a chronic pain syndrome and its causal relation to the 1990 accident was the subject of direct examination during the deposition of the § 11A examiner.
The § 11A(2) medical issues that must be addressed are listed as follows:
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 a 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.
The "medical issues" under each category listed in § 11A(2) can, in any particular case, be multifaceted. See Mendez v. The Foxboro Co., 9 Mass. Workers' Comp. Rep. ___ (October 31, 1995).
There was no objection of the part of the insurer regarding the foundation for the line of questioning in which chronic pain syndrome was addressed. We therefore treat the issue as properly raised.
The doctor's admitted inability to address the employee's chronic pain syndrome should have sounded the alert as to the § 11A report's inadequacy in this regard. Instead, the "dictates of § 11A" were followed even though that medical evidence, once sifted through this statutory sieve, was fundamentally deficient.
For whatever § 11A has done to or for the sufficiency of evidence at hearing, it has not eliminated a judge's discretion to rule that additional medical evidence is warranted due to inadequacies or complexities. G.L.c. 152, § 11A(2). It bears reiteration that judicial discretion,
. . . imports the exercise of discriminating judgment within the bounds of reason . . . enlightened by intelligence and learning, controlled by sound principles of law, of firm courage combined with the calmness of a cool mind . . . [not] moved by any kind of influence save alone the overwhelming passion to do that which is just. Saez v. Raytheon Corp., 7 Mass. Workers' Comp. Rep. 20, 22 (1993) quoting, Davis v. Boston Elevated Railway, 235 Mass. 482, 496-497 (1920).
Regardless of the actual merits of a case, the evidentiary process that exists should add to and 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. Aime v. Commonwealth, 414 Mass. 667, 682 (1993). Under § 11A(2) the power to rule on adequacy and complexity makes the judge the gate keeper of the accuracy of the medical evidence. Said watch was not taken up here.
Rather, § 11A was treated as though it sanctioned, indeed dictated, reliance on insufficient information as the basis for legal conclusions. The chronic pain aspect of the § 11A examiner's deposition testimony states only that he did not and would not make a diagnosis, but would have to refer the employee out for a proper diagnosis. This opinion is clearly inadequate as a matter of law, because it addresses none of the requisite § 11A(2)(i)(iii) factors as they relate to the employee's chronic pain condition. See supra n. 4.
For the purposes of this discussion, we will allow, without deciding, that the deposition testimony in this case was part of and indivisible from the report. We do not reach this question as it is not necessary to the disposition of this case.
Failure to address any one of the § 11A(2)(i)(iii) factors would, of course, be sufficient for a ruling of inadequacy.
Further, this opinion was accorded prima facie weight under § 11A. The question arises, was it legally sufficient to be so characterized? This much is clear: whatever the doctor's testimony was, it was not prima facie evidence. In Cook v. Farm Services Stores, Inc., 301 Mass. 564 (1938), the fundamental precepts behind prima facie evidence were articulated. The court stated:
Cook's treatment of prima facie evidence was adopted and applied to the workers' compensation setting in Anderson's Case, 373 Mass. 813, 817 (1977), where the court considered the use of that concept in the context of § 7A. We see no distinction between the prima facie evidence spoken of in § 7A and that in § 11A.
[P]rima facie evidence is "evidence," it remains evidence throughout the trial, and is entitled to be weighed like any other evidence upon any question of fact to which it is relevant. [Citations omitted.] Prima facie evidence means evidence which not only remains throughout the trial but has up to a certain point an artificial legal force which compels the conclusion that the evidence is true. . . .
Cook at 566. Next, "certain points" at which prima facie evidence loses its special status were detailed. Id. However, we stop at the first clause of the above definition. Simply, "prima facie evidence isevidence." Id. The § 11A doctor's testimony, that "I would not make the diagnosis [of chronic pain]," "I would refer her out for a diagnosis [of chronic pain]," and "I have not made a diagnosis [of chronic pain, so] I don't know if treatment with a psychologist specializing in that would be reasonable" cannot, within reason or logic, be read to say the doctor "believes it [the diagnosis of chronic pain] does not exist within the employee." (Dep. 36, Dec. 12.) That is an arbitrary inference. The doctor's statement merely evidences a lack of opportunity, in this particular case, and an unwillingness, in general, to handle chronic pain syndrome. Plainly, because this testimony is not evidence of the employee's medical condition, it cannot be prima facie evidence of the employee's medical condition with its attendant, "artificial legal force and compelling effect." Id.
The nonexistent opinion on the alleged chronic pain syndrome is thus both inadequate under § 11A(2)(i)(iii) and is not evidence of that condition upon which a judge may rely or use as a basis for general findings. In an attempt to "remain true to the dictates of § 11A," blinders were unnecessarily put on and in the resulting obstructed view the absence of fact was seen as proven fact. Proper application of § 11A calls for a discerning application of judicial discretion not a genuflection. Section 11A has been structured to allow for this vital adjudicatory function. The denial of the employee's motions were contrary to law.
We similarly relieve the judge's angst regarding the contested period of prior disability not addressed by the § 11A medical opinion. Where a judge is persuaded that there is an absence of necessary medical evidence to adjudicate a contested period of incapacity, that judge shall make a ruling of inadequacy and fill the gap with additional medical evidence which in the end result, may or may not overcome the prima facie value of the time frame properly covered by the § 11A opinion.
Accordingly, we reverse the judge's ruling on the employee's motions to declare the impartial medical examiner's report inadequate and the medical issues complex. Additional medical evidence shall be allowed. We vacate the denial and dismissal of the employee's claim. We remand this case for further proceedings consistent with this opinion. G.L.c. 152, § 11C.
So ordered.
_________________________ Susan Maze-Rothstein Administrative Law Judge
_________________________ Edward P. Kirby Administrative Law Judge
_________________________ Suzanne E.K. Smith Administrative Law Judge
Filed: November 28, 1995