The reason given seems to be that the employee made no offer of proof. Although not prohibited from doing so, see Lebrun v. Century Markets, 9 Mass. Workers' Comp. Rep. 692, 694, n. 4 (1995), the party seeking to declare the § 11A report inadequate need not make an offer of proof as to what medicals that party has to support the claim or complaint. The adequacy or not generally depends on the content of the four corners of the report and, if any, the deposition.
Neither the statute nor the regulation designate a specific time that such a motion must be filed. Where information is revealed as a result of the impartial physician's deposition that indicates that the report is inadequate, a motion bringing that to the judge's attention is certainly appropriate. See, e.g., Lebrun v. Century Markets, 9 Mass. Workers' Comp. Rep. 692, 693, 696 (1995) (employee's post-deposition motion for finding of inadequacy should have been allowed, based on doctor's deposition testimony). Otherwise, the deposition would be of limited value, in practical terms.
Id. at 643-644. See also Lebrun v. Century Markets, 9 Mass. Workers' Comp. Rep. 692, 696-697 (1995). In both Mendez and Lebrun, we cited Cook v. Farm Service Stores, Inc., 301 Mass. 564 (1938), for its seminal exploration of the character of prima facie evidence in general, albeit within the context of auditors' reports.
We do not address the issue of § 11A's constitutionality also raised by the employee because it is mooted by our ruling that this case requires additional medical evidence. See Lebrun v. Century Markets, 9 Mass. Worker's Comp. Rep. ___ (1995); see also O'Brien v. Blue Cross/BlueShield, 9 Mass. Workers' Comp. Rep. 16, 25-26 (1995) (for a discussion of due process concerns where no additional medical evidence has been allowed). Section 11A(2) sets out factors that a § 11A report must address including: disability and extent thereof, causal relationship, medical end result, and loss of function, if applicable.