Opinion
BOARD No. 034032-91
Filed: March 15, 1996
REVIEWING BOARD DECISION
(Judges Wilson, McCarthy, and Fischel)
Judge Fischel has recused herself from the panel at the request of the insurer in order to avoid any possible conflict of interest.
APPEARANCES
James N. Ellis, Jr., Esq., for the employee
Judy D. Eldredge, Esq., for the insurer
The employee appeals from an administrative judge's decision that authorized the insurer to discontinue § 35 weekly incapacity benefits effective January 6, 1994, and to discontinue payment for medical treatment pursuant to § 30. We affirm the decision.
The employee attended school through the twelfth grade and then completed two years of college and three years of art school in his native land of Uruguay. In 1988 the employee, then in his mid-twenties, came to the United States. (Dec. 7.)
In June of 1991, the employee was hired by the Westford Regency Inn as a dishwasher. Eleven days later, while carrying metal trays in the course of his employment, the employee fell and injured his head, neck, and low back. (Dec. 7, 8.)
The insurer initially accepted the case and later filed a complaint to terminate or modify weekly benefits. A conference on the complaint was held before an administrative judge who, on September 22, 1993, issued an order of modification assigning an earning capacity of $120.00 per week and ordering § 35 weekly incapacity benefits from September 22, 1993 and continuing. He also ordered that the insurer provide an interpreter at the § 11A medical examination. The § 11A medical examiner, after taking a history and reviewing reports of treating physicians, chiropractor and physical therapist, opined that the employee suffered a lumosacral sprain superimposed upon antecedent, genetic spondylolysis and Grade I spondylolithesis and had recovered as of January 6, 1994. (Dec. 8; statutory exhibit 1.) After a hearing de novo on the insurer's appeal of the conference order, the administrative judge discontinued weekly benefits and the payment of medical expenses. (Dec. 11.)
On appeal to the reviewing board, the employee contends that the administrative judge erred by failing to exclude from evidence the report of Dr. James S. Broome, the § 11A impartial medical examiner. Central to the employee's postulation is his argument that the insurer's failure to provide an interpreter at the § 11A medical examination, as ordered by the administrative judge, taints the proceeding and requires that the report be excluded from evidence. (Employee's brief, 4-6.) Citing Mattison's Case, 305 Mass. 91, 93 (1940), the employee argues that the medical examiner must avoid favoritism or any sympathetic inclination toward one party as against the other. Additionally, the employee contends that "[t]he setting of the impartial medical evaluation must be `fair' and must avoid the appearance of any impropriety." (Employee's brief, 4.)
Mattison's Case, 305 Mass. 91 (1940), does indeed require that the examiner be impartial, and the employee is entirely correct when he argues that the setting of the medical evaluation must be "fair." See also Martin v. Red Star Express, 9 Mass. Workers' Comp. Rep. ___ (November 21, 1995);Matto v. R.C.A. Service Co., 9 Mass. Workers' Comp. Rep. ___ (December 19, 1995). That being said, upon review of the entire record before us, we are satisfied that the employee's contention that the medical evaluation process was unfair or deficient is unfounded, notwithstanding the absence of an interpreter. The administrative judge carefully addressed the very concerns that the employee now raises on appeal. The judge observed that although the unintentional "non-compliance with an Order is of course a serious matter[, d]eclaring the report of Dr. Broome inadequate or otherwise disqualified because of the failure of the Insurer to comply with an element of the Conference Order . . . is also a serious matter." (Dec. 3-4.) Upon examining § 11A, the judge stated that "[t]he Legislative scheme recognizes only two bases for allowing medical evidence additional to the report of an Impartial Medical Examiner: the inadequacy of the report . . . or the complexities of the medical issues involved[,]" (Dec. 4), and conceded that the inability of an impartial examiner to communicate with an employee would render the doctor's report inadequate. (Dec. 4.) He pointed out that he had provided for an interpreter at the examination "precisely to attempt to avoid having to address and adjudicate the potential issue of whether verbal communication between the Employee and the Impartial Medical Examiner was successfully accomplished." (Dec. 4.) The judge then went on to make carefully detailed findings that support his conclusion that the medical examiner's report was adequate. First, despite the medical examiner's error in recording the length of Mr. Maquiel's employment, the administrative judge correctly determined that: "[a]s was carefully documented by Insurer's counsel during the Hearing, the history of the industrial accident upon which Dr. Broome relied was accurate in all important particulars . . . ." (Dec. 4.) The judge reasoned that effective communication existed between examiner and patient because "the Employee at the Hearing stated that everyone asks him the same questions about the accident and he knows the answers." (Dec. 4-5.) Moreover, he found, "based on the Employee's own testimony, that Dr. Broome asked his questions several times if the Employee had trouble understanding them . . . [and] based on Dr. Broome's testimony . . . the Employee made no answers that were not responsive to the questions asked, (D. 15-16), manifesting that successful communication was occurring . . . ." (Dec. 5.) He explained further that "[a]dditional assurance of successful communication . . . is provided by the Employee's demonstrated ability to communicate concerning everyday matters in English." (Dec. 5.) The employee was able to communicate a little with co-workers, to discuss in English a job offer for a laundry attendant position both on the telephone and in person, and to discuss in English any unexcused absences from work. (Dec. 6.) Another indication of successful communication was "Dr. Broome's extensive experience in [examining and] treating Spanish-speaking patients. . . ." (Dec. 6.) We think it noteworthy as well that the judge quoted Dr. Broom's testimony that he had several years of Spanish at Georgetown University. (Dec. 6.)
The administrative judge ruled that the unintentional non-compliance with the directive to provide an interpreter at the § 11A exam did not, under these circumstances, render the report inadequate and that the medical issues involved in this matter were not complex. (Dec. 7.) Adopting the § 11A medical opinions in part, the judge concluded that as of the date of exam, the employee "had recovered from his lumbosacral strain and had no limitations as to lifting or standing or sitting . . . [and] was not medically disabled." (Dec. 8). It is noteworthy that the administrative judge did not find the employee's testimony as to his physical limitations credible. An administrative judge's findings as to credibility of lay witnesses are final. See Lettich's Case, 403 Mass. 389 (1988).
After considering the judge's painstaking analysis, any lingering doubts we might harbor are dispelled by a look at the transcript. There we discover that the employee's counsel vigorously asserts a construct of unfairness due to lack of an interpreter, but then rejects the insurer's offer to pay for a second exam by Dr. Broome with an interpreter and reasserts his motion to exclude the § 11A report and assign a new impartial examiner. (Tr. 5-10.) On appeal to the reviewing board, the employee renews his challenge to the fairness the medical exam, without disclosing his prior repudiation of the insurer's offer.
Although we might speculate as to whether the employee is doctor shopping, we think that when the smoke and mirrors are cleared away, the employee waived any right to an interpreter when his attorney refused the insurer's offer. Seeing no error in the unique circumstances of this case, we affirm the administrative judge's decision.
We take notice of the employee's alternative claim that the procedures established by G.L.c. 152, § 11A constitute an unconstitutional deprivation of the employee's rights to due process. The reviewing board has concluded that the power to declare laws unconstitutional is beyond our reach. Having exhausted his administrative remedy, the employee is free to pursue this issue in the Massachusetts Appeals Court if he so chooses.
See O'Brien v. Blue Cross/Blue Shield, 9 Mass. Workers' Comp. Rep. 16, 24 (1995), appeal docketed, No. 07058 (SJC October 30, 1995), where we said, "we hardly think that the legislative grant of authority to the reviewing board included the power to declare laws unconstitutional."
So ordered.
_________________________ Administrative Law Judge
_________________________ Administrative Law Judge
Filed: March 15, 1996