Summary
In Martin, the employee's incapacity benefits were terminated in a hearing decision, in which the judge adopted the opinion of a § 11A physician, who had moved out of the Commonwealth and was unavailable to be deposed.
Summary of this case from Tejada v. Copley Square Hotel, NoOpinion
BOARD No. 51727-93
Filed: December 17, 1997
REVIEWING BOARD DECISION
(Judges Fischel, Levine and Wilson)
APPEARANCES
Ronald W. Stoia, Esq., for the employee.
Edward F. McGourty, Esq., for the insurer on review.
The employee contends that her due process rights were abridged by a decision terminating her incapacity compensation based upon the opinion of a § 11A examiner who was unavailable for cross-examination. Because we conclude the decision was based upon medical opinion which should not have been admitted into evidence, we reverse the decision and remand for further findings consistent with this opinion.
We briefly summarize the background of the case. The employee, who attended school through the ninth grade but later obtained her G.E.D., was employed as a nurse's aide for 25 years. (Dec. 3.) On October 17, 1993, she sustained an injury to her back. Id. After initial medical treatment she returned to work at lighter duty with restrictions until early December 1993, when her back pain became severe while she was helping to lift a patient. Id.
The insurer paid § 34 temporary total incapacity benefits from December 3, 1993, her last day of work, and continuing. (Dec. 2.) Subsequently, the insurer filed a complaint for modification or discontinuance which was denied at conference. Id. The insurer appealed to a hearing de novo and raised the issue of incapacity and the extent thereof.
The § 11A examiner, Dr. Edward Mulcahy, an orthopedic surgeon, examined the employee on December 26, 1995. He felt she was then fit to return to work without restrictions. (Dec. 4.) (Statutory Exhibit 1.) The employee sought to depose Dr. Mulcahy for purposes of cross-examination. General Laws c. 152, § 11A(2), specifically provides that all parties have an unconditional right to cross-examine the § 11A examiner. See n. 1, supra.
General Laws c. 152, § 11A(2), provides in pertinent part:
. . . [the] impartial physician's report shall constitute prima facie evidence of the matters contained therein . . . The report of the impartial medical examiner shall be admitted into evidence at the hearing. Either party shall have the right to engage the impartial medical examiner to be deposed for purposes of cross examination.
(Emphasis added.)
The judge found that Dr. Mulcahy, who had moved out of state, was unavailable for a deposition. (Dec. 2.) The employee moved to strike Dr. Mulchay's report from the record because of the lack of opportunity to cross-examine. Id.
The insurer, who doesn't dispute inavailability, suggested alternate means to cross-examine, such as a telephonic deposition, but the judge did not find any of the suggestions practicable. (Dec. 2.) Depositions may be taken in other jurisdiction. See c. 152, § 11B.
The administrative judge noted that 452 CMR 1.12 (5)(c), while requiring the impartial report to be found inadequate under such circumstances, nonetheless required the report of the unavailable physician to be admitted into evidence and to retain its prima facie character. Id. The administrative judge expressed his "concerns about Dr. Mulcahy's report remaining in evidence where he has made himself unavailable for cross-examination by a party wishing to challenge what he has stated on 'direct.'" Id.
452 CMR 1.12 (5) (c) provides:
Where an impartial medical examiner who has submitted his or her report is rendered unavailable, or makes him or herself unavailable for deposition, either party may file a motion seeking a ruling that the impartial medical examiner is unavailable. A ruling of unavailability shall mean the impartial medical examiner's report is inadequate and that additional medical evidence shall be allowed. Upon such a ruling, the administrative judge shall allow a reasonable extension of time for submission of such additional medical evidence, not to exceed 45 days. The impartial physician's submitted report, however, shall be admitted into evidence at the hearing and shall retain its prima facie character not withstanding the finding of inadequacy.
(Emphasis added). Compare 452 Code Mass. Rep. 1.11 (6):
. . . Pursuant to 452 CMR 1.12 (5), any party may, for the purpose of cross-examination, depose the physician who prepared an admitted medical report. After such cross-examination, the parties may conduct further examination pursuant to the rules of evidence applied in courts of the Commonwealth.
Pursuant to 452 CMR 1.12(5)(c), the judge allowed additional medical evidence. Id. The employee then submitted the April 3, 1996 report of her treating physician, Dr. Douglas Bentley, who diagnosed acute lumbosacral strain, acute sacroiliac joint strain and central disc herniation at L5-S1, which permanently and totally disabled the employee from work as a nurse's aide because of the repetitive bending, lifting, and carrying associated with the job. (Dec. 2, 4.) Dr. Bentley felt she could perform very light duty in a sedentary occupation, with restrictions. (Dec. 4.)
The judge also considered the May 5, 1995 and September 22, 1995 reports of the insurer's examiner, Dr. Robert Chernack, whose later report cleared the employee to return to work without restriction. (Dec. 1, 4.) (Insurer's Ex. 1, 2.)
In rendering his decision, the judge weighed the evidence of the three medical experts, noting that Dr. Bentley "stands alone" in diagnosing "a herniated disc despite an MRI report which merely indicated a protrusion" and in opining that the employee was disabled for nurse's aide duties. (Dec. 5.) The judge found Dr. Bentley's opinion did not successfully "rebut that which was established by the Mulcahy report" and adopted Dr. Mulcahy's opinion that the work-related lumbar strain brought about a temporary disability. Id. He then terminated the employee's weekly § 34 incapacity compensation as of January 9, 1996, the date of the § 11A report. (Dec. 5-6.)
The employee raises two issues on appeal. First, she argues that her due process rights were violated when the judge relied on a § 11A opinion not subject to cross-examination. Secondly, she contends that Dr. Chernack's reports were not properly submitted into evidence.
It is axiomatic that the requirements of due process apply to proceedings at the Department of Industrial Accidents. Haley's Case, 356 Mass. 678, 682 (1970); Meunier's Case, 319 Mass. 421, 426-427 (1946). The right to cross-examination is fundamental to the exercise of those rights. Haley's Case, supra at 681 (due process at board proceedings translates into an entitlement that all parties have the opportunity to present evidence, to examine and cross-examine witnesses, to know what evidence is presented against them, to have the opportunity to rebut such evidence, to otherwise fully participate at the hearing, and to argue all issues of fact and law involved in the hearing).
As a result of statutory changes enacted by St. 1991, c. 398, § 30, amending G.L.c. 152, § 11A, parties no longer have an absolute right to submit their own medical expert opinion into evidence, and the opinion of the § 11A impartial examiner may well be the only medical evidence admitted at hearing. See G.L.c. 152, § 11A(2). While the Supreme Judicial Court has found § 11A facially constitutional, it has cautioned that care must be taken in its application to prevent due process problems. O'Brien's Case, 424 Mass. 16, 23 (1996). The court stated, "[I]n any case where . . . procedures still fail to offer a party an opportunity to present testimony necessary to present fairly the medical issues, there then might well be failure of due process as applied in that case." O'Brien's Case, supra at 23.
General Laws c. 152, § 11A(2) provides, in pertinent part:
When any claim or complaint involving a dispute over medical issues is the subject of an appeal of a conference order pursuant to section ten A, the parties shall agree upon an impartial medical examiner . . .
* * *
Nothwithstanding any general or special law to the contrary, no additional medical reports or depositions to any physicians shall be allowed by right to any party. . . .
Given that the § 11A(2) examiner's opinion may be the only medical evidence, it is essential that due process rights are not foreclosed so that fair and accurate determinations, to which the parties are entitled, are made. See Goodall v. Friendly Ice Cream, 11 Mass. Workers' Comp. Rep. (July 25, 1997), citing Aime v. Commonwealth, 414 Mass. 667, 682 (1993) (section 11A must be used in a way that furthers the accuracy of the adjudicatory process);Miller v. Metropolition Dist. Comm'n, 11 Mass. Workers' Comp. Rep. ___ (July 9, 1997).
One of the safeguards to due process is the right to depose the § 11A examiner for purposes of cross-examination. O'Brien's Case, supra at 23; G.L.c. 152, § 11A(2). Fairness requires that the report of the § 11A examiner "is open to . . . thoroughgoing challenge" by means of "the deposition and cross-examination procedure [which] gives a party the. . . 'opportunity to attack, discredit or refute the report.'" O'Brien's Case, supra at 24. "In any case where that opportunity [to depose and cross-examine the § 11A impartial] is insufficient, the statutory scheme may work a deprivation of due process as applied." Id. at 24.
452 CMR 1.12(5)(c) provides that where a judge finds the § 11A physician unavailable for cross-examination, and the report thus inadequate, the report shall nonetheless "be admitted into evidence and retain its prima facie character notwithstanding the finding of inadequacy." 452 CMR 1.12 (5)(c). The regulation directly contradicts the statutory right to cross examine set forth in § 11A(2). Because application of the statutory right to depose the § 11A examiner is contravened by enforcement of the regulation, we are prohibited from applying it in this case. See G.L.c. 152, § 5. Therefore, we report the contradiction between the regulation and the statute to the Commissioner. See Appendix A; G.L.c. 152, § 5; see also Corriveau's Case, 43 Mass. App. Ct. 924 (1997), 10 Mass. Workers' Comp. Rep. 92 (1996).
General Laws c. 152, § 5 (St. 1991. c. 398, § 17), provides, in pertinent part:
Neither an administrative judge nor the reviewing board shall have the authority to repeal, revoke, or otherwise set aside a regulation promulgated by the commissioner; provided, however, that if in any proceeding within the division of dispute resolution it is found that the application of any section of this chapter is made impossible by the enforcement of any particular regulation, the administrative judge or reviewing board shall not apply such proceeding only. In any case in which a regulation is not applied herein provided, the administrative judge or reviewing board shall, on or before the date of the issuance of the decision, inform the commissioner in writing of the explicit contradiction found between the regulation and this chapter.
The right to depose and cross-examine the § 11A examiner is an essential due process safeguard. See O'Brien's Case, supra at 23, 24; Goodall, supra (§ 11A must further the accuracy of the adjudicatory process); Mendonca v. Hillhaven Hallmark, 11 Mass. Workers' Comp. Rep. 223 (1997) (where § 11A opinion has inadequate foundation, it must be stricken from record). In McKenna v. U-Mass. Boston Harbor Campus, 9 Mass. Workers' Comp. Rep. 183, 186 (1995), we held that due process requires that the parties have a right to depose the § 11A examiner pursuant to G.L.c. 152 11A(2). Where there is an inability to cross-examine a medical witness, absent statutory exception, such physicians' reports are not admissible in evidence. See Grant v. Lewis/Boyle Inc., 408 Mass. 269, 274 (1990); and see L. Locke, Workmen's Compensation § 513, at 627 (2d ed. 1981). Accordingly, we exclude the § 11A report from the evidence.
The report should remain in the record for purposes of identification, but not be admitted as an exhibit.
The employee has raised a second issue on appeal, contending that the reports of the insurer's examiner, Dr. Chernack, were never offered as exhibits at hearing by the insurer, but were apparently placed in evidence by the judge subsequent to hearing. 452 CMR 1.11 (6) provides for the submission into evidence, by a party, of reports of a physician engaged by said party, together with the doctor's curriculum vitae. It further allows, as a matter of right, that any party may depose the physician for purposes of cross-examination. See n. 7, supra. The employee contends that admitting the insurer's reports into evidence, without conforming to the requisites of 452 CMR 1.11 (6), deprived her of due process of law.
We note that the record is silent as to how Dr. Chernack's reports came to be admitted into evidence, but that the insurer does not dispute the employee's contentions in this regard. See (Employee's brief, Insurer's brief.)
452 Code Mass. Regs. 1.11 (6) provides, in pertinent part:
(6) At a hearing pursuant to M.G.L.c. 152, § 11 in which the conference appeal was filed prior to July 1, 1992 or in which the case does not involve a dispute over medical issues as defined in 452 CMR 1.02, or in which the administrative judge has made a finding under M.G.L.c. 152, § 11A(2) that additional testimony is required due to the complexity of the medical issues involved or the inadequacy of the report submitted by the impartial medical examiner, a party may offer as evidence medical reports prepared by physicians engaged by said party, together with a statement of said physician's qualifications.
* * *
Pursuant to 452 CMR 1.12(5), any party may, for the purpose of cross-examination, depose the physician who prepared an admitted medical report. After such cross-examination, the parties may conduct further examination pursuant to the rules of evidence applied in courts of the Commonwealth.
(Emphasis Added).
Given the error in admitting the § 11A physician's report, we must remand this case to the judge for consideration of the issue of extent of causally related incapacity, based upon properly admitted evidence. We therefore need not reach the employee's second issue at this time. However, on remand, the judge shall make findings as to what medical exhibits were offered by the parties, and render a new decision based on the evidence of record. If appropriate, the employee shall be accorded an opportunity to cross-examine Dr. Chernack.
Accordingly, we reverse the decision. We remand this matter to the judge for further findings on the medical issues and the extent of any work related incapacity. So ordered.
________________________ Carolynn N. Fischel Administrative Law Judge
________________________ Frederick E. Levine Administrative Law Judge
________________________ Sara Holmes Wilson Administrative Law Judge
Filed: December 17, 1997