Opinion
BOARD No. 070234-85
Filed: July 9, 1997
REVIEWING BOARD DECISION
(Judges Levine, Wilson and Fischel)
APPEARANCES
Mitchell J. Wallman, Esq., at hearing.
Daniel B. Kulak, Esq., on appeal for the employee.
Omar Hernandez, Esq., for the self-insurer.
The parties cross appeal from a decision of an administrative judge awarding § 34A permanent and total incapacity benefits from January 28, 1994, the filing date of the employee's claim, and continuing. The insurer argues that the judge erred in awarding an attorney's fee to employee's counsel. The employee argues that the judge erred in not ordering § 34A benefits to commence on December 23, 1991, the date his § 34 benefits exhausted, rather than the date he filed his claim, a non-evidentiary date. We reverse in part, remand in part, and summarily affirm in part.
Prior to 1962, the employee worked as a carpenter for various construction companies. (Dec. 5) In 1962, he began employment as a carpenter with the Metropolitan District Commission. On February 8, 1985, the employee slipped and fell in the course of that employment, sustaining injuries to his right shoulder, back and left thigh. Id. He received treatment, remained out of work for a short time, and then returned to light duty. Id. On July 16, 1985, while on light duty, the employee sustained a second injury when he lifted a laundry basket and experienced severe pain in his back and shoulder areas. Id. He has not worked since.
The self-insurer accepted the case and paid § 34 temporary total weekly compensation benefits until they exhausted on December 22, 1991. (Dec. 4.) On January 28, 1994, the employee filed his claim for § 34A benefits. Id. After that claim was denied following a conference on May 11, 1994, the employee appealed to a hearing de novo.
On June 23, 1994, Dr. Mark Berenson examined the employee pursuant to the provisions of § 11A of G.L.c. 152 (the Act). He diagnosed a sprain of the lumbosacral spine, impingement syndrome of the right shoulder with secondary decompression of the left shoulder. (Dec. 6.) Dr. Berenson opined that the employee's symptoms and numerous injuries were work-related and that he "is permanently and totally disabled from performing the work of a carpenter and that his multiple injuries and surgical procedures would prevent him from performing any type of work activities." (Dec. 6.) He further opined that the employee was at a medical end result. Id.
The judge adopted Dr. Berenson's opinion and found that the employee's on-going disability was causally and directly related to the accepted industrial injuries of February 8, 1985 and July 16, 1985. (Dec. 8.) In light of the employee's physical limitations, age, education, and work experience, the judge further found the employee to be permanently and totally incapacitated. Id.
The judge ordered the self-insurer to provide medical benefits and to pay the employee § 34A compensation from the filing date of the claim on January 28, 1994 to the date of the decision and continuing. (Dec. 9.) He awarded an attorney's fee in the amount of $3,500.00 to employee's counsel. He reserved the employee's § 36 rights. Id.
The self-insurer argues that the judge erred in ordering an attorney's fee to employee counsel. We agree. The industrial accidents at issue in this case occurred on February 8, 1985 and July 16, 1985. Section 13A (9) of the Act provides that when an employee appeals a conference order relating to injuries occurring prior to November 1, 1986, the employee's attorney's fees shall be of an amount agreed upon between the employee and his attorney.
Section 13A(9) provides:
In any hearing or review requested by an insurer aggrieved by an order or decision with respect to an injury occurring prior to November first, nineteen hundred and eight-six or in a proceeding brought by an insurer or self-insurer as to the continuance of compensation being paid under this chapter for an injury occurring prior to November first, nineteen hundred and eight-six, there shall be awarded an amount sufficient to compensate the employee for the reasonable costs of such hearing review or proceeding including reasonable counsel fees and expenses, provided that the employee prevails at such hearing review or proceeding. Such amounts shall be paid by the insurer. Any other attorneys' fees for services provided claimants for injuries prior to November first, nineteen hundred and eighty-six, shall be of an amount agreed upon between the employee and the attorney.
See also 452 CMR 1.19 (8).
Therefore, we reverse the judge's award of an attorney's fee.
The employee argues in his appeal that the judge should have ordered § 34A permanent and total compensation from the date of exhaustion of the § 34 benefits in 1991, rather than from the date in 1994 he filed his claim.
The self-insurer argues in its reply brief that it was prejudiced by the employee's more than two year delay in filing for § 34A benefits. As the argument was not raised below, we do not address it.
Where a medical issue is beyond the realm of a lay person's knowledge, expert testimony is needed to establish disability and causal relationship between a claimed incapacity and an industrial injury. Josi's Case, 324 Mass. 415, 418 (1949). The prima facie opinion of Dr. Berenson, the § 11A examiner, adopted by the judge, was the sole medical evidence in this case.
Dr. Berenson did not, however, express an opinion as to the employee's medical condition for the period of time prior to his June 23, 1994 examination. But in awarding § 34A benefits beginning January 28, 1994, the judge went back approximately five months from the examination date. Although the judge thus awarded benefits for a period of time for which there was no medical evidence, there was no basis in the record to fill that "gap."
An example of non-expert evidence that might be sufficient to fill that gap could be the uninterrupted, continuing, identical symptoms suffered by an employee for the entire period from exhaustion of § 34 benefits to the date of the impartial physician's examination. In such a case, a judge might be warranted in finding that the opinion of the impartial physician is applicable for that entire period, even if the impartial physician does not express an opinion as to the period prior to the date of the examination.
Indeed, there was evidence in this case that the employee's condition may have varied in the period prior to the impartial physician's examination. The employee underwent surgery in 1992. This may have resulted in a worsening or an improvement in the employee's condition; but there is no medical opinion thereon. See Statutory Exhibit 1.
Neither the self-insurer nor the employee moved to present additional medical evidence. On the record here, the judge was not competent to fill the evidentiary gap on his own. However, by ordering the commencement of § 34A benefits nearly five months prior to the impartial examination, the judge apparently felt that the employee was entitled to those benefits earlier than the examination date. Taking that view, the judge should have exercised his authority sua sponte to require additional medical evidence. Compare Wilkinson v. City of Peabody, 11 Mass. Workers' Comp. Rep. (May 1, 1997). Such an exercise of discretion would have provided each party with a fair opportunity "to make out [its] position on the disputed issue." O'Brien's Case, 424 Mass. 16, 22 (1996).
"[T]he administrative judge may, on his own initiative . . ., authorize the submission of additional medical testimony . . . ." § 11A(2).
We do not intend necessarily to suggest that the judge must in every case on his own initiative authorize the submission of additional medical testimony where there is a gap. However, where, as in this case, the judge on his own initiative did purport to plug part of the evidentiary hole, he must authorize the submission of additional medical testimony to cover the entire period of the gap.
Accordingly, we forward this case to the senior judge for reassignment to a different administrative judge, since the judge who filed the decision is no longer with the Department. On recommittal, the judge is to take additional medical evidence from December 23, 1991, the date of the expiration of the § 34 benefits, to June 23, 1994, the date of the § 11A exam. We reverse the award of § 34A compensation prior to the § 11A exam. We reverse the award of the attorney's fee to employee's counsel. We summarily affirm the remainder of the decision and award of § 34A compensation as of June 23, 1994, the date of the § 11A examination.
____________________________ Frederick E. Levine Administrative Law Judge
____________________________ Sara Holmes Wilson Administrative Law Judge
____________________________ Carolynn N. Fischel Administrative Law Judge
FEL/kai Filed: July 9, 1997