Opinion
BOARD No. 27145-92
Filed: January 31, 1996
REVIEWING BOARD DECISION
(Judges Kirby, Maze-Rothstein and Smith)
APPEARANCES
Jane Eden, Esq., for the employee.
Jean Shea, Esq., for the insurer.
The employee appeals from a decision awarding him a limited period of § 34 temporary total incapacity benefits and § 30 medical benefits. He argues that the judge erred in denying his request for a second impartial medical report pursuant to G.L.c. 152, § 11A. In addition, he claims that workers' compensation litigants have a constitutional right to introduce medical opinions from their own experts. We hold that there is no right to a second impartial medical examination under § 11A. We render no opinion on whether § 11A's restriction on the submission of medical evidence complies with constitutional requirements of due process, as this issue will be decided by the Supreme Judicial Court in the pending case of O'Brien v. Blue Cross/Blue Shield, 9 Mass. Worker's Comp. Rep. 16 (1995), appeal docketed, No 07058 (SJC October 30, 1995).
Anisio Oliveira received a personal injury to his neck and back in a fall at work on June 8, 1992. After paying without prejudice, the insurer then contested the claim. At the § 10A conference, the parties indicated that there was a dispute over medical issues, selected a specialty for the impartial examiner and marked for identification all relevant medical records, medical reports, medical histories and all other relevant information to be sent to the impartial examiner in case of continuing controversy. See G.L.c. 152, § 11A. After conference, an administrative judge ordered payment of ongoing § 34 benefits.
When the insurer appealed the conference order, an orthopedic specialist was appointed as the impartial medical examiner pursuant to G.L.c. 152, § 11A. The impartial medical examination occurred on June 10, 1993. (Dec. 2-4.) The impartial orthopedic physician reported that the employee had sustained cervical and lumbar strains causally related to the June 8, 1992 industrial accident but concluded that they had resolved by the time of the examination, and that the employee was at a medical end result with no ongoing medical disability. (Dec. 5-6.)
At the November 29, 1993 hearing the employee did not assert that the report was inadequate or the case medically complex, requiring the submission of additional medical evidence. As was his right under § 11A(2), he proceeded to depose the impartial physician. (Dec. 2.)
At the deposition on February 3, 1994, the employee exercised his right of cross-examination. The employee questioned the impartial medical examiner's ability to diagnose the medical condition of fibromyalgia, a rheumatological condition. The impartial doctor replied that, "in 20 years I've never made that diagnosis because I don't believe that it occurs. . . . I don't believe there is a diagnosis of fibromyalgia. . . ." (Dep. 9.) The employee asked the impartial examiner whether the employee's treating chiropractor felt that the employee had injuries consistent with myofascial pain syndrome and post traumatic fibromyalgia. (Dep. 10.) The insurer objected on hearsay grounds and the judge sustained the objection. (Dep. 11; Dec. 10.)
Section § 11A(2) provides in pertinent part:
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 . . .
After the deposition, the employee's counsel wrote to the judge on February 14, 1994. She asserted that the impartial examiner's report was inadequate because the condition of fibromyalgia was outside the scope of the impartial medical examiner's expertise. She requested a second impartial report by a rheumatologist due to the orthopedic doctor's refusal to recognize fibromyalgia as a legitimate medical diagnosis. She also offered to appear for hearing to argue a motion for additional medical evidence. (See Insurer Ex. 1, Letter dated Feb. 14, 1994.)
No medical reports were attached to the letter as an offer of proof. Specifically, the letter did not contain a copy of the treating chiropractor's report referred to in the deposition questioning. (Giampa report of Feb. 8, 1993 marked for identification and sent to the impartial physician; Dep. 10.) Although § 11A does not require that medical reports be attached to the motion for additional medical evidence, the parties may bring them to the judge's attention either by attachment or request for judicial notice. See LeBrun v. Century Markets, 9 Mass. Workers' Comp. Rep. ___, at note 4 (November 24, 1995) ("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.").
Without scheduling a hearing, the judge denied the request for a second impartial examination with a rheumatologist. (Dec. 2 n. 1; Insurer Ex. 1, Letter dated April 21, 1994.) Four days later, the judge issued a decision. She specifically adopted the impartial examiner's findings:
a normal cervical and lumbar lordosis, no visible or palpable spasm, normal reflexes and that the motor exam, which is a testing of time, symmetry and strength of muscles, was within normal limits. (D14) The employee exhibited an unusual, extreme sensitivity to even light palpation about the back and neck and dorsal spine. (D6) Dr. Provost also found the employee had a decreased sensation of his entire right arm in a stocking glove pattern. The doctor opined, and I so find, that the significance of this finding is that it is a non-anatomical distribution of nerve pattern so it does not follow any psychological (sic) anatomic pattern; its identification by the patient is an attempt to enhance or change or nullify the findings. (D14) Dr. Provost expressed the opinion, which I adopt, that the exam findings were essentially normal, except for the sensitivity which was out of proportion to what one would find on the exam. (D7).
(Dec. 5, 7-8.) The judge relied on the impartial examiner's report to award only a limited amount of benefits, terminating them as of the date of the impartial examination. (Dec. 8-9.)
The employee argues that the system of impartial medical examinations under § 11A is unconstitutional, in general, as a violation of the employee's due process rights, and that the judge erred in denying the employee's request to argue a motion for additional medical evidence based on inadequacy of the impartial report. We address the second issue first.
The exact wording of the employee's issue is as follows:
"Whether or not the Employee was denied a fair hearing when he was not afforded the opportunity to effectively rebut the Impartial Examiner's testimony and not allowed to submit other medical testimony." (Employee's Brief at 9.)
Section 11A(2) provides in pertinent part:
Notwithstanding any general or special law to the contrary, no additional medical reports or depositions of any physicians shall be allowed by right to any party; provided, however, that the administrative judge may, on his own initiative or upon a motion by a party, authorize the submission of additional medical testimony when such judge finds that said testimony is required due to the complexity of the medical issues involved or the inadequacy of the report submitted by the impartial medical examiner. (Emphasis supplied)
The statutory language makes the admission of additional evidence discretionary with the administrative judge. We are constrained by the standard of review in G.L.c. 152, § 11C to overturn a judge's ruling only when it is arbitrary, capricious or contrary to law. Dupras v. Water Divisions of Millipore, 10 Mass. Workers' Comp. Rep. ___, slip op. at 5-6 (January 5, 1996). We find no abuse of discretion or legal violation here.
The judge did not err in deciding not to schedule a hearing after receipt of the employee's letter. The employee had an opportunity to make his argument in writing. The fact that the judge did not find the argument compelling and allow additional medical evidence does not mean that the judge's action was arbitrary, capricious, or contrary to law. Clearly, there is no provision within § 11A to allow any party to undergo more than one impartial examination, even in cases involving medical issues that are appropriately addressed by different specialties. The judge's denial of the employee's request to that effect was proper.
In the concluding paragraph of the letter, counsel wrote: ". . . I would ask that you consider this request for as (sic) second impartial. I would be happy to appear before you and argue through a motion for additional testimony whenever your schedule permits such a meeting." (Letter dated Feb. 14, 1994, at 2.)
We defer to the constitutional courts for a ruling on the facial constitutionality of § 11A, recognizing that a definitive answer will soon be forthcoming from the Supreme Judicial Court in O'Brien v. Blue Cross/Blue Shield, 9 Mass. Worker's Comp. Rep. 16 (1995), appeal docketed, No. 07058 (SJC October 30, 1995).
The decision is affirmed.
So Ordered.
________________________ Suzanne E.K. Smith Administrative Law Judge
________________________ Edward P. Kirby Administrative Law Judge
_________________________ Susan Maze-Rothstein Administrative Law Judge
SKS Filed: January 31, 1996