Opinion
BOARD No. 12567-84
Filed: June 27, 1997
REVIEWING BOARD DECISION
(Judges Fischel, Levine and Wilson)
APPEARANCES
James A. McDonald, Jr., Esq., for the employee.
Joseph J. Durant, Esq., for the insurer.
The employee appeals from a decision in which an administrative judge found him partially disabled but terminated all weekly incapacity benefits. (Dec. 11, 14.) The employee argues that the judge improperly rejected the opinion of the § 11A impartial physician that the employee was totally disabled due to a work related herniated L4-5 disc with nerve root compression, for which the doctor felt surgery was appropriate treatment. (Dec. 7, 10.) The judge cited as his reason for rejecting the doctor's opinion that the employee was totally medically disabled the doctor's statement that the employee probably exaggerated his symptoms. The judge stated that the employee could not be "totally disabled and at the same time . . . exaggerating his symptoms. It must be one or the other." (Dec. 10.)
We agree with the employee that the judge erred. Because there was no inherent inconsistency between the doctor's opinions as to total disability and symptom exaggeration, the judge's basis for rejecting the opinion of the § 11A medical expert was arbitary. We therefore reverse the judge's decision, and recommit the matter for further proceedings.
On January 16, 1984, the employee injured his lower back while working. (Dec. 5.) The insurer accepted the injury, and paid temporary total incapacity benefits. (Dec. 2-3.) The insurer filed a complaint to discontinue payment of incapacity benefits, which was the subject of a § 10A conference on December 30, 1992. The judge's January 5, 1993 order allowed the insurer's complaint to discontinue. The employee appealed that order to a hearing de novo. (Dec. 2.)
The employee was examined by an impartial physician pursuant to the provisions of G.L.c. 152, § 11A. The § 11A physician opined that the employee suffered from either a herniated or bulging L4-5 disc with right nerve root compression, causally related to his industrial injury. (Dec. 7-9.) The impartial physician concluded that diagnostic MRI and EMG testing showed signs of nerve root encroachment consistent with the employee's complaints. (Dec. 9.) He also noted that his examination findings of positive straight leg raising and weakness of the toe extensors on the right were consistent with a pattern of L4-5 disc nerve root compression. (Dec. 9; Dep. Glazer, p. 14.) Doctor Glazer testified that such disc and sciatica injuries cause severe pain. (Dep. Dr. Glazer, p. 16.) He opined that symptoms of the diagnosed condition were usually worsened by sitting, bending, twisting and lifting, and sometimes by walking. Id. He felt the employee appeared to exaggerate his symptoms, but nonetheless felt he was "a good candidate for surgery." (Dec. 8; Dep. Glazer, p. 10.) Based on his examination findings and observations of the difficulty the employee had sitting and standing and walking, as well as his complaints, the doctor testified that the employee was totally medically disabled from gainful employment. (Dep. Glazer, p. 7, 9, 11, 12, 14.)
The examination took place on April 23, 1993, after the lay testimony was taken. While the employee correctly raises the issue of the improper sequence of these events, see O'Brien v. Blue Cross/Blue Shield, 9 Mass. Workers' Comp. Rep. 16, 20-22 (1995), the matter is of no consequence given our disposition of the case on other grounds.
The judge adopted the impartial physician's opinion that the employee's present impairment was causally related to his industrial injury. (Dec. 10.) However, the judge then concluded that he could not adopt the doctor's opinion that the employee was totally disabled when he also opined that the employee was exaggerating his symptoms: "It must be one or the other." (Dec. 10.) The judge thus found the employee was partially disabled, but that his earning capacity was equal to or greater than his $215.19 average weekly wage. (Dec. 10-11.) Therefore the judge discontinued the employee's § 34 benefits as of the date of the impartial examination, April 23, 1993. (Dec. 14.)
The judge's rejection of the § 11A physician's opinion on the extent of the employee's medical disability is arbitrary and capricious. There is no basis for the judge's reasoning that "it must be one or the other" — that either the employee was totally disabled or he was exaggerating his symptoms. (Dec. 10.) The impartial physician's opinion is that the employee had a totally disabling medical condition, regardless of his exaggerated complaints. In fact, the doctor found that the diagnostic test results and the clinical findings on exam were consistent with a totally medically disabling disc injury. (Dec. 9; Dep. Glazer, p. 14.)
The impartial medical opinion is prima facie evidence of the extent of the employee's medical disability under § 11A(2)(ii). That prima facie evidence loses its artificial legal force when it is met with other evidence that warrants a contrary conclusion. Bedugnis v. Paul McGuire Chevrolet, 9 Mass. Workers' Comp. Rep. 801, 803 (1995); Cook v. Farm Service Stores, 301 Mass. 564, 566 (1938). The "other evidence" can be additional medical evidence, introduced as a result of a ruling that the impartial report is inadequate or the medical issues complex. In the present case, neither was there a request for the judge to make such a ruling, nor did he so determine on his own initiative. See § 11A(2) The "other evidence" can also be lay testimony from the employee or other witnesses. See Scheffler's Case, 419 Mass. 251, 256 (1994) (difference in employee's history warrants rejection of impartial opinion as to extent of disability); Simoes v. Town of Braintree School Dept., 10 Mass. Workers' Comp. Rep. ___ (November 12, 1996) (expert testimony on vocational factors affecting employability can overcome prima facie effect of impartial's disability assessment). However, the judge was not free to disregard the impartial's expert opinion on the extent of disability, without a rational basis for doing so. Where the impartial physician proffers no inherent inconsistency between the employee's total medical disability and symptom exaggeration, the judge may not read such an inconsistency into that prima facie medical evidence.
We therefore recommit the case for an assessment of the employee's incapacity status from April 23, 1993 in light of the employee's medical disability and the principles enunciated inFrennier's Case, 318 Mass. 635 (1945) and Scheffler's Case, supra, at 256. Because the judge no longer serves in the department, we refer the case to the senior judge for reassignment for hearing on the employee's incapacity status beginning April 23, 1993. So ordered.
______________________________ Carolynn N. Fischel Administrative Law Judge
______________________________ Frederick E. Levine Administrative Law Judge
______________________________ Sara Holmes Wilson Administrative Law Judge
Filed: June 27, 1997