Opinion
Board No. 074231-90
Filed: April 20, 1995
REVIEWING BOARD:
Judges Fischel, McCarthy, and Wilson.
APPEARANCES:
Burton S. Friedman, Esq., for the employee.
Donald Hammill, Esq., for the insurer.
The employee appeals from a decision of an administrative judge declining to award further compensation on the employee's appeal from a discontinuance granted as of January 29, 1992. He contends that the judge erred in failing to appoint an impartial examiner pursuant to M.G.L.c. 152, § 11A, which provides for § 11A examiners when appeals filed after July 1, 1992 involve medical disputes. The employee's appeal in this case was dated February 12, 1992, several months prior to the July 1, 1992 effective date of § 11A.
Section 11A, as enacted by St. 1991, c. 398 § 30, by § 11A took effect on July 1, 1992, and required that for all appeals from § 10A conferences filed on or after July 1, 1992, § 11A impartial physicians be appointed when medical issues were in dispute.
The employee argues in the alternative that under the version of § 11A which existed prior to July 1, 1992, referral to an impartial physician was obligatory, and the judge's failure to require such an examination was arbitrary and reversible error. That argument is unfounded, because at the time of the April 1992 hearing the appointment of an impartial physician was permissive and not required under § 11A. Gately v. Texas Instruments, 5 Mass. Workers' Comp. Rep. 55, 58 (1991). See O'Neil's Case, 262 Mass. 266 (1928). See also McHugh's Case, 1 Mass. App. Ct. 803 (1973). There was no error in the judge's declining to appoint an impartial physician.
The prior version of § 11A, as enacted by St. 1985, c. 572, § 25, by § 70 made effective November 1, 1986, was amended by St. 1986, c. 662, § 14, is applicable to this case, and provides in pertinent part:
(3) In any other proceeding in which medical evidence is required for the resolution of a dispute arising under this chapter, an administrative judge may appoint a physician from the appropriate roster to examine the claimant and to make a report.
McHugh's Case, 1 Mass. App. Ct. 803 (1973), involved c. 152, § 8(4). and appointment of an impartial physician was found to be discretionary.
As the second basis for this appeal the employee contends that the judge erred in failing to join as an issue at hearing the § 28 claim the employee filed on March 23, 1992. The judge noted that the § 28 claim was filed subsequent to the discontinuance conference and two weeks prior to hearing. (Dec. 4) The § 28 claim form had been rejected for scheduling by the department, with appended form letter indicating the § 28 claim would not be scheduled for conciliation because there was a proceeding scheduled for April 16, 1992 on the appeal from the discontinuance (Employee ex. 2). Section 28 claims bring the employer directly into proceedings as a party, and all defenses may be raised by the employer, regardless of whether the insurer has voluntarily accepted or been ordered to pay compensation. West's Case, 313 Mass. 146 (1943). That proceedings were ongoing on the insurer's request to discontinue should pose no bar to scheduling for conciliation the distinct issues involved in a § 28 claim.
It was not error for the judge to decline to join the claim with the pending discontinuance hearing. Joinder of claims is a matter for judicial discretion. While it is generally in the interests of judicial economy to join all issues relating to a claim in a single proceeding, different parties and issues were involved in this instance. A discontinuance hearing involves only the employee and insurer, not the employer, as parties. Joining the § 28 claim would have significantly enlarged the scope of the proceedings before the judge, and could, as to the employer, involve litigating issues as to original liability. Had the underlying claim not been accepted, and scheduled for hearing on original liability issues, joinder of § 28 to the liability claim could have fostered such economy. In any event, joinder was discretionary.
In his brief on review the employee states he would not pursue this aspect of his appeal on review if he may be permitted to separately pursue the § 28 matter. Since the employee is free to pursue the § 28 claim, we need not here discuss this matter further.
The judge's decision is affirmed.
Judges McCarthy and Wilson concur.