Opinion
BOARD Nos. 034694-95, 054390-95
Filed: April 10, 1998
REVIEWING BOARD DECISION
(Judges McCarthy, Maze-Rothstein, and Smith).
APPEARANCES
Wendy Bittner, Esq., for the employee at hearing.
Roberta B. Newcomb, Esq., for the employee on brief.
Scott A. Smith, Esq., for the insurer.
We have cross appeals from a hearing decision awarding ongoing § 35 partial incapacity benefits. The self-insurer challenges the judge's admission and reliance upon medical evidence in addition to the report and deposition of the § 11A impartial medical examiner. As the judge did not determine that the medical issues were complex and did not make a clear ruling on whether the impartial physician's report was inadequate for any period other than the so-called "gap period," we reverse the award of § 35 benefits after the date of the impartial examination and recommit for further findings.
Richard Berube was a sixty year-old toll collector for the Massachusetts Turnpike Authority (Dec. 4-5) when, on March 21, 1995, he fell at work, injuring both knees. (Dec. 6.) He was out of work for two brief periods before having arthroscopic surgery on June 15, 1995. Then, on July 28, 1995, he injured his left leg and back when struck by a truck and knocked into a barrier as he was coming out of his toll booth. (Dec. 6-7.) Mr. Berube was out of work from July 28, 1995 until December 14, 1995, when he returned to modified duty until January 22, 1996. After an acute episode of left knee and hip pain, he left work and filed a claim for weekly benefits which is the subject of this appeal. (Dec. 7.) After a conference held under § 10A, orders issued for payment of weekly § 34 benefits for several closed periods of time up through June 14, 1996. Both the employee and the insurer requested a hearing de novo. (Dec. 2.)
At the hearing, the parties stipulated to the March 21, 1995 injury to the employee's knees and to a further injury to his left knee on July 28, 1995. The insurer denied that the employee injured his back and neck in the second accident. The parties further stipulated to the various periods of incapacity ending December 14, 1995, but disagreed on entitlement to benefits beyond January 23, 1996, when the employee left work.
The conference order had directed payment for these periods.
Prior to the hearing the employee was examined under the provisions of § 11A. Dr. Peter Anas, the impartial examiner, concluded that Mr. Berube was able to return to light, sedentary work, and that any physical restrictions were due to pre-existing degenerative arthritis of the knee and lumbar spine, rather than to his work-related injuries. (Dec. 3.) After Dr. Anas was deposed, the employee filed a motion to allow additional medical testimony due to the complexity of the medical issues. The judge wrote to the parties on February 28, 1997 stating:
Because of my concerns about the adequacy of an opinion that is at least arguably lacking in specificity about the period between the claimed disability commenced January 1996 and the Impartial report of July 1996, I find it important to have other opinions to weigh alongside that of Dr. Anas, and thus additional medical testimony is due April 1, 1997.
This ruling is also found on page 2 of the hearing decision.
Dr. Peter Brassard, the employee's treating physician, in a report and a deposition testified that Mr. Berube was medically disabled and that the two work injuries were a major cause of his ongoing disability. (Dec. 9.) The insurer submitted the report of Dr. Isadore Yablon, who concluded that the two work incidents did not cause problems to the employee's left knee. (Dec. 10.) The judge sifted the differing medical views and then after rejecting the opinion of Dr. Yablon, she adopted the opinion of Dr. Brassard regarding causal relationship, (Dec. 9, 14-15), and that of the impartial examiner regarding Mr. Berube's physical limitations. (Dec. 10.) The judge ultimately concluded that the employee had an earning capacity of $125.00 per week and awarded ongoing partial incapacity benefits from January 23, 1996 and continuing at the rate of $345.78 based on an average weekly wage of $768.42.
The cross appeals center around the purpose for which additional medical testimony was admitted. The self-insurer maintains that the judge had allowed it only for the gap period from January 23, 1996 to July 17, 1996, the date of the impartial examination. There was no ruling, says the self-insurer, that the § 11A report was inadequate for the period after July 17, 1996, and no determination that the issues were complex. Finally, the self-insurer argues that since the § 11A report was adequate and the issues were not complex, it was error to allow additional medical evidence covering the period after the impartial examination. The employee argues in response that the judge did not limit the additional medical evidence to the gap period, but merely cited that period as one reason for her concern about the adequacy of the impartial's opinion. In employee's view, the only error was in the assignment of an earning capacity.
We begin our review by noting that § 11A (2) requires that the "impartial physician's report shall constitute prima facie evidence of the matters contained therein." No additional medical evidence shall be admitted unless the "judge . . . on his own initiative or upon a motion by a party, authorizes[s] 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." G.L.c. 152, § 11A(2). Where a case involves a period of incapacity preceding the date of the impartial examination, additional medical evidence may be admitted for the limited purpose of filling in the "gap period" between the time of alleged incapacity and the date of the impartial examination.George v. Chelsea Hous. Auth., 10 Mass. Workers' Comp. Rep. 22, 26 (1996). Otherwise the employee would be denied the opportunity to meet his burden of proving disability and causal relationship during that time. Id.
Neither the statute nor the regulations explicitly require the judge to give reasons for allowing or denying a motion for additional medical evidence. Dunham v. Western Massachusetts Hosp., 10 Mass. Workers' Comp. Rep. 818, 822 (1996); Lebrun, 9 Mass. Workers' Comp. Rep. 692, 696 (1995). at 694, n. 3. However, in Coggin's Case, 42 Mass. App. Ct. 584, 588, n. 7 (1997), the court noted that it is preferable for a judge "to articulate the basis for his conclusion" when ruling on a motion for additional medical evidence. Also, the regulations require that when additional medical evidence is authorized there must be a "written finding that testimony is required due to the complexity of the medical issues involved or the inadequacy of the report of the impartial physician." 452 Code Mass. Regs. 1.12 (5) (a). SeeDunham, supra, at 822. It is axiomatic that that finding must be clear enough so that the parties understand its meaning.
Here, the judge made no finding on whether the medical issues were complex and the finding on the adequacy of the impartial report is ambiguous. It is unclear whether the impartial report is inadequate only as it fails to address the gap period between January and July 1996, or whether it is inadequate for all purposes. As additional medical evidence can be admitted either for the limited purpose of providing a medical opinion during the gap period or for all purposes, the judge should explicitly state the purpose for allowing the evidence. Otherwise, the parties are in the dark as to what issues the medical experts should address.
The judge erred when she awarded ongoing partial incapacity benefits beyond the date of the impartial examination based on medical evidence other than the report and deposition of the impartial physician, without a finding of complexity or inadequacy. See G.L.c. 152, § 11A. We therefore reverse the award of benefits after July 17, 1996, and recommit the case for further ruling on the issues of complexity of the medical issues and the adequacy of the § 11A report. The judge should then review her findings with respect to the claimed period of incapacity in light of those rulings.
So ordered.
_____________________ William A. McCarthy Administrative Law Judge
_____________________ Susan Maze-Rothstein Administrative Law Judge
_____________________ Suzanne E.K. Smith Administrative Law Judge
Filed: April 10, 1998