Opinion
BOARD No. 08758089
Filed: March 29, 1996
REVIEWING BOARD DECISION (Judges Wilson, Fischel and McCarthy)
APPEARANCES
James J. Fitzgerald, Jr., Esq., for the employee at hearing
Paul M. Moretti, Esq., for the employee on brief
Allen Whitestone, Esq., for the insurer
The employee appeals from the decision of the administrative judge denying and dismissing his claim for weekly incapacity benefits. The employee contends 1) that the procedure followed by the administrative judge in conducting the hearing prior to receipt of the impartial medical exam report was improper, and 2) that the administrative judge failed to make critical findings on the employee's history of pain. We agree and vacate the decision.
The employee, a plumber, was working for this employer at the new Suffolk County jail. On Wednesday, June 28, 1989, as he turned to go up a flight of stairs while carrying a ten foot long soil pipe, he felt something snap in his back. He finished work that day but filed a report of an accident. (Dec. 4, 6.) He remained out of work until the following Monday and continued to work until August 11, 1989, when he was laid off. (Dec. 6.) He collected unemployment compensation and then returned to work for a different employer in May 1990, until he was again laid off on October 31, 1990. (Dec. 3-4, 6.)
After leaving work on June 28, 1989, the employee went to a chiropractor with whom he had previously treated for ongoing back pain. He received no further treatment until May 1991, when he presented to the emergency room of Brigham and Women's Hospital due to back pain. Subsequent testing led to a diagnosis of spinal stenosis, a degenerative condition, which was surgically treated on May 24, 1991. The surgery consisted of a lumbar laminectomy from L2 to L5 and removal of sequestered disc fragments at L3-4, hemifacetectomies at L2-3, L3-4, L4-5 and exposure of the nerve roots of L2, L3, L4, L5 and S1. (Dec. 5.)
The employee's claim was denied at conference. He filed a timely appeal and a hearing de novo took place before the same administrative judge on January 27, 1993. Because the claim involved a dispute over medical issues, a § 11A exam was conducted on January 28, 1993. The report and deposition of the § 11A examiner, Dr. James M. Gibbons, comprised the medical evidence at the hearing.
General Laws c. 152, § 11A (2) provides, in pertinent part:
When any claim or complaint involving a dispute over medical issues is the subject of an appeal of a conference order . . . the parties shall agree upon an impartial medical examiner from the roster. . . .
The impartial medical examiner . . . shall examine the employee and make a report at least one week prior to the beginning of the hearing, which shall be sent to each party. No hearing shall be commenced sooner than one week after such report has been received by the parties. . . . Such impartial physician's report shall constitute prima facie evidence of the matters contained therein.
The employee argues that conducting the hearing before receipt of the § 11A examiner's report was improper and without statutory authority. We previously addressed this issue inO'Brien v. Blue Cross/Blue Shield, 9 Mass. Workers' Comp. Rep. 16 (1995), appeal docketed, No. 07058 (S.J.C. October 30, 1995), wherein we determined that the mandate of § 11A is clear: the report of the impartial medical examiner must be received by the parties no less than one week prior to the hearing. In this case, holding the hearing prior to receipt of the § 11A report may have prejudiced the employee's case. See note 2infra.
The employee next argues that the findings of the administrative judge are insufficient. He contends that during the course of the proceedings a controversy arose as to whether the precipitating symptoms, radiating leg pain, increased in severity as of June 28, 1989, or whether the symptoms manifested only three weeks before his surgery. The employee testified to the former, while a reference in the hospital discharge summary presented the latter. This discrepancy was noted by the impartial examiner who offered an alternative opinion as to causal relationship based on the divergent histories. Dr. Gibbons opined, and the administrative judge found that
if the Employee's history was accurate, his ruptured disc was caused by his accident on June 28, 1989. If the history that was contained in the hospital records was accurate, then it would be Dr. Gibbons' opinion that the precipitating symptoms occurred three weeks prior to the employee's May 24, 1991 surgery.
(Dec. 9.)
The administrative judge went on to make the following general finding:
I adopt in part, the opinion of Dr. Gibbons that the surgery the Employee had on May 24, 1991 was not caused by his June 28, 1989 accident, but that it was caused by a more recent occurrence that [sic] this which occurred on June 28, 1989.
(Dec. 11.)
Because Dr. Gibbons' opinion on causal relationship was contingent on the history of symptoms, it was critical that the administrative judge make subsidiary findings on the history sufficient to explain his choice between the two alternate medical opinions. "Conclusions unaccompanied by findings of fact as a basis to support them do not satisfy the requirement to make findings of fact." Hannon v. Gillette Company, 7 Mass. Workers' Comp. Rep. 287, 291 (1993), citing Judkins's Case, 315 Mass. 226 (1943); Crowell v. New Penn Motor Express, 7 Mass. Workers' Comp. Rep. 3 (1993).
The employee claims an abuse of discretion in the judge's putative denial of the employee's motion to open the record because of newly discovered evidence that would confirm the inaccuracy of the Brigham Women's Hospital discharge summary. We need not address this issue as we remand the case for hearing de novo on other grounds.
Accordingly, we vacate the decision of the administrative judge. As the administrative judge who issued this decision no longer serves in the department, we forward this case to the senior judge for reassignment to a new administrative judge for hearing de novo.
The newly assigned judge may, in the interest of economy, utilize the original impartial exam report and deposition. Because the accuracy of the Brigham and Women's Hospital record that formed a basis for Dr. Gibbons' alternative causal relationship opinion is disputed, the administrative judge may allow such other evidence as is necessary to determine its accuracy and make findings on the history of symptomology.
So ordered.
____________________________________ Sara Holmes Wilson Administrative Law Judge
____________________________________ Carolynn N. Fischel Administrative Law Judge
____________________________________ William A. McCarthy Administrative Law Judge
Filed: March 29, 1996