Opinion
Board No. 04603287
Filed: December 19, 1995
REVIEWING BOARD DECISION
(Judges Kirby, Smith and Maze-Rothstein)
APPEARANCES:
Alan S. Pierce, Esquire, for the employee
Maria Sergi, Esquire, for the insurer
The employee appeals from a decision denying her claims for partial incapacity benefits under § 35, as well as continuing medical benefits under § 13 and 30 G.L.c. 152, § 13, 30, 35 due to a back injury with a resultant psychological injury. The administrative judge based his denial on the opinion of a § 11A examiner, who was an orthopedic surgeon. (Dec. 9.) The employee had moved for the allowance of additional medical evidence arguing that there were non-orthopedic causes for her incapacity rendering the § 11A report inadequate and the medical issues complex. The judge denied her motion and concluded that the employee's present symptomatology in her back was no longer causally related to her industrial accident of July 1, 1987, and that the employee was no longer incapacitated from her job as a sales representative.
We find the § 11A opinion inadequate on causation with regard to the relationship of the back injury and the depression to the industrial injury. Accordingly, we reverse the judge's denial of the employee's motion, vacate the dismissal of the claim and remand this case for further findings after the submission of additional medical evidence.
The employee suffered an industrial injury in December 12, 1985, when her chair broke and she fell to the floor. She was out of work for some months with injuries to her back and neck, and attempted unsuccessfully to return to work in 1986. She tried again on July 1, 1987, when she suffered a severe recurrence of her symptoms, and again had to leave. (Dec. 4.)
The employee treated with orthopedic surgeons and at various rehabilitation hospitals for her ongoing back pain. The judge found that she, a formerly successful and well paid salesperson, now also suffered from depression which commenced sometime soon thereafter. (Dec. 4.) She received § 34 temporary total incapacity benefits from July 24, 1987 until June 3, 1992, when her benefits were exhausted. The employee then claimed § 35 partial incapacity benefits, which resulted in a conference order assigning a $750.00 earning capacity on her stipulated average weekly wage of $1091.80. The employee appealed for a hearing de novo. (Dec. 2.)
The employee was examined by a physician pursuant to § 11A on August 23, 1993. In the report that was generated as a result of that examination and record review, the examiner opined that the employee was not suffering from any present medical disability. He concluded, "I did not find objective signs of any pathology in the low back, and I therefore do not feel that there is any physical condition in the low back causing disability or impairment." (Report 3.)
The impartial physician noted that the employee's complaints at the time of the examination consisted of low back pain on the right side with some radiation of pain into right leg. He specifically stated that the employee no longer suffered from neck pain. (Report 2.)
The employee deposed the § 11A examiner on November 8, 1993. At that deposition, the doctor testified that he had reviewed records including those indicative of the presence of depressive symptoms. (Dep. 13-14.) In his assessment the Employee suffered neither chronic pain syndrome nor myofascial pain syndrome when he had examined her. (Dec. 8; Dep. 24, 41.) However, regarding the employee's depression, the doctor stated that he had no opinion, "that it would be improper or inappropriate of me to give an opinion on that subject because it's outside of my specialty." (Conway Dep. 29.)
Although he was an orthopedic specialist, he testified that he recognized chronic and myofascial pain syndromes as legitimate medical diagnoses, which he has seen in his own patients, and which he was aware that some of the employee's treating physicians had diagnosed as chronic pain syndrome in her case. (Dep. 17, 18.)
The employee moved for a declaration that the § 11A report was inadequate or the medical issues complex, and for the allowance of additional medical evidence, based in part on the impartial physician's inability to address the issue of the employee's depression. (February 1, 1994 Tr. 2-6.) The judge denied the motion, and adopted the opinion of the § 11A physician in concluding that the employee was no longer incapacitated from her job as a sales representative as of November 30, 1992. (Dec. 9; Tr. 22-23.)
In her appeal to this board, the employee raises the issues of the § 11A examiner's failure to address the medical conditions of chronic and myofascial pain syndrome, and depression. The doctor did address the diagnoses of chronic and myofascial pain syndromes during his deposition, but did not and stated he could not diagnose whether the employee was depressed. (Dep. 29.) The result is a § 11A report that is inadequate because it did not sufficiently respond to all the medical issues that were raised by the employee.
General Laws c. 152, § 11A sets out the factors that the impartial report must address, which include disability and extent thereof, causal relationship, medical end result and loss of function, if applicable. The impartial report must address the above factors with regard toall of the disputed medical issues in the case. See Mendez v. The Foxboro Company, 9 Mass. Workers Comp. Rep. ___ (Nov. 3, 1995). Here the employee testified about how her depressive reaction to her back pain incapacitated her from work. (Dec. 4; Tr. 20, 34, 45.) Her testimony with regard to current depressive behaviors was found as fact by the judge. (Dec. 4-5.) It was therefore necessary that the employee have the benefit of medical evidence as to whether there was a causally related depression that contributed to her incapacity. Since the impartial physician admitted that he could not respond to this contested medical issue, his report is inadequate as to it. See G.L.c. 152, § 11A(2) (i) (ii) (iii). (Text set out in n. 3 supra). Therefore, additional medical evidence, was needed for the judge to assess this component of the employee's claim and to fulfill his duty under § 11B to set forth in his decision the issues in controversy, decide them, and to give brief grounds for each decision. G.L.c. 152, § 11B.
G.L.c. 152, § 11A (St. 1991, c. 398, § 30) states, in pertinent part:
The report of the impartial examiner shall, where feasible, contain a determination of the following: (i) whether or not a disability exists, (ii) whether or not any such disability is total or partial and permanent or temporary in nature and (iii) whether or not within a reasonable degree or medical certainty any such disability has as its major or predominant cause a personal injury arising out of and in the course of the employee's employment. Such report shall also indicate the examiner's opinion as to whether or not a medical end result has been reached and what permanent impairments or losses of function have been discovered, if any. Such impartial physician's report shall constitute prima facie evidence of the matters contained therein.
The parties and the judge complied with the plain language of § 11A, which allows for agreement "upon an impartial medical examiner" and does not expressly authorize the appointment of others. That single examiner's opinion then became the exclusive medical evidence in the case when additional medical evidence was not allowed. But see O'Brien v. Blue Cross/Blue Shield, 9 Mass. Workers' Comp. Rep. 16 (1995); Kaminsky v.Univ. of Mass., 9 Mass. Workers' Comp. Rep. ___ (October 31, 1995). If the dissent implies that the employee should have attached medical reports to her motion for the allowance of additional medical evidence, we disagree that absent such an attachment her motion lacked adequate support. The employee used her right to depose the impartial examiner and this, together with the judge's findings and the doctor's candid testimony demurring from an opinion as to the psychological condition, properly raised the issue of the report's adequacy. Thus, the parties created an adequate record within the statutory constraints to both preserve the issue of and to trigger the requirement for, additional medical evidence. This happened without her attaching to the motion just the kind of material § 11A was enacted to exclude from evidence.
Considering the importance of presenting a clear interpretation of § 11A we make this further comment on the dissent. A significant part of its analysis seems to hinge on its belief that an expert opinion is needed to place in issue the question of medical complexity. See G.L.c. 152, § 11A (2). Here we rely on the administrative judge's finding crediting the employee's testimony of her current condition that "[w]hen she gets depressed she will go to a dark room for a couple of days." (Dec. 5.) A judge who credits such testimony should allow further evidence when neither the § 11A report nor that physician's deposition provides an opinion on the medical issue raised by those findings. Had the judge discredited that testimony, her appeal here would lack support. Such is the power of fact finding, where the judge maintains domain over the factual issues by assigning testimony the weight it is due. The law only requires that once factual determinations have been made, the procedures that follow assure an accurate resolution of the issues in contest. Lebrun v. Century Markets, 9 Mass. Workers' Comp. Rep. ___ (November 28, 1995).
Because we vacate the underlying decision, we do not address the factual context of the termination of all medical benefits as of November 30, 1992 any more than to say that we see no basis for such a ruling in the record. (Dec. 10.) Once liability for an industrial accident has attached, then given the mutability of medical conditions, a judge's orders should not deny future medical benefits when denying a claim for weekly benefits. Finally, as regards the subject decision, there is no merit to the employee's claim for a hearing fee. See G.L. 152, § 13A.
In summary, we vacate and remand the case for further findings in accordance with this opinion.
_________________________ Edward P. Kirby Administrative Law Judge
_________________________ Susan Maze-Rothstein Administrative Law Judge
Is the action of an administrative judge in denying a motion for additional medical evidence arbitrary, capricious or contrary to law when an impartial examiner is unable to render an opinion on a medical condition — under the circumstance where the physician was not provided with any medical records indicating that such condition currently existed and the employee presented no complaints about such condition at the time of her impartial examination — and the employee made no offer of proof that she in fact had expert opinion evidence on that current condition to offer? I think not, and so dissent.
The majority opinion ignores critical language in § 11A in its discussion of what an impartial opinion must address. See majority at 4. Section 11A provides that the impartial medical examiner's report "shall,where feasible, contain a determination of the following: (i) whether or not a disability exists." It may not be feasible to render an opinion on a medical condition not noted in the current records provided the impartial physician and current symptoms of which are not reported in the history provided by the employee at the time of examination.
The statute vests the judge with discretion to handle such situations. Section 11A provides: "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."
By ignoring the words "where feasible" regarding the required contents of the § 11A report, the majority opinion creates a "right" to additional medical evidence which the statute clearly does not grant. The judge may permit additional medical evidence based solely on an employee's lay complaints, if he finds that justice requires it to properly adjudicate the employee's claim. However, the statute, by using the word "may" rather than "shall" makes it clear that this power is discretionary and not mandatory.
The danger presented by the majority view is that an employee may withhold medical information from the impartial examiner and then use that the physician's inability to opine on a condition stemming from that lack of information as a basis to force the opening of the medical record. Either inadvertently or intentionally, the employee here gave the impartial medical examiner no information either in medical records submitted to him or verbally during the examination that she was currently suffering from the psychiatric illness of depression. Is it any wonder then that the physician felt unable to comment?
Section 11A requires the employee to provide the impartial examiner with all relevant medical information. This step in the impartial process is so important that the legislature provided penalties for noncompliance. The failure of the impartial physician to review the medical records forwarded by the impartial unit prior to examining the employee presents factor for the judge to consider in ruling on inadequacy.
Section 11A provides in pertinent part: "Failure of an employee to report to an impartial medical examiner agreed upon or appointed under this section or under section eight, after due notice and without cause, and failure to submit to such examiner all relevant medical records, medical reports, medical histories, and any other relevant information requested without good reason, shall constitute sufficient cause for suspension of benefits pursuant to section forty-five."
Section 11A(2) requires the impartial examiner to render an opinion on permanent impairment and loss of function. Section 36(2) requires that such assessments be determined in accordance with the standards set forth in the American Medical Association Guides to the Evaluation of Permanent Impairments. Reading these two sections together, it is obvious that a violation of those standards may render a report inadequate.
Evaluating permanent impairment or losses of function involves evaluating changes that have occurred over a period of time because of a work injury. Evaluation using the AMA Guides requires the integration of previously gathered medical information with the results of a current clinical evaluation. To characterize the impairment fully, the evaluation must be carried out in accordance with the directions in the Guides. American Medical Association, Guides to the Evaluation of Permanent Impairment (3rd ed. revised, 1991) at 3.
At conference the parties produce medical, hospital and rehabilitative records relevant to the claim. § 10A(1). The employee is required by § 11A(2) to submit to the impartial medical examiner "all relevant medical records, medical reports, medical histories and any other relevant information requested."
The AMA Guides provide:
In practice, the first key to effective and reliable evaluation of impairment is a review of office and hospital records maintained by the physicians who have provided care since the onset of the medical condition . . . Before formal evaluation is carried out . . ., an analysis of the history and course of the medical condition, including the findings on previous examinations, the treatment and responses to treatment, and the impact of the condition on life activities, must support a conclusion that an impairment is permanent and stabilized. . . .
This information gathering and analysis serves as the foundation upon which the evaluation of permanent impairment is carried out . . . emphasis supplied.
Id. at 3.
To render a proper impartial report, the impartial medical examine must integrate the previously gathered medical information with the results of the current clinical evaluation. Here the impartial medical examiner did not review the records prior to the examination. However, he did review them afterwards and testified that the discrepancy in protocol made no difference. Whether or not this was true was a factual question posed to the administrative judge at the February 1, 1994 motion hearing.
The employee claimed that the impartial report was inadequate because at the time of the clinical examination, the doctor was unaware of the prior psychiatric history and did not inquire of the employee about her current psychiatric condition. (Tr. 2 at 4.) We can infer from the judge's denial of the employee's motion that he felt the discrepancy in procedure was harmless. Although another judge may have decided the issue differently, it certainly was not arbitrary or capricious on this record to reach that conclusion.
An administrative judge is granted discretion by § 11A to allow additional medical evidence due to inadequacies in the impartial physician's report or complexities in the medical issues. G.L.c. 152, § 11A(2). The premise set forth by this panel in Lebrun v. Century Markets, 9 Mass. Workers' Comp. Rep. ___
(November 24, 1995) bears reiteration here. "Judicial discretion,
. . . imports the exercise of discriminating judgment within the bounds of reason . . . enlightened by intelligence and learning, controlled by sound principles of law, of firm courage combined with the calmness of a cool mind . . . [not] moved by any kind of influence save alone the overwhelming passion to do that which is just. Saez v. Raytheon Corp., 7 Mass. Workers' Comp. Rep. 20, 22 (1993) quoting, Davis v. Boston Elevated Railway, 235 Mass. 482, 496-497 (1920).
Regardless of the actual merits of a case, the evidentiary process that exists should add to and not detract from a judge's ability to reach a fair and just conclusion. Procedures must "further the accuracy" of a judge's determinations on pivotal contested issues or else serious due process problems arise. Aime v. Commonwealth, 414 Mass. 667, 682 (1993). Under § 11A(2) the power to rule on adequacy and complexity makes the judge the gate keeper of the accuracy of the medical evidence." Lebrun, supra.
That said, we cannot conclude as a matter of law that the administrative judge here failed to keep the watch and abused his discretion. His decision is not arbitrary, capricious or contrary to law and should therefore be affirmed. G.L.c. 152, § 11C. A more detailed review of the facts of the case supports this position.
The Department of Industrial Accidents appointed Dr. Richard Conway, as the impartial medical examiner. He examined the employee on August 23, 1993 and reviewed the medical records identified by the parties at conference. Those records contained a history of a disabling psychiatric condition prior to the period of this claim. (Reports of Dr. George Rowan, an orthopedist, dated September 2, 1987 [Employee's Conference Ex. A]; Shaugnessy Kaplan Rehabilitation Hospital, dated March 4, 1988 and March 14, 1988 [Employee's Conference Ex. B]; and Dr. Gerald Aronoff of the Boston Pain center, Inc. dated October 11, 1989 [Employee's Conference Ex. D].) Those reports all predated the claim period and did not indicate a prognosis that the depression would continue or be permanent.
The medical records provided the impartial medical examiner which are contemporaneous with the period of the current claim (commencing in July 1992) do not contain a psychiatric diagnosis. The employee's treating physician, Donald R. Pettit, reported on July 22, 1992 that the employee "had checked into a local retreat hospital in Florida for psychiatric evaluation over the winter [of 1991-92] and that this had improved her status." He advised her to attempt part-time sedentary work and to see him as needed. He had not seen her since April 13, 1992. Dr. Pettit's follow up report dated August 3, 1992 also did not mention current continuing psychiatric problems. (Employee's Conference Ex. E F.) The employee's other contemporaneous expert, Dr. Robert Levine was board certified in psychiatry and neurology. He did not diagnose any psychiatric condition. In his opinion, the employee was capable of returning to her regular work without restrictions as a sales representative for Nynex which is principally a light duty job. (Employee's Conference Ex. G at p. 5.) Thus the records from the employee's own experts did not support her current psychiatric claim.
After examination and review of these records, Dr. Conway reported:
On review of her past medical records, and on the basis of the physical examination which I conducted, I did not find evidence of any disabling physical condition in Ms. Girkout-Swan. Although Ms. Girkout-Swan complains of persistent pain in the midline of the low back and right side of the low back, sometimes radiating into the right lower extremity, there were inconsistencies in her examination. There was cogwheeling during the test for strength in the extensor hallucis longus, and her ability to dorsiflex the right foot was variable during the examination. Although she had very weak dorsiflexion of the right foot on formal testing, there was no foot-drop as she walked. Her straight leg raising while sitting was full and painless, but she had only 25 degrees of straight leg raising available on the right side while lying down. She was able to flex forward only 15 degrees at the hips, although when sitting she had a full 90 degrees of hip flexion available to her. There was no atrophy in the calf on either side, and her deep-tendon reflexes were active and symmetrical.
I did not find objective signs of any pathology in the low back, and therefore I do not feel that there is any physical condition in the low back causing disability or impairment.
(Report at 3.)
After receipt of the impartial examiner's report, the employee moved for additional medical evidence on the grounds that the report was inadequate and/or the medical issues complex. She gave the following reasons:
1) She suffered an industrial injury on December 12, 1985 and subsequently again on July 1, 1987. She's been under the care of a variety of physicians including an orthopedic surgeon who has diagnosed myofacial pain syndrome and ongoing chronic cervical sprain. She has also been treated by and has suffered from problems of chronic pain and severe depressive reaction secondary to chronic pain syndrome.
2) The physician selected as an impartial examiner is an orthopedic surgeon.
. . . . [T]he impartial examination report of an orthopedic surgeon is inadequate as it does not address all these areas not is Dr. Richard Conway qualified to address all these areas . . .
No medical reports were attached to the motion. Nor did the motion request the administrative judge to take judicial notice of the medical reports marked at conference and submitted to the impartial physician.
The judge denied the motion but permitted the parties to depose the impartial medical examiner on November 8, 1994. The employee's prior medical records were brought to the attention of the impartial examiner at deposition, and he testified that he would not have asked the employee any different questions or administered any different tests had he been aware of the medical history of a depressive reaction prior to her examination. (Dep. 16-17; 21.) He testified: "I take a history from the patient, and I'm guided by the information I get, and I ask the appropriate questions." (Dep. 21.)
Although the impartial medical examiner allowed for the possibility that the employee's persistent complaints might be related to a depressive reaction and felt unable to render an opinion on that psychiatric condition as it was outside of his expertise (dep. 29-30), he testified that the employee had not indicated that she was experiencing any problem with her psychological outlook or her emotional situation. (Dep. 38-39.) She gave him no indication that she was currently under any psychiatric or psychological care at the present. (Dep. 40.)
On examination, the employee reported pain. (Dep. 24- 25.) When asked to assume the accuracy of the history contained in the medical records of her treating physicians, the doctor opined that a diagnosis of chronic pain syndrome would be appropriate. (Dep. 18-20.) However, he did not believe that the employee had myofacial pain syndrome or chronic pain syndrome which was related to the work injury because he did "not think they're related to trauma of that type." (Dep. 28, see also 24.)
In the impartial medical examiner's opinion, the employee was capable of performing work offered by her employer. (Dep. 43.) The employee's complaints to him were inconsistent with her snowmobiling activity (dep. 45) and her physical examination (dep. 34-37).
After deposing the impartial medical examiner, the employee renewed her motion for additional medical evidence. Hearing was held on the renewed motion on February 1, 1994. (Tr. 2.) As one of the additional grounds for the motion that the impartial physician's report was inadequate, she argued the doctor's failure to review the medical records forwarded by the department, in advance of her examination, made him unaware that depression and chronic pain syndrome had been diagnosed and caused him not to inquire of the employee about these diagnoses. (Tr. 2 at 4; dep. 14-15.) She also argued that the report was inadequate because the doctor was unable to comment on her psychiatric condition. (Tr. 2 at 6.) The insurer responded that the employee requested an orthopedic impartial at conference and that she had ceased actual psychological or psychiatric treatment in 1989, three years prior to the period of incapacity presently in dispute. (Tr. 2 at 7; but see report of psychiatric treatment in the winter of 1991-92, Employee's Conference Ex. E F, supra.)
The doctor did review the records prior to rendering his report.
At the hearing on the motion for additional medical evidence, neither party formally offered any medical reports as exhibits or as offers of proof. Nor did they explicitly request the administrative judge to take judicial notice of the medical reports marked at conference and submitted to the impartial physician. However they did refer to the reports in their arguments. See, e.g. Tr. 2 at 7-8. Although it would have been better practice for counsel to explicitly request judicial notice, on this record we would not infer error if the judge had reviewed the documents referred to in counsels' arguments. It is unclear from this record whether the administrative judge did review these records prior to ruling on the motion for inadequacy. If he did so, their contents would have provided a rational reason to deny the motion, as they failed to show any psychiatric disability during the claimed period of incapacity. If he did not, then the record is bare of any compelling reason to believe that additional medical evidence of a psychiatric illness actually existed.
Motions for additional medical evidence, like motions to reopen, should not be granted unless the material sought to be offered is material not only because it is relevant but also because it may likely affect the adjudicatory result. See McElhinney v. Massachusetts Bay Tranp. Auth., 9 Mass. Workers' Comp. 349, 352 (1995). For this reason, it behooves the parties to fortify their arguments for additional medical evidence with all relevant information, including but not limited to the relevant medical reports sought to be admitted, the various reports previously submitted to the impartial physician, sworn lay testimony and expansion on the proposed new medical evidence by oral argument of the motion on the record and/or additional testimony. See id. at 352, fn. 2, citing Davis v. Boston Elevated Ry., 235 Mass. 482, 492 (1920). The parties should take care that all this relevant information is properly presented so that it is preserved on the record for further appellate review.
From the transcript of the motion hearing, it is obvious that the administrative judge carefully considered the arguments of both parties. (Tr. 2, February 1, 1994, 1-23.) He ruled that the impartial medical report was adequate and the issues not complex. We can infer from his ruling that he agreed with the insurer's arguments.
Section 11A's grant of power to take medical evidence in addition to that provided by the impartial medical examiner "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" provides a constitutionally necessary release valve for the otherwise tight control of medical evidence provided by § 11A.
Our review of the judge's discretionary exercise of that power is limited to whether the judge's action was arbitrary, capricious or contrary to law. G.L.c. 152, § 11C. Unless the facts of the case require additional medical evidence as a matter of constitutional law, then the sole question presented is whether the administrative judge acted arbitrarily and capriciously, in other words, abused his discretion.
The court has defined an abuse of discretion as "arbitrary determination, capricious disposition, or whimsical thinking," Davis v.Boston Elevated Ry., 235 Mass. 482, 496, 126 N.E. 841 (1920), or "idiosyncratic choice," Berube v. McKesson Wine Spirits Co., 7 Mass. App. Ct. 426, 433, 388 N.E.2d 309 (1979), quoting Restatement (Second) of Judgments s. 122 comment g (Tent. Draft No. 6, 1979). See Restatement (Second) of Judgments s. 74 comment g (1982).
Our standard of review is not substituted judgement. Frazier v.Cumberland Farms, 7 Mass. Workers' Comp. Rep. 36, 39 (1993). See McEwen's Case, 369 Mass. 851, 854 (1976); Gherardi v. Rexnord, Inc., 7 Mass. Workers' Comp. Rep. 229, 230 (1993). There is no error of law amounting to an abuse of discretion simply because a reviewing administrative law judge might have reached a different result had he or she been present at hearing. For purposes of this appeal, it is sufficient if the administrative judge could have denied the motion for additional medical evidence within the bounds of his discretion; beyond that appellate inquiry is at an end. See Scannell v. Ed. Ferreirinha Irmao, Lda., 401 Mass. 155, 159-160 (1987) (motion to vacate default judgment).
The majority opinion appears to exceed the reviewing board's statutory standard of review and engage in fact-finding. The judge's recitation of the employee's medical history preceding the current claim period at p. 4 of his decision does not constitute a finding by him that the employee is currently suffering from a medically disabling condition of depression; it merely acknowledges the treatment history preceding the current claim period. Nor does the judge's acceptance of the employee's testimony that she was feeling depressed constitute a finding by him that she is, during the current period of her claim, mentally ill. Depression is a normal human emotion which everyone occasionally feels. It is a rare human being who does not experience feelings of depression when hurt and unable to fully function.
The employee proferred no expert medical opinion to support her motion for additional medical evidence. Expert medical evidence is required in psychiatric disability cases. Lavoie v. Westfield Public Schools, 7 Mass. Workers' Comp. Rep. 77, 81 (1993). In its absence, there is no basis upon which to find that the judge's denial of the motion was arbitrary or capricious.
A profer of medical evidence is also required to create a constitutionally compelling argument that the record has to be reopened for additional medical evidence. Only when the § 11A evidentiary bar rises to the level of constitutional due process violation does a "right" to submit additional medical evidence exist as a matter of law. The employee here did not present a record which would support such a constitutional claim. There is no basis to find that the judge's denial of the motion was contrary to law.
Section 11A's strictures on receipt of medical evidence will be completely circumvented if we allow every lay expression of emotional disturbance to force the judge to allow additional medical evidence. It makes no sense to require additional medical evidence where the employee's own medical experts, whose reports were produced at conference, do not support her current claim of medical disability from a psychiatric sourceand where she proferred no other expert medical opinions supporting her psychiatric claim.
The purpose of § 11A is to "to avoid or minimize situations where 'dueling doctors' present conflicting medical evidence concerning the nature and cause of the employee's injury and the degree of disability."Scheffler's Case, 419 Mass. 251, 257 (1994) Additional medical evidence is not required for harmless errors in procedure. See Whitlock's Case, 361 Mass. 878, 281 N.E.2d 606, 607 (1972) (errors in admission of evidence harmless in light of other evidence in record). To rule otherwise would defeat the goals of § 11A of increasing efficiency and reliability and avoiding litigation. Additional medical evidence should be taken "only where the judge finds that is truely needed". Ways and Means Committee, An Act Relative to Fair and Effective Compensation of Injured Workers at 5 (December 1991).
The judge here carefully weighed the parties' arguments on inadequacy and complexity and did not find that further evidence was required. (Tr. 2 at 22-23.) Although on this record we may have ruled differently, we cannot say that his ruling was beyond the scope of his authority, arbitrary, capricious or contrary to law. G.L.c. 152, § 11C. We therefore lack the power to vacate the decision on the motion.
For these reasons, the decision should be affirmed.
________________________ Suzanne E.K. Smith Administrative Law Judge
Filed: December 19, 1995