Opinion
BOARD NO. 5997592
Filed: September 13, 1996
REVIEWING BOARD DECISION
(Judges Maze-Rothstein, McCarthy and Smith)
APPEARANCES
James N. Ellis, Esq., for the employee
Thomas A. O'Reilly, Esq., for the insurer
The employee appeals a decision that denied his claim for G.L.c. 152, § 34 temporary total incapacity benefits, based on a ruling that a prior unappealed conference order precluded a further claim without a showing that his medical condition had worsened. The employee contends this was error as a matter of law. We agree. Because the preclusive effect of a conference order is limited, there is no requirement that worsening be shown. We vacate the dismissal and remand the case for further findings consistent with this opinion.
On December 30, 1992, Edward Hendricks, the employee, sustained an industrial lower back injury when he fell off a loading dock and landed on a dolly. By the following day, his injury prevented him from returning to work. (Dec. 3.)
The insurer voluntarily paid the employee benefits, without prejudice, until July 2, 1993. (Insurer's Brief 1.) The employee then filed a claim for § 35 partial incapacity benefits on November 2, 1993. After a § 10A conference, the insurer was ordered to pay § 35 benefits for a closed period from July 3, 1993 to February 15, 1994. Id. Neither side appealed.
Although the employee's condition improved slightly after his benefits period ended, he did not recover. (Dec. 3, 6.) Shortly after the end of his first award of benefits, he filed a new claim on March 28, 1994 for further § 34 total incapacity benefits from February 16, 1994 and continuing. (Dec. 2; Insurer's Brief, 1.) After a second conference, before a different administrative judge, the claim was denied. Id. The employee appealed to a hearing de novo.
A physician examined the employee on September 22, 1994 pursuant to G.L.c. 152, § 11A. (Dec. 3.) He opined that as of the examination date, the employee had a work related medical disability from his usual employment activities due to lifting and sitting intolerances. Id. Adopting the doctor's opinion and combining it with the employee's vocational profile, the judge determined that the employee was incapacitated. (Dec. 3, 7.) However, he dismissed the claim, ruling that the employee's right to further compensation was precluded by the unappealed conference order. (Dec. 7, 8.) That prior order, the judge reasoned, estopped additional filings unless the employee could show his condition had worsened. (Dec. 5.) The judge ruled that without such a showing, "the previous conference order bars a further order of weekly benefit at this time." (Dec. 7.) The employee appeals, arguing this ruling was legal error.
General Laws c. 152, § 11A "gives an impartial medical examiner's report the effect of 'prima facie evidence' with regard to the medical issues contained therein, and expressly prohibits the introduction of other medical evidence to rebut the prima facie effect of the impartial medical examiner's report unless the judge finds that additional medical testimony is required due to the complexity of the medical issue involved or the inadequacy of the report submitted by the impartial medical examiner." O'Brien v. Blue Cross/Blue Shield, 9 Mass. Workers' Comp. Rep. 16 (1995) appeal docketed, No. 07058 (SJC October 30, 1995).
Section 10A(3) states, "[f]ailure to file a timely appeal . . . [of a conference order] . . . shall be deemed to be acceptance of the administrative judge's order and findings. . . ." G.L.c. 152, § 10A(3). In interpreting this statute, we have held that "[b]y statutory directive, an unappealed conference order binds the parties to all matters covered by it." Aguiar v. Gordon Aluminum Vinyl, 9 Mass. Workers' Comp. Rep. 103, 110 (1995). That is to say, an unappealed conference order can preclude nothing more than what it specifically awards. In the case at bar, there was a February 23, 1994 unappealed conference order that awarded a closed period of benefits. Its preclusive effect goes only to the closed period it ordered. The order, however, cannot reach beyond its own terms. The employee may claim additional benefits outside the period the order covered. Thus, by way of § 10A(3) the employee cannot challenge the unappealed conference award of two hundred dollars per week during the closed period from July 3, 1994 to February 15, 1994. But, he may claim benefits from February 16, 1994 and continuing.
Countering the employee's charge of legal error, the insurer approaches from a slightly different tack. It contends that § 16 affords additional benefits only if the employee proves a worsening condition because "[t]he employee was then entitled to a hearing at which he was accorded an opportunity to sustain his burden of proving a change in his physical condition." (Insurer Brief 3, quoting Gaetani v. Flours Constructors, Inc., 7 Mass. Worker's Comp. Rep. 384, 386 (1993).)
There are two problems with this assertion. First the plain language of § 16 appears only to address the effect of subsequent decisions on entitlement to further benefits — not the effect of conference orders on that entitlement. General Laws c. 152, § 16 states in pertinent part:
[w]hen in any case before the department it appears that compensation has been paid or when in any case there appears of record a finding that the employee is entitled to compensation, no subsequent finding by a member or the reviewing board discontinuing compensation on the ground that the employee's incapacity has ceased shall be considered final as a matter of fact or res adjudicata as a matter of law. . . .
G.L.c. § 152, § 16. (Emphasis added). Findings are made only in decisions after evidentiary hearings. There are no findings, subsequent or otherwise, made in a conference orders. Section 16, therefore, has no bearing on the ramifications of an unappealed conference order.
Second, the insurer's reliance on Gaetani, supra, as support for the requirement of a showing of worsening after an unappealed conference order is misplaced. Gaetani involved a prior hearing decision not a previous conference order. Section 16 itself makes no mention of worsening. Nevertheless, in order to succeed in a later claim for increased benefits where a prior hearing decision has established the parameters of incapacity, § 16 has been interpreted, at least certain in circumstances, to require that an employee show a deterioration in his medical condition from the time of the earlier hearing decision such as was not foreseen by the administrative judge. See also Foley's Case, 358 Mass. 230 (1970); Pernorio v. ARA Smith Transfer, 8 Mass. Worker's Comp. Rep. 304, 305 (1994).
Finally, because they issue from very different proceedings, conference orders are very distinct from hearing decisions. Conferences and the orders attendant thereto developed in 1971 as a means of expediting compensation without full evidentiary hearings. See Assuncao's Case, 372 Mass. 6, 9 (1977). As such, conferences do not confer the range of due process protections that evidentiary hearings afford the parties. See Kaminsky v. Univ. of Massachusetts, 9 Mass. Worker's Comp. Rep 623 (1995), appeal docketed, No. 95-J-908 (AC November 29, 1995) (comparing conferences and hearing decisions on due process grounds). For example, they lack a true fact finding process; there is no sworn testimony, witnesses are not heard, no record is created and orders are not "supported by reasoned opinion[s]." See Heredia v. Simmons Co., 10 Mass. Workers' Comp. Rep. ___ (May 31, 1996). Unlike a hearing decision, a conference order is based on information submitted not on record evidence and provides no "findings" from which a worsened medical conditions can be established. Moreover, without findings we are unable to perform our appellate function since, upon review of the conference order, we cannot learn what the contended condition was worse than. See Praetz v. Factory Mutual Eng'g. Research, 7 Mass. Workers' Comp. Rep. 45, 46-47 (1995). Thus, a prior conference order and a prior hearing decision cannot be given the same preclusive effect, and the requirements for a showing in a subsequent hearing based on the new claim cannot be identical.
Because § 10A does not set out a standard to be applied in evaluating the information presented at conference, the judges are left to fashion orders which grant, for a variety of reasons, some, all or none of the relief sought. For example, a judge may begin or end benefits on the order's issuance date; a date that can have no relationship to the information prepared prior to the conference for presentation. Or an order may award a closed period of prospective benefits, that can reflect more the anticipated length of time before the case reaches hearing, than the ultimate merits of the case.
The unappealed conference award here contained no findings on the extent of the employee's incapacity. The order is silent in this regard. The employee cannot be required to show a worsening from an order that tells us nothing about how the award was arrived at or why it ended.
Accordingly, we reverse the decision denying benefits on the basis of claim preclusion and remand for a determination of the extent of employee's incapacity subsequent to the unappealed conference order date.
So ordered
___________________________ Susan Maze-Rothstein Administrative Law Judge
___________________________ William A. McCarthy Administrative Law Judge
Filed: September 13, 1996
I agree that the judge erred in holding that res judicata barred this claim for further compensation, but disagree with much of the majority's unnecessary dicta. Following the reviewing board precedent of Aguiar v. Gordon Aluminum Vinyl, 9 Mass. Workers' Comp. Rep. 103 (1995), I would hold only that, under the special circumstances of this case, the judge was not precluded from awarding further compensation if he determined that justice so required. I would vacate the decision and remand for further findings of fact consistent with this concurrence.
FACTS
After paying without prejudice, the insurer properly discontinued payments, contesting ongoing incapacity. (Insurer's Brief 1.) Hendricks then filed his first claim for compensation, alleging ongoing incapacity. (Employee's Claim dated November 2, 1993.) After a § 10A conference on February 15, 1994, an administrative judge ordered the insurer to pay § 35 benefits for a closed period from July 3, 1993 through the date of conference, "plus medical benefits under the provisions of M.G.L.c. 152, § 30." (Dec. 3; Conference Order filed February 23, 1994.) The conference order does not specify the basis for the termination of weekly benefits.
The insurer's Notification of Termination of Weekly Compensation During Payment-Without-Prejudice states as grounds for termination "No Disability: No medical to support continuing disability" and "IME exam 6/18/93 indicates employee capacble [capable] of resuming regular duties." (Notification of Termination dated 6/22/93.)
Neither side appealed the original conference order. Instead, shortly thereafter, Hendricks filed a new claim for further compensation from the date of termination and continuing. (Employee's Claim dated March 28, 1994.) After a § 10A conference on the claim for further compensation, a second judge issued an order of denial. The conference order states the following factual finding in bold print: "I see no significant changes in the employee's condition since the February order . . . which was not appealed." (Denial of Payment filed June 9, 1994.) Hendricks appealed the conference denial.
After a § 11 hearing, the judge denied Hendricks' claim for further weekly benefits but ordered payment of the proposed back surgery. (Dec. filed February 27, 1995.) In this § 11B decision, the judge made the following factual findings: The employee attempted a return to work in April 1994, performing a primarily office-related job, which was unsuccessful because his back could not tolerate the required sitting. (Dec. 3.) The employee testified that, other than some improvement in his pain level due to the wearing of a back brace in the summer of 1994, his condition had remained essentially unchanged since January 1994. Id. The § 11A impartial medical examiner opined that, as of the examination date, the employee's work capacity was limited due to lifting and sitting intolerances. Id. Based upon these subsidiary factual findings, the judge concluded that as a matter of law Hendricks was not entitled to a restoration of his weekly benefits because he had failed to establish a medical worsening since the time of the first conference which resulted in an unappealed termination order.
Hendricks appeals the § 11B denial, arguing that he was not required to establish that his medical condition had deteriorated since the original unappealed conference order. The insurer responds that § 16 requires such proof. I do not interpret § 16 in the limited fashion urged by the insurer or the sweeping fashion discussed by the majority, but agree that the judge erred in holding that the issue of incapacity was concluded by the unappealed conference order.
THE NATURE OF THE CONFERENCE PROCESS
The sole fact that the termination order stemmed from a § 10A conference, as opposed to a § 11 hearing, does not eliminate its preclusive effect. Section 10A conferences are true fact finding processes, albeit abbreviated ones.
The simple and summary procedures specified by G.L.c. 152, § 10A for conferences provide due process. See dissent in Neff v. Commissioner of Dept. of Indus. Accidents, 421 Mass. 70, 80, 653 N.E.2d 556, 561 (1995) (reaching merits of constitutional issue). The parties have an opportunity to be heard at a meaningful time and in a meaningful manner, even though the proceeding is something less than a full hearing conducted under the rules of evidence.Id. The judge meets with the parties and receives information in written and summary form. G.L.c. 152, § 10A(1); 452 CMR 1.10. The injured worker has the opportunity to make an oral as well as a written presentation to the administrative judge. At the conference, unlike at the § 11 hearing, employees may present medical reports prepared by physicians of their own choosing for the judge's consideration. G.L.c. 152, § 10A(1); compare § 11A(2). I agree with Justice O'Connor's opinion in Neff, supra, that the conference procedure conscientiously followed by an administrative judge provides little risk of erroneous deprivation in the typical case. Neff, supra; 421 Mass. at 81-83.
Section 10A(1) provides in pertinent part: . . .
The administrative judge shall require the parties to appear before him for a conference within twenty-eight days of receipt of the case by the division of dispute resolution. The administrative judge may require and receive reports of injury, signed statements of the employee and any witnesses, medical, hospital, and rehabilitation records, and other written and oral matter. At the conference, the parties shall identify the issues in dispute and they shall produce a summary of any anticipated testimony.
452 Code Mass. Regs. 1.10 provides in pertinent part:
(1) . . . Such conference shall be informal, and inquiries and investigations shall not be subject to the rules of evidence applied in this Commonwealth.
(2) The parties shall prepare for submission at the outset of a conference a memorandum setting forth the benefits claimed and the issues in dispute, the facts stipulated, the exhibits to be marked for identification, the names of witnesses to be presented, a summary of their anticipated testimony, the estimated length of the hearing, and such other matter as may be allowed or required . . . At a conference involving a medical issue, the parties shall also identify to the administrative judge as part of the required memorandum:
(a) the medical issue(s) in dispute . . .;
(b) a list of documents to be included in the medical records to be sent to an impartial physician;
(c) any objections to the documents included in the medical records . . . to be submitted to the impartial physician . . .
(3) At a conference, the administrative judge shall make such inquiries and investigations as he deems necessary and shall have the power to require and receive reports of injury, signed statements of the employee and other witnesses, medical and hospital reports and records, and such other oral and written matter as shall enable him to determine whether weekly compensation or medical and hospital bills under M.G.L.c. 152 are due.
(4) No stenographic transcription or electronic recording shall be made of the conference proceedings under M.G.L.c. 152, § 10A, except that the administrative judge, if he deems it to be in the interest of justice, may require such transcription or recording or, with the consent of all parties, may allow any party, at its own expense, to make a transcription or recording of the proceedings.
Section 11A(2) provides in pertinent part:
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.
Both conference and hearing orders in the workers' compensation system have interlocutory aspects and can be temporary in nature. G.L.c. 152, § 16; Aguiar, supra, 9 Mass. Workers' Comp. Rep. at 107-110. However, they both are accorded the same legal status by statute. See G.L.c. 152, § 12 (1) and (5).
Section 12 provides in pertinent part:
(1) Whenever any party in interest presents a certified copy of an order or decision of a board member or of the reviewing board and any papers in connection therewith to the superior court department of the trial court for the county in which the injury occurred or for the county of Suffolk, the court shall enforce the order or decision, notwithstanding whether the matters at issue have been appealed and a decision on the merits of the appeal is pending. In the event that the order or decision is reversed on appeal, the enforcement order shall be deemed vacated and unenforceable from the date of such reversal. If the request for an enforcement order is presented to the superior court for the county of Suffolk, the court may, on motion of any party in interest, order the case removed to the superior court for the county in which the injury occurred . . .
(5) Immediately after the entry of a judgement under this section, whether final or interlocutory, the clerk of the court shall prepare and forward to the department and to the parties an attested copy of such judgement. Upon the entry of an interlocutory judgment under this section recommitting a case to the board, counsel for the parties shall immediately notify said board by appropriate motion for action in accordance with the requirements of such judgement.
The workers' compensation act contemplates that, at conference, judges will apply the provisions of the statute in a conscientious fashion based upon the information provided them by the parties. At conference, an administrative judge attempts to glean the truth from the information provided in summary fashion and issues a preliminary judgement about the amount of compensation to which the employee is entitled under the statute. Error correction is provided by appeal for a § 11 hearing and recoupment of amounts paid pursuant to unlawful conference orders. G.L.c. 152, § 11D(3).
G.L.c. 152, § 10A(3).
Section 11D(3) provides:
An insurer that has paid compensation pursuant to a conference order, shall, upon receipt of a decision of an administrative judge or a court of the commonwealth which indicates that overpayments have been made be entitled to recover such overpayments by unilateral reduction of weekly benefits, by no more than thirty percent per week, of any remaining compensation owed the employee. Where overpayments have been made that cannot be recovered in this manner, recoupment may be ordered pursuant to the filing of a complaint pursuant to section ten or by bringing an action against the employee in superior court.
This record demonstrates no basis to suspect that the first conference judge acted arbitrarily, capriciously or contrary to law in terminating Hendricks's compensation based upon the information available to him at that time. Nor is there any evidence of other extraordinary circumstances which might provide a basis for circumventing the normal issue preclusion rules.
The unappealed conference order is some evidence of no ongoing incapacity. See Himmelman v. A.R. Green Sons, 9 Mass. Workers' Comp. Rep. 99, 101 (1995) (the earlier finding of causally related work incapacity is some evidence of causally connected permanent and total incapacity but it is clearly not conclusive evidence); Russell v. Red Star Express, 8 Mass. Workers' Comp. Rep. 404, 406 (1994) (where the insurer seeks discontinuance of § 34A benefits, the insurer must go forward with evidence of improvement in the employee's condition or a lessening of the degree of incapacity in order to meet its burden). An employee who is asserting incapacity in face of a prior unappealed conference finding that he had none, has the burden to establish a changed condition. See Id. at 407 (At the hearing de novo the judge should take notice of the employee's prior condition, and then make findings on whether it remains the same or has changed).
SECTION 16 AND RES JUDICATA
When Hendricks filed his first claim for compensation, he placed in dispute the nature and extent of his ongoing incapacity. The conference award of a closed period of compensation was a "finding" "discontinuing compensation," within the meaning of those terms in G.L.c. 152, §§ 10A and 16. At that conference, the judge determined that Hendricks was entitled to some compensation. Therefore, as § 16 provides, the unappealed order of termination could not "be considered final as a matter of fact or res adjudicata as a matter of law" and Hendricks was entitled to have his claim for further compensation considered on its factual merits. G.L.c. § 152, § 16.
Section 10A provides in pertinent part:
(2) Within seven days of the conclusion of the conference the administrative judge shall file:
(a) a written order requiring or denying that weekly compensation or other benefits be paid; or
(b) a written order . . . , terminating . . . weekly compensation . . .
. . . . Nothing in this section shall restrict the authority of an administrative judge to order weekly benefits or health care services for a closed period into the future or to order that such benefits or services be initiated, modified, or terminated at a particular date in the future.
Section 16 provides in pertinent part:
When in any case . . . compensation has been paid . . ., no subsequent finding by a member . . . discontinuing compensation on the ground that the employee's incapacity has ceased shall be considered final as a matter of fact or res judicata as a matter of law, and such employee . . . may have further hearings as to whether his incapacity . . . is or was the result of the injury for which he received compensation.
G.L.c. 152, § 16, as amended by St. 1985, c. 572, § 31 (emphasis supplied).
Absent special circumstances not existing here, an unappealed conference order binds the parties to all matters covered by it, precluding relitigation of what was specifically adjudicated.Aguiar, supra, 9 Mass. Workers' Comp. Rep. at 110. In this case, the judge at conference preliminarily adjudicated the issue of whether incapacity was ongoing. By not appealing the conference order, Hendricks accepted the judgement as to his incapacity at that time. See G.L.c. 152, § 10A(3) ("[f]ailure to file a timely appeal . . . [of a conference order] . . . shall be deemed to be acceptance of the administrative judge's order and findings").
Section 16 permits the issuance of an changed compensation order when the employee's condition changes after an order terminating benefits. Mozetski's Case, 299 Mass. 370, 372, 13 N.E.2d 10, 11 (1938). "No time is fixed for making such change. It may be done after even a brief interval." Id. A proceeding to modify the prior order does not reopen the questions determined in making the original order, but opens the subsequent continuance and extent of incapacity. Id., 299 Mass. at 373, 13 N.E.2d 12. The court has interpreted § 16 as requiring changed circumstances to justify the reopening. Foley's Case, 358 Mass. 230, 263 N.E.2d 471 (1970). Therefore, Hendricks had to show some type of changed condition from the status of no incapacity which the prior conference judge had found.
Vocational changes, as well as medical ones, may support a change in the compensation order. See Dawson v. New England patriots, [Patriots] 9 Mass. Workers' Comp. Rep. 675, 677 (1995). The unappealed conference order did not specify the basis for the judge's determination of no ongoing incapacity. It could have been medical or economic or a combination of the two. See Scheffler's Case, 419 Mass. 251, 256 (1994) (weekly incapacity benefits are not due unless the physical injury causes an impairment of earning capacity). Although Hendricks did not present evidence of a medical deterioration, he did present evidence of changed vocational circumstances to support his claim for restoration of benefits.
THE JUSTICE OF ISSUE PRECLUSION IN THIS CASE
The statutory scheme of the workers' compensation act promotes return to work efforts. Compensation may be unilaterally suspended where an employee refuses a suitable job offer, G.L.c. 152, § 8(2)(d) or returns to light duty work, G.L.c. 152, § 8(2)(c). However, under both circumstances, compensation must be immediately reinstated if the employee attempts the job and cannot perform it due to his work injury. There is no reason why this employee should be treated differently.
Persuasive proof that, after a conference termination, an employee has made reasonable efforts to use his remaining powers, both mental and physical, and has been unsuccessful due to his work-related limitations is adequate evidence to support an award of further compensation. See McNeice v. Berkshire Medical Center, 8 Mass. Workers' Comp. 246, 247 (1994) (employee terminated from post-injury job; remand ordered permitting update of medical condition and vocational status from close of evidence). Here, Hendricks produced evidence of a change in his economic condition through an unsuccessful attempt at trial work. There is no reason why he should be barred from the remedy available to others who tried to work and failed due to their injury. I therefore conclude that the judge erred in ruling that Hendricks had to show a change in his medical condition in order to have compensation restored.
Accordingly, I would vacate the decision denying benefits on the basis of claim preclusion and remand for further proceedings, consistent with this concurrence, on the employee's claim for benefits from February 15, 1994 to May 26, 1995. On remand, the judge may find it judicially effieient [efficient] to consolidate this action with the employee's other pending claim for benefits on and after May 26, 1995. ___________________________ Suzanne E.K. Smith Administrative Law Judge