Opinion
BOARD No. 00405494
Filed: May 21, 1997
REVIEWING BOARD DECISION
(Judges Smith, Maze-Rothstein, and McCarthy)
APPEARANCES
Bernard J. Mulholland, Esq., for the employee.
James A. Garretson, Esq., for the insurer.
The employee appeals from the denial of her motion to reopen her claim in order to introduce further medical evidence. She sought to reopen the decision which awarded only a limited period of § 34 total incapacity benefits, followed by continuing § 35 partial incapacity benefits based upon an earning capacity of $225.00 per week. The administrative judge denied "jurisdiction" over the motion to reopen on the basis that she had issued a decision which the employee had appealed. (Letter dated June 7, 1996.) We agree with the employee that the judge retained authority to consider the motion to reopen after issuing her decision. We therefore recommit the case for a decision on the merits of the motion.
A motion to reopen is akin to a motion for a new trial.McElhinney v. Massachusetts Bay Transp. Auth., 9 Mass. Workers' Comp. Rep. 349, 352 (1995). As we said in that case:
A new trial on the grounds of newly discovered evidence will not be granted unless that evidence was: 1) not available to the party seeking a new trial for introduction at the original hearing by exercise of reasonable diligence; and 2) if it is material not only because it is relevant and admissible but also because in importance it may likely affect the adjudicatory result. DeLuca v. Boston Elevated Ry., 312 Mass. 495, 497 (1942).
These determinations are best made by the judge who presided over the hearing.
The administrative judge is entitled to use her knowledge of what occurred at the hearing in rendering her ruling. She is in a much better position to determine the genuine merits of the alleged newly discovered evidence than the administrative law judges on the reviewing board who must depend solely on the printed page of the record on appeal. See Commonwealth v. Siciliano, 19 Mass. App. Ct. 918, 919, 471 N.E.2d 1359, 1360-1361 (1984) (reopening of criminal proceeding). In ruling on the motion to reopen, the judge is not required to make findings of fact, and her disposal of the motion is to be guided only by the exercise of sound discretion, meaning "sound judicial discretion, enlightened by intelligence and learning, [and] controlled by sound principles of law." Davis, supra, 235 Mass. at 496-497, 126 N.E. at 844. However, the administrative judge must exercise that discretion.
The judge did not lose the power to rule on the motion to reopen when she rendered her decision. See Dunphy v. Shaws Supermarkets, 9 Mass. Workers' Comp. Rep. 473, 474 (1995) andMcElhinney, supra (motions to reopen filed after decisions). Her decision that she lacked jurisdiction to decide the motion cannot stand because it is contrary to law. See G.L.c. 152, § 11C. Although an administrative judge may consider a motion to reopen while an appeal is pending before the reviewing board, to forestall administrative confusion, the moving party should file a duplicate copy of the motion with the reviewing board. The board may then in its discretion stay further action on the appeal until the administrative judge has ruled on the motion to reopen. Accordingly, we recommit the case to the administrative judge for a ruling on the employee's motion to reopen the record.
So Ordered.
_________________________ Suzanne E. K. Smith Administrative Law Judge
_________________________ Susan Maze-Rothstein Administrative Law Judge
Filed: May 21, 1997
In my view the judge correctly refused to reopen the record in April 1996 for admission of medical evidence on causal relationship. That evidence should have been introduced when the judge allowed the employee's motion for such admission in October 1995. The fact that the proffered reports were prepared in February and March 1996 is irrelevant, since the opinions on causal relation between the employee's cervical condition and her physical therapy regimen could have been prepared well before that time. (The employee's other expert, Dr. Doherty, certainly voiced his opinion on the subject in his January 11, 1995 report, an opinion the judge rejected.)
The administrative judge filed her decision on December 29,1995 and on January 24, 1996 the employee appealed to the reviewing board. The motion to reopen was not filed until April 5, 1996! There were no unresolved issues or new claims pending before the administrative judge. The reviewing board clearly had jurisdiction of the case under § 11C when the motion to reopen was filed. Chapter 152 makes no provision for concurrent jurisdiction and creating it by case law invites procedural chaos into our dispute resolution system. If a motion to reopen a hearing on grounds of newly discovered evidence and the motion filed in this case are "akin", they are very distant kin.
Neither did the administrative judge abuse her discretion when she held that she no longer had jurisdiction over the case. Keeping in mind that an "abuse of discretion" consists of action "that no conscientious judge, acting intelligently, could have honestly taken[,]" Davis v. Boston Elevated Railway, 235 Mass. 482, 502 (), I find voice to my concerns in Long v. George, 296 Mass. 574 (1937), which I paraphrase:
In the present case, [I] see no reason to reverse the exercise of discretion [by the administrative judge]. Though its main purpose is to do justice, a lawsuit cannot be an endless search for absolute truth. The interests of the public and of the parties require that litigation end after both parties have had reasonable opportunity to present their evidence and arguments. A party who fails to preserve [her] rights at the proper time cannot renew [her] contentions as of right at later stages. A party is ordinarily denied the privilege of reopening legal proceedings for the purpose of correcting errors resulting from his own negligence or that of his attorney. The delay of five [months] by the [employee] in seeing that the record [contained evidence now argued as necessary to satisfying her burden of proof on the issue of causation] was hardly consistent with diligence. The case was determined, at considerable trouble and expense to the parties and to the public, on the basis of the record as it stood. The [administrative judge], on belated motion of the [employee], was not required to destroy that basis and thus protract the litigation.
Id. at 579-580 (citations omitted).
For these reasons I dissent.
_________________________ William A. McCarthy Administrative Law Judge
Filed: May 21, 1997