Opinion
BOARD No. 08588789
Filed: December 16, 1998
REVIEW BOARD DECISION
(Judges Carroll, Levine and Maze-Rothstein)
APPEARANCES
James A. McDonald, Jr., Esq., for the employee.
Margaret H. Paget, Esq., for the self-insurer.
The employee appeals a decision in which an administrative judge discontinued payment of workers' compensation benefits based on the opinion of the self-insurer's expert physician, which opinion was introduced as additional medical testimony pursuant to G. L. c. 152, § 11A(2). Because the judge rejected the opinion of the § 11A impartial medical examiner for reasons unsupported by the record, however, we reverse the decision and recommit the case for further findings.
The employee injured his left hand and lower back while working as a mechanic on November 26, 1988. (Dec. 4-5.) The self-insurer accepted liability for the injury and paid § 34 temporary total incapacity benefits and, later, ongoing § 35 partial incapacity benefits. (Dec. 3.) Following denial of its complaint to discontinue weekly benefits, the self-insurer appealed to a hearing de novo.
Prior to the hearing, the employee underwent a § 11A(2) impartial medical examination by Dr. John Molloy, who also wrote the required report. The self-insurer filed a motion to declare the August 2, 1996 impartial report inadequate on the basis that the doctor failed to discuss the specific nature of the employee's present medical disability and physical limitations. Acting within his discretion, the judge allowed the motion and permitted the parties to introduce additional medical evidence. Thereafter, several medical records and reports were submitted on behalf of the employee and self-insurer and the deposition of Dr. Molloy was taken.
General Laws c. 152, § 11A(2), provides, in pertinent part:
The impartial medical examiner . . . shall examine the employee and make a report. . . . The report of the impartial medical 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 of medical certainty any such disability has as its major or predominant contributing 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.
In his decision, the judge rejected the prima facie medical opinions of the impartial examiner, concluding that Dr. Molloy failed to identify which disc was herniated, failed to provide an adequate and sufficient opinion regarding the employee's physical limitations, and mischaracterized the findings of an MRI of July 8, 1993. (Dec. 7.) The judge then adopted the opinions of the self-insurer's examiner, who opined that the employee had no ongoing causally related medical disability. Based on these findings, the judge authorized the self-insurer to discontinue the payment of § 35 weekly partial incapacity benefits. (Dec. 11.)
On appeal, the employee alleges several errors. One is dispositive. The employee argues that the judge's rejection of the § 11A physician's opinion was without rational grounds in the evidence. We agree. Once medical evidence in addition to the impartial physician's medical report is allowed into evidence and if that evidence warrants a contrary conclusion, then the prima facie evidence in the impartial report loses its artificial legal force and the judge becomes free to adopt all, part, or none of the § 11A doctor's opinion. See Amon's Case, 315 Mass. 210 (1943);Bedugnis v. Paul McGuire Chevrolet, 9 Mass. Workers' Comp. Rep. 801, 803 (1995). However, he is not free to mischaracterize it or fail to consider the entire record. Turcotte v. Westinghouse Elec. Corp., Mass. Workers' Comp. Rep. 300, 303 (1995). Moreover, the judge's choice to adopt none of the § 11A medical opinion had to be as a result of rational decision making, see Scheffler's Case, 419 Mass. 251 (1994), and not the product of mischaracterization of that evidence. See Ata v. KGR, Inc., 10 Mass. Workers' Comp. Rep. 56 (1996). "Findings made must be adequately supported by the evidence and inferences drawn therefrom must be reasonable."Moretti v. Moretti Construction Co., 10 Mass. Workers' Comp. Rep. 98, 99 (1996), citing Judkins's Case, 315 Mass. 226, 228 (1943). Absent such support, the findings are arbitrary. Id. The reasons given by the judge here for rejecting the opinion of the impartial examiner are not supported by the evidence, casting doubt on the legitimacy of the judge's rejection thereof.
Dr. Molloy's opinions, admitted at hearing, appear not only in his August 2, 1996 report (Statutory Exhibit #1) but also in his earlier report of November 4, 1994 (Employee's Exhibit #6, which was part of the additional medical evidence introduced at hearing) and in his deposition testimony. However, the judge appears to have ignored or mischaracterized the totality of this evidence. First, the judge stated that the impartial physician failed to identify which disc he believed to be herniated. (Dec. 7.) However, at his deposition the doctor in fact identified the L5-S1 disc as the herniated disc. (Impartial Dep. 15.) Moreover, the impartial physician had examined the employee two years earlier, in the report of which he identified the L5-S1 disc as herniated. (Employee's Ex. #6.) Next, the judge asserted that the impartial physician did not indicate what objective test he relied on to arrive at his diagnosis of herniated lumbar disc. (Dec. 7.) This assertion is erroneous, as the doctor opined in his November 4, 1994 report, "The absent ankle reflex on the left . . . is conclusive evidence that he does have a herniated lumbar disc." (Employee's Ex. #6., see also Impartial Dep. 38, "objective finding".) The judge then stated that the impartial physician "failed to set out any specific physical limitations on the employee for my evaluation in these proceedings." (Dec. 7.) Whatever deficiency existed in the § 11A medical report as to this issue, it was corrected in the doctor's deposition:
Dr. Molloy first performed an impartial exam on November 4, 1994, related to an earlier request to modify or discontinue weekly benefits. Dr. Molloy's report of his first impartial exam is Employee's Exhibit #6.
An impartial physician's deposition testimony has the same prima facie impact as his report, Iandosca v. Rotman Elec. Co., 10 Mass. Workers' Comp. 558, 561 (1996), until and unless additional medical evidence is allowed and found to warrant a contrary conclusion. See Bedugnis v. Paul McGuire Chevrolet, 9 Mass. Workers' Comp. Rep. 801, 803 (1995).
While the judge was within his discretion to find the impartial medical examiner's report inadequate and therefore to authorize the submission of additional medical evidence, he had to consider all of the additional medical evidence before him in deciding which opinion(s) to adopt. He does not appear to have done that.
Q: What is the significance in the cause of the diminished ankle reflex which he has?. . .
A: This indicates there's pressure on one of the nerves in the spine from the herniated disk.
Q: Is that an objective or a subjective finding?
A: It's an objective finding.
(Impartial Dep. 37-38.)
A: I think it's unlikely that he could do a full eight-hour job.
Q: Would you think he could do say halftime, light duty?
A: That's possible.
Q: What restrictions would you place upon him?
A: Well, he should be free to move around, has (sic) necessary shift from a standing to a sitting position or perhaps lie down periodically if necessary. Should not be required to lift anything more than 15 or 20 pounds.. . .
Q: With respect to bending down and picking things up say from the floor or floor level, would this injury reduce or restrict or limit his ability to do that?
A: Yes, it would very seriously affect his ability to do that.
(Impartial Dep. 9-11.) Finally, the judge stated that the impartial physician mischaracterized the MRI findings. (Dec. 7, 10.) While it is correct that the MRI report of July 8, 1993 showed "Mild disc degeneration at L3-4 and L5-S1 [and] . . . no evidence of disc herniation," (Dec. 7.), the judge is incorrect that the impartial doctor mischaracterized the findings. In his deposition the doctor properly characterizes the MRI findings and explains why they are not decisive:
Dr. Molloy does not specifically mention the MRI in his 1996 (Statutory Ex. #1) but he did refer to it in his earlier, 1994, report (Employee's Exhibit #6.) and, having considered it along with his findings upon physical examination as well as several reports, records and a CT scan of February 13, 1989, Dr. Molloy opined that the employee had a hernitated disc. Moreover, in his deposition, Dr. Molloy properly characterizes the MRI findings and, as stated above, explains why they are not decisive; depositional testimony is considered to be part of the impartial doctor's report. See footnote 2.
Q: Doctor, it's true that if you reviewed that [MRI] report, the conclusion of the 1993 MRI states that there is no evidence of disk herniation; isn't that correct?
A: Yes, they describe disk degeneration at several levels.
Q: They said there's no evidence of disk herniation?
A: That's right.
Q: So in spite of this report, you still diagnosed the employee with a herniated disk?
A: Right. That does not coincide with the physical examination [absent ankle reflex] or with the CT scans. . . . (emphasis added).
(Impartial Dep. 17.)
We cannot say what the judge's finding would have been had he accurately considered Dr. Molloy's medical opinions in determining whether the employee remained incapacitated beyond April 9, 1996. Where the judge inexplicably ignored or otherwise failed to consider relevant medical testimony by the impartial physician in making his decision as to whether to adopt or reject that physician's opinions, his decision cannot stand. Turcotte v.Westinghouse Elec. Corp., 9 Mass. Workers' Comp. Rep. 300, 303 (1995); see also Wall v. LePages, Inc., 11 Mass. Workers' Comp. Rep. 359, 361 (1997) (decision reversed where judge did not take into account the entire causation opinion of the § 11A examiner);Ata v KGR, Inc., 10 Mass. Workers' Comp. Rep. 56, 57 (1996) (decision reversed and recommitted where judge mischaracterized expert's opinion on causal relationship).
Accordingly, it is appropriate to recommit the case to the judge to make further findings consistent with this decision.
So ordered.
________________________ Martine Carroll Administrative Law Judge
________________________ Frederick E. Levine Administrative Law Judge
________________________ Susan Maze-Rothstein Administrative Law Judge
MC/jdm
FILED: December 16, 1998