Opinion
BOARD No. 9882188
Filed: October 31, 1995
REVIEWING BOARD DECISION
(Judges Wilson, McCarthy and Fischel)
APPEARANCES
Charles R. Casartello, Jr., Esq. for the employee.
Russell W. Gilfus, Esq., for the self-insurer.
The employee appeals from a hearing decision denying the employee permanent and total weekly benefits and assigning an earning capacity. The employee contends, among other issues, that the administrative judge's decision is unsupported by the evidence and that the provisions of G.L.c. 152, § 11A as applied deprived the employee of procedural due process. After review, we affirm the judge.
The employee, age fifty-one at hearing, had worked as a janitor for the University of Massachusetts, Amherst from 1981 to June 7, 1988, when she experienced back pain while moving furniture at work (Dec. 2). The employee previously had undergone back surgery in 1973 and was asymptomatic until 1986, when she felt some pain while at work (Dec. 2). Her back pain was intermittent between 1986 and 1988, but she continued working nonetheless. The June 1988 incident brought about pain so severe that she stopped working and has not worked since (Dec. 2).
The employee filed a claim for permanent and total incapacity benefits pursuant to § 34A of the Act. At conference, on May 11, 1993, the administrative judge ordered the insurer to pay benefits pursuant to § 34A. The insurer appealed and the matter came before the administrative judge for hearing on December 28, 1993.
Stephen A. Silver, M.D., an impartial medical examiner appointed pursuant to § 11A of the Act, examined the employee. His diagnosis was degenerative disc disease, status post excision of a herniated disc, and chronic lumbar strain, most of which he related to the 1973 back surgery. He opined, however, that the chronic lumbar strain, though superimposed on old injuries, was brought about by the June 1988 moving incident. The administrative judge concluded that the 1988 injury contributed to her present problems and that this was sufficient for liability under the Act in effect at the time of the injury (Dec. 3). He also adopted Dr. Silver's opinion that the employee continues to have a mild, partial temporary disability and a lifting limitation of 15 pounds (Dec. 3).
The definition of "personal injury" has been legislatively narrowed for injuries occurring subsequent to the December 23, 1991 effective date of G.L.c. 152, § 1(7A), as amended by St. 1991, c. 398, § 14. That provision, deemed substantive, now provides in pertinent part:
If a compensable injury or disease combines with a pre-existing condition, which resulted from an injury or disease not compensable under this chapter, to cause or prolong disability or a need for treatment, the resultant condition shall be compensable only to the extent such compensable injury or disease remains a major but not necessarily predominant cause of disability or need for treatment.
Based upon the employee's physical condition and her work history, the administrative judge denied the employee's application for § 34A benefits, found a part-time earning capacity of $100.00 weekly, and ordered that the insurer pay partial weekly benefits pursuant to § 35 of the Act (Dec. 5).
The employee contends that the procedure set forth in § 11A violates the due process clause of the United States Constitution in that the impartial medical examiner's report constitutes prima facie evidence that the claimant cannot rebut by right. The judge complied with the requirements of § 11A(2). The employee, dissatisfied with the judge's determination, asks us to declare the provision unlawful. The issues raised by the employee were in part analyzed by the Reviewing board in O'Brien v. Blue Cross/Blue Shield, 9 Mass. Workers' Comp. ___ (January 26, 1995), where we concluded that we are without authority to declare a statute invalid.
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 . . ., the parties shall agree upon an impartial examiner . . ., or said administrative judge shall appoint such examiner. . . .
. . .
The impartial medical examiner . . . shall examine the employee and make a report. . . . The report of the 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 examiner's report shall constitute prima facie evidence of the matters contained therein.
. . .
The report of the impartial medical examiner shall be admitted into evidence at the hearing. Either party shall have the right to engage the impartial medical examiner to be deposed for purposes of cross examination. 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.
We find that the administrative judge's denial of the employee's motion to submit further medical evidence on the basis of inadequacy of the examiner's report or complexity of the medical issues is warranted on this record. The administrative judge's ruling complied with the requirements of § 11A(2). That ruling, however, is not dispositive of the employee's constitutional concerns. See O'Brien v. Blue Cross/Blue Shield, 9 Mass. Workers' Comp. Rep. ___ (January 26, 1995).
Nonetheless, consistent with our obligation to take up and consider the matters raised, id., we note the employee's argument that § 11A deprives the employee of the full evidentiary hearing required to protect his right to due process. The employee discusses the stages of proceedings at the department beginning with the conciliation, where parties meet and examine their respective positions, but can reach resolution only voluntarily. G.L.c. 152, § 10. If a matter cannot be voluntarily adjusted, it is then forwarded to dispute resolution and assigned for a conference before an administrative judge. G.L.c. 152, § 10A; 452 Code Mass. Regs. § 1.10. The employee points out that the conference is informal, not subject to the rules of evidence, and no record of the proceedings is made by the department. 452 Code Mass. Regs. § 1.10(1)(4). The employee then observes that the conference is a preliminary adjudicatory step, often devoted to setting forth the issues in dispute and the names and anticipated testimony of witnesses to be presented at trial. See 452 Code Mass. Regs. § 1.10(2). We agree that given the complexity of the legal issues that regularly arise in compensation proceedings, and in view of the limited discovery process, many claims cannot appropriately be addressed at the conference stage, and require full testimonial development at hearing. See 452 Code Mass. Regs. § 1.12.
The employee further observes that the statute and regulations provide for a full evidentiary hearing where testimony is taken under oath, the rules of evidence apply, and the record is preserved for appeal by the stenographer's transcription of the verbatim testimony. 452 Code Mass. Regs. § 1.11(4)(5); § 1.15(1). Department regulations provide for opening statements, closing arguments, submission of briefs, motions, requests for findings of fact, and requests for rulings of law, and the decision rendered by the judge must be based entirely on the evidence introduced at hearing. 452 Code Mass. Regs. § 1.11(5)(7). The employee then argues that the hearing "resembles a judicial proceeding" because, after 1911, the employee's common law right to recovery in tort for industrial injury was replaced by those rights contained in the workers' compensation system, granting to employees what the court in LeClair v. Silverline Mfg. Co. Inc., 379 Mass. 21, 27 (1979), deemed a "limited, although substantial, right to be insured against the grievous financial impact that may result from injury in the work place." The employee contends that to protect and preserve the substantial right obtained in exchange for relinquishing common law rights, the statute guaranteed access to a full evidentiary hearing. Section 11A, he asserts, deprives the employee of sufficient opportunity to be heard on the core medical issues, and thus renders the § 11A hearing deficient. This last contention was considered by us in O'Brien v. Blue Cross/Blue Shield, supra.
As we did in O'Brien, we decline to decide the constitutional validity of the impartial medical examiner process under § 11A and await resolution of the issue by an appellate court. See Board of Selectmen v. Framingham Civil Service Commission, 366 Mass. 547, 554 (1974).
The decision is affirmed.
____________________________________ Sara Holmes Wilson Administrative Law Judge
____________________________________ Carolynn N. Fischel Administrative Law Judge
____________________________________ William A. McCarthy Administrative Law Judge
Filed: October 31, 1995