Opinion
BOARD No. 062567-91
Filed: November 3, 1995
REVIEWING BOARD DECISION
(Judges Maze-Rothstein, Kirby and Smith)
APPEARANCES
Kevin J. McAllister, Esq., for the employee.
Richard W. McLeod, Esq., for the insurer.
The parties cross appeal from a decision that authorized discontinuance of the employee's compensation benefits. In that decision the administrative judge adopted part of the report of a statutory medical examiner pursuant to G.L.c. 152, § 11A, while finding the report inadequate as to a different aspect of causality. Finding error we vacate the judge's decision in part, and remand the case for further findings consistent with this opinion.
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. (January 26, 1995).
The employee, an assembler for approximately 20 years, worked for the last three of those years fabricating thermostats. (Dec. 5.) Her job duties included constant use of both hands. (Tr. 21-23.) She stretched, screwed and soldered thermostat cable. (Dec. 6.) The employee also used instruments such as tweezers, pliers, battery operated screw drivers, a label maker, a foot pedal and a cutting machine. Id.
On November 15, 1991, the employee slipped and fell at work. She injured her neck and back causing persistent pain in her left arm and leg. (Dec. 4, 5.) Section 34 temporary total incapacity benefits were voluntarily paid for those injuries. The insurer eventually sought to discontinue or modify the employee's benefits. After a § 10A conference, the judge ordered the insurer to pay § 35 partial compensation based on the employee's $400.57 average weekly wage and a $160.00 assigned earning capacity. Both parties appealed from the conference order. Prior to the de novo hearing, the employee was allowed to join a claim that her repetitive work through November 15, 1991 resulted in bilateral carpal tunnel injuries. (Dec. 2.)
A "lay" evidentiary hearing took place on January 8, 1993. The employee had not yet been examined by the § 11A doctor. Both parties moved to strike the case from the hearing list on the grounds that scheduling a hearing prior to receipt of the § 11A statutory medical exam contravened § 11A(2). The motions were denied. The employee also filed a motion to submit further medical evidence. The judge verbally denied that motion. (January 8, 1993; Tr. 10-17, 110-111.)
Dr. Massand, the § 11A physician examined the employee on March 25, 1993. The "medical" hearing took place on May 19, 1993. During that hearing, the employee again moved to submit additional medical evidence from her treating physicians. The judge orally denied this motion as well. (May 19, 1993 Tr. 12.) She ruled the medical issue was "not complex" and that Dr. Massand's § 11A report was "adequate". (May 19, 1993 Tr. 12.)
The judge issued her decision on October 27, 1993. Contrary to her oral rulings, in the decision the employee's motions to submit additional medical "testimony" were allowed on the grounds of medical complexity and the inadequacy of the § 11A report. The judge remarked that the additional medical testimony had not been submitted (Dec. 3), which is understandable given the prior procedural history.
Dr. Massand in his § 11A report found that the employee was no longer disabled as a result of her back and neck strain or sprain. (Bd. Ex. 3, 3.) The judge adopted the report of Dr. Massand as prima facie evidence regarding those injuries, and concluded that the employee suffered from no present impairment as a result of those injuries. (Dec. 8.) The judge also found that the doctor's assessment of the employee's bilateral carpal tunnel syndrome was lacking, in that:
. . . there was no indication in his report that he examined her for that problem. He merely made a conclusionary (sic) statement that 'Her bilateral carpal tunnel syndrome is not causally related to her accident.' He did not address the issue as to whether the condition was related to the Employee's work for the Employer or whether it resulted from repetitive use or trauma. (Dec. 7.)
Given the causal deficiency in the § 11A opinion, the judge found that, while the employee had symptoms of bilateral carpal tunnel syndrome, there was no evidence of a causal relationship between that condition and either the November 15, 1991 incident or repetitive use of her hands at work. (Dec. 8.) On that basis, the judge decided that the employee had failed to sustain her burden of proof causally tying the carpal tunnel condition to the workplace. However, the employee's rights were left open to pursue a separate claim for that injury at a later date. (Dec. 8-9.)
On appeal, the employee first argues error in the denial of both parties' motions to strike the case from the hearing list until after the § 11A statutory examination was conducted and the physician's report was received. We agree. As we stated in O'Brien v. Blue Cross/Blue Shield, 9 Mass. Workers' Comp. Rep. ___ (January 26, 1995), the legislature clearly established that "[n]o hearing shall be commenced sooner than one weekafter such report has been received by the parties". (Emphasis added); G.L.c. 152, § 11A(2). The final order on this appeal obviates any need to address this issue further.
We recognize that the administrative judge did not have the benefit of our decision in O'Brien, supra at the time of the hearings. We are also aware that 452 Code Mass. Regs. § 1.11(1)(d) provided:
. . . in any hearing conducted pursuant to M.G.L.c. 152, § 11 where medical issues will be presented to an impartial physician all medical records will be marked for identification only and forwarded to the impartial physician if a M.G.L.c. 152, § 11A(2) examination has not been conducted at the time of the M.G.L.c. 152, § 11 hearing. (Emphasis added).
This regulation, promulgated by the department and effective on December 31, 1993, allowed for a "lay" testimonial hearing before the § 11A report was available. In O'Brien, supra, the regulation was not applied because of its clear conflict with G.L.c. 152, § 11A turning the "legislative sequence on its head". See O'Brien, supra and accompanying text; McKenna v. U-Mass. Boston Harbor Campus, 9 Mass. Workers' Comp. Rep. ___, ___ (April 14, 1995).
Next, the employee argues that the judge's verbal denial of her motion to present additional medical evidence due to the inadequacy of the impartial report and/or complexity of the issues, followed by the contradictory hearing decision allowance of said motion, was arbitrary and capricious. (See Dec. 3.) The record provides no assistance in reconciling the contrary rulings. While we agree with the judge's conclusion in the final analysis, see infra, the overall inconsistency of the rulings was arbitrary.
The outcome of the contradictory oral and written rulings regarding additional medical evidence effectively precluded the employee from meeting her burden of proof. Beyond the point at which the parties could act, the judge ruled that additional medical evidence was to be allowed, apparently because the impartial report did not adequately address the causal issue relating the employee's carpal condition to her employment. (Dec. 3, 7.) Given this inadequacy, there was a clear need for additional medical evidence, which the judge recognized in her decision. However, the fact that the parties did not learn of the inadequacy ruling until the decision, made it impossible for the employee to advance the additional evidence allowed. This, in turn, made inevitable the employee's failure to meet her burden of proof on causation of her carpal infirmity. The confusing evidentiary process here placed the employee squarely and inescapably between the proverbial hammer and anvil without recourse to support said burden.
In the decision the judge found the medical issues complex, and the § 11A report inadequate, specifically with regard to the treatment of the carpal tunnel issue. (Dec. 3, 7.) We think that the judge ruled correctly, for two reasons, which we now discuss.
The § 11A opinion in this cases does not sufficiently respond to contested medical issues and thus is clearly inadequate. Section 11A(2) sets out the factors that the impartial report must address including disability and extent thereof, causal relationship, medical end result and loss of function, if applicable. Once the judge allowed joinder of the claim for carpal tunnel syndrome, the issue of causation in this case required an expert medical opinion on both the spinal and the carpal conditions. The judge correctly found that the § 11A report addressed the employee's spinal injuries. The judge recognized this when she adopted the examiner's opinion on the cause and status of those injuries as prima facie evidence. (Dec. 8.) However, the report failed to address whether causation existed between the employee's carpal tunnel condition and the repetitive use of her hands at work. This issue was part of the claim, and the impartial physician's failure to adequately address it renders the report inadequate.
The medical issues which must be addressed are set out in § 11A(2) as follows:
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.
The "medical issues" under each § 11A(2)(i)(iii) category in a given case can — as here — be quite involved.
Moreover, because said report constitutes " prima facie evidence of the matters contained therein," where an inadequacy has been found the question arises what becomes of the report's prima facie character? G.L.c. 152, § 11A. The parameters within which prima facie evidence operates were early defined, and thoroughly explored, in Cook v. Farm Serv. Stores, Inc., 301 Mass. 564 (1938). See also Anderson's Case, 373 Mass. 813, 817 (adopting the same definition of prima facie evidence for purposes of cases arising under c. 152, § 7A). We do not see that the concept of prima facie evidence is any different under § 11A.
Section 7A has a prima facie evidentiary effect unless overcome by opposing evidence. The opposing party has a burden of production where § 7A applies. Questions of due process would arise were § 7A opponent denied the means of meeting said burden.
[P]rima Facie evidence is "evidence," remains evidence throughout the trial, and is entitled to be weighed like any other evidence upon any question of fact to which it is relevant. [Citations omitted.] Prima facie evidence means evidence which not only remains throughout the trial but has up to a certain point an artificial legal force which compels the conclusion that the evidence is true. . . . Cook, 301 Mass. at 566. (Emphasis added).
The administrative judge here identified such a point. She found the § 11A examiner merely concluded that the bilateral carpal tunnel syndrome was "not causally related to her accident" (i.e., her compensable slip and fall) (emphasis added). (Dec. 7.) The judge then pointed to the deficiency in that opinion, stating that the doctor failed to address whether the condition related to the employee's repetitive work or resulted from repetitive trauma at work. (Dec. 7.) Where no § 11A opinion was offered on the relationship of the carpal condition to the repetitive work in contention, there was nothing in that regard to which prima facie weight could apply. Thereby, the report was rightly deemed inadequate in that it failed to sufficiently address a contested aspect of causation. G.L.c. 152, § 11A(2)(iii). Because this is the only legally supportable conclusion the judge could reach on her findings, we affirm the final ruling on the report's inadequacy.
As asserted by the employee, we note that the judge believed where additional medical evidence is allowed that § 11A(2) limits additional medical evidence to depositional testimony only, but does not provide for additional medical records to be submitted. (May 19, 1993 Tr. 12.) In fact, § 11A(2) reads in pertinent part: ". . . the administrative judge may . . . authorize the submission of additional medical testimony when . . . said testimony is required. . . ." (Emphasis added).
On appeal the employee argues that sanction of additional medical evidence requires allowance of submissions pursuant to c. 233, § 79G. We agree. The provisions of G.L.c. 233, § 79G, prescribe and codify a valuable hearsay exception for admission of sworn medical information into evidence in lieu of live testimony. See also 452 Code Mass. Regs. § 1.12, 1.13. We must assume the legislature was aware of G.L.c. 233, § 79G when it enacted § 11A. Statutes which have commonality of subject matter or purpose are in pari materia. 82 C.J.S. Statutes § 366 (1953). All statutes with such commonality should be read, interpreted and harmonized in connection with one another. Id. Both G.L.c. 283, § 79G and c. 152, § 11A(2) address practice and procedure for admission of medical evidence. Though § 11A speaks of the allowance of additional medical "testimony", the exclusion of other forms of medical evidence, once a ruling of inadequacy or complexity has been entered, would sow discord and not harmony between the respective statutes.
Chapter 233, § 79G which clearly applies to this and "any" agency reads in pertinent part as follows:
In any proceeding commenced in any court, commission or agency, . . . reports, including hospital medical records, relating to medical, dental, hospital services, prescriptions, or orthopedic appliances rendered to or prescribed for a person injured, or any report of any examination of said injured person, including, but not limited to hospital medical records subscribed and sworn to under the penalties of perjury by the physician, dentist, authorized agent of a hospital or health maintenance organization rendering such services . . . shall be admissible as evidence of the . . . diagnosis of said physician . . . the prognosis of such physician . . . the opinion of such physician . . . as to proximate cause of the condition so diagnosed, the opinion of such physician . . . as to disability or incapacity, if any, proximately resulting from the condition so diagnosed; provided, however, that written notice of the intention to offer such . . . report as such evidence, together with a copy thereof, has been given to the opposing party or parties, or to his or their attorneys, by mailing the same by certified mail, return receipt requested, not less than ten days before the introduction of same into evidence, and that an affidavit of such notice and the return receipt is filed with the clerk of the court, agency or commission forthwith after said receipt has been returned. Nothing contained in this section shall be construed to limit the right of any party to the action to summon, at his own expense, such physician . . . for the purpose of cross examination with respect to such . . . record and report or to rebut the contents thereof. . . .
Amended by St. 1987, c. 540; St. 1988, c. 130.
We read c. 233, § 79G as providing a vehicle for written medical attestation which does not conflict with § 11A(2) when additional medical evidence is sanctioned. This interpretation fosters an accord between the related statutes for matters arising in this forum. See Pierce's Case, 325 Mass. 649, 656-657 (1950) (harmonizing the sections of the employment security act and c. 152); see also, Gardener v. Mass. Turnpike Auth., 347 Mass. 552, 559-561 (1964) (harmonizing acts involving agency practice and procedure). It would therefore be error to exclude further documentary medical evidence offered pursuant to c. 233, § 79G where there is a finding of complexity of the medical issues and/or inadequacy of the § 11A report.
The employee argues that G.L.c. 152, § 11A impermissibly delegates the fact finding function of the administrative judge to the § 11A medical examiner in violation of both the federal and state constitutions. We find nothing in the statute that transfers final adjudicatory responsibilities to members of the medical community. The medical opinion on which causality is to be based must be one that matches the facts as found by the administrative judge. Scheffler, v. Sentry Ins., 7 Mass. Workers' Comp. Rep. 219, 226 (1993) aff'd Scheffler's Case, 419 Mass. 251 (1994). This is true because § 11A is but "one component of a larger adjudicative system in which administrative judges (and the appellate courts, when called on) decide whether compensation is due an employee for an injury claimed to have been sustained at work."Scheffler's Case, at 255. To the extent that § 11A doctors make factual determinations on the non-medical facts or legal issues in a case, such views are ordinary evidence outside the area of medical expertise for which they are consulted. Id. And of course their non-medical views can not be accorded the statutory weight. Id.
To our knowledge, currently Massachusetts is the only state with an impartial medical provision where the appointed examiner's opinion can become the sole medical evidence in the case to the exclusion of all other medical evidence. G.L.c. 152, § 11A(2). Courts in other states have struck down as unconstitutional statutes not wholly unlike § 11A. SeeDation v. Ford Motor Co., 314 Mich. 152 (1946); Hunter v. Zenith Dredge Co., 220 Minn. 318 (1945). In 1991, Maine enacted an impartial statute effective as of October 7, 1992. ME Rev. Stat. Ann. tit. 39-A, § 312. The Maine statute is significantly different from our § 11A: it contains no evidentiary exclusions. Id.
In this vein, the employee asserts, the judge's finding of no disability requires reversal. Since we find that the report that underpinned this finding was correctly ruled inadequate we vacate this finding.
The insurer contends that the employee's appeal should be denied because she suffered no prejudice from the inconsistent rulings on inadequacy and complexity. We do not agree that the employee's rights are of necessity protected by the ruling which left the carpal claim open for subsequent refiling despite a finding of no liability by reason of the employee's failed burden of proof. See McElhinney v. M.B.T.A., 9 Mass. Worker' Comp. Rep. ___ (June 30, 1995); Anderson v. Gordon Aluminum Vinyl, 9 Mass. Workers' Comp. Rep. ___ (June 30, 1995).
For the foregoing reasons, we vacate so much of the decision as found that the employee did not meet her burden of proof regarding the carpal tunnel issue. We also vacate the judge's apparent ruling that documentary medical evidence cannot be admitted as "additional medical testimony" under § 11A. As to the back condition, given the O'Brien, supra violation involving the timing of the hearing and the receipt of the § 11A medical report discussed above, we vacate the determination of incapacity arising from the back. On remand the judge shall consider additional medical evidence, including offerings pursuant to c. 233, § 79G, and shall make further findings consistent with this opinion. The judge may take additional lay testimony as justice requires. During the pendency of the remanded hearing, we reinstate the § 35 conference order for partial incapacity benefits. The insurer is to pay employee's counsel attorney's fees in the amount of $1,500.
So ordered. _________________________ Susan Maze-Rothstein Administrative Law Judge
_________________________ Edward P. Kirby Administrative Law Judge
_________________________ Suzanne E.K. Smith Administrative Law Judge
Filed: November 3, 1995