Opinion
BOARD No. 46901-92
Filed: March 13, 1998
REVIEWING BOARD DECISION
(Judges Maze-Rothstein, McCarthy and Smith).
APPEARANCES
J. Channing Migner, Esq., for the employee
Richard E. McCue, Esq., for the insurer
Michael J. Pineault, Esq., for the employer
The employee appeals from a decision denying her claim for G.L.c. 152, § 30 medical benefits. She had been awarded § 35 weekly partial incapacity benefits on her claim for either § 34A permanent and total or § 35 partial incapacity benefits, but her claim for medical benefits to cover psychiatric treatment and a motorized wheelchair was denied. We agree with the employee that the decision is lacking as to these matters. We reverse it in part and recommit the case for further proceedings.
On two occasions, first in May of 1992 and then on October 15, 1992, Ms. Perry, who worked as a telemarketer, suffered an industrial injury when, while exiting the ladies' room, someone simultaneously entered causing the door to strike her left nondominant hand. (Dec. 2, 4-5.) This latter incident caused such pain in her left thumb and forefinger she nearly fainted. (Dec. 5.) The insurer accepted liability for the October 1992 injury. (Dec. 2.) She has had two surgeries with releases for her left hand condition. (Dec. 6.) The employee suffers from life-long diabetes mellitus, heart disease and is an amputee. (Dec. 5-6, 9.) These medical conditions are unrelated to her industrial injury. Mr. Perry takes medications for pain and for a psychiatric condition and uses a prosthesis and occasionally a walker or a wheelchair to get around. (Dec. 6.) However, since her left hand surgeries, she finds it difficult to maneuver a manual wheelchair, which is the basis of her claim for a motorized one. Id.
When her temporary total incapacity benefits were almost exhausted, the employee filed a claim for § 34A permanent and total or alternatively, § 35 partial incapacity benefits, along with a claim for § 30 medical benefits including a motorized wheelchair. (Dec. 1.) The insurer resisted. The claim went to a § 10A conference. (Dec. 2.) The judge ordered the insurer to pay § 35 weekly partial incapacity benefits and assigned a one hundred dollar weekly earning capacity. (Dec. 1.) The employee appealed to a hearing de novo.
See n. 3, infra.
The employee underwent a medical examination pursuant to the provisions of G.L.c. 152, § 11A. The physician opined that the employee's residual pain in her left hand was causally related to her industrial accident. (Dec. 8-9.) The doctor stated that, because of her pre-existing diabetes, her response to the release surgeries had not been good. In the doctor's opinion, the employee could not resume repetitive work with her left hand. (Dec. 9.) He also stated that, since the employee had come to her examination without her wheelchair, he could not comment on whether her left hand impairment made a motorized wheelchair necessary. (Dec. 9-10.) At his deposition, the doctor stated though he reviewed her psychiatric treatment records that he could not give an opinion on the employee's psychiatric condition, because he is not a psychiatrist and did not evaluate her for that. (Dep. 43-44.) After the deposition, the employee filed a motion to reopen the record for psychiatric evidence. (Dec. 12.)
The employee challenged the adequacy of the § 11A report and deposition twice, once before and once after the deposition. (Dec. 12.) She argued that the § 11A physician's report and his deposition opinion were inadequate because in both the doctor failed to address the contested claim for a motorized wheelchair, and for psychiatric treatments. The judge denied the motions, declared the medical testimony adequate and adopted the doctor's opinions. (Dec. 9, 12-13.) He denied the motion to reopen because the employee refused to fully disclose her psychiatric records to the insurer. (Dec. 12.) The judge concluded that the employee's left hand impairment continued to be causally related to the accepted industrial accident, and that the employee was partially incapacitated due to the residual effects of that occurrence and the subsequent surgeries. (Dec. 13.) Based on the residual impairment and her vocational profile, the judge awarded the employee § 35 benefits concluding that partial incapacity left her able to earn up to $7.50 per hour for a twenty-hour work week or one hundred fifty dollars weekly. (Dec. 14.) Because the employee testified that she could drive a car and use a standard wheelchair both at malls and while doing some work around her home, the judge ruled that a motorized wheelchair was neither necessary nor reasonable under § 30. (Dec. 13-14.) Reasoning that the employee's privacy interest in denying full disclosure of her psychiatric records was outweighed by the insurer's interest in having them to defend against the claim, the judge denied both her motions to introduce those records and to join her claim for psychiatric treatment. (Dec. 12.) The judge so ruled without an in camera review of the content of the psychiatric records. The employee appeals to the reviewing board.
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 meet it unless the judge finds the additional medical testimony is required due to the complexity of the medical issues involved or the inadequacy of the report.
The claim for psychiatric treatments for depression was alleged as a sequelae of the work injury. It appears to have been first squarely presented to the judge in argument on the employee's second motion for additional medical evidence on July 30, 1996 nearly a year before the decision was filed on April 29, 1997. (Tr. July 30, 1996, 1-30.)
There were psychiatric reports from 1989 and 1995 submitted as offers of proof with the employee's motion for additional medical evidence, dated May 20, 1996. See (July 30, 1995 Tr. 25-26.)
The employee argues that the judge erred by rejecting her claim for a motorized wheelchair without an expert medical opinion on whether it was reasonable and necessary under § 30. We agree. The judge erred as a matter of law. On this record procedural due process required the allowance of additional medical evidence to address the question of whether the employee's left hand impairment disabled her from using a manual wheelchair.
"[A] finding regarding the reasonableness of medical treatment must be based on expert medical testimony." Cook v. Somerset Nursing Home, 8 Mass. Workers' Comp. Rep. 164, 165 (1994). The § 11A physician's statement that he could not comment on the necessity of a motorized wheelchair, because the employee was not using one when he examined her (Dep. 60), does not constitute an expert opinion as to whether such an apparatus would be medically reasonable and necessary under § 30. "The doctor's statement merely evidences a lack of opportunity, in this particular case" to assess the employee's need for a motorized wheelchair, at those times when she needed to use a wheelchair. See Lebrun v. Century Markets, 9 Mass. Workers' Comp. Rep. 692, 697 (1995). Because the § 11A physician's testimony did not respond to the contest on the employee's occasional need for a wheelchair, the foreclosure of additional medical evidence deprived the employee of a fair opportunity to prove her case. The opinion was inadequate as a matter of law, and additional medical evidence is constitutionally mandated. See § 11A(2);O'Brien's Case, 424 Mass. 16, 22-23 (1997); Mendez v. The Foxboro Company, 9 Mass. Workers' Comp. Rep. 641, 645 (1995) (a § 11A opinion that does not respond to contested medical issues is clearly inadequate and requires additional medical evidence). We therefore reverse the decision and recommit the case for the introduction of additional medical evidence, and further findings on the reasonableness and medical necessity of a motorized wheelchair.
We note another error in the treatment of the wheelchair issue. A claim for medical expenses for a wheelchair, is governed by a distinct provision in § 30, which reads:
In any case where an administrative judge, the reviewing board, the office of education and vocational rehabilitation or the health care services board is of the opinion that the fitting of an employee eligible for compensation with an artificial eye or limb, or other mechanical appliance, will promote his restoration to or continue him in industry, it may be ordered that such employee be provided with such item, at the expense of the insurer.
(Emphasis added). As we stated in Stevens v. Northeastern Univ., 11 Mass. Workers' Comp. Rep. 167, 170 (1997):
This particular aspect of § 30, by virtue of the plain meaning of the language used, includes consideration of practical vocational questions . . . in order to reach whether the contested wheelchair will have a positive effect on "an injured employee's ability to hold a job or obtain a new position." Scheffler's Case, 419 Mass. 251, 256 (1994). The quoted language for § 30, supra, explicitly directs this assessment.
On recommittal, the judge must apply and make findings on the relevant language of § 30.
The employee argues that the denial of her motion for the introduction of her psychiatric records was arbitrary, because the judge decided full disclosure of those records was required without having reviewed them in camera. This proposition is based on G.L.c. 233, § 20B, which sanctions the refusal of disclosing communications between a patient and her psychotherapist, except:
While the better practice would have been to amend the claim by written motion prior to the hearing proceeding, the employee did so in the form of a Motion to Reopen. (Dec. 12.) The merits were argued. (Tr. July 30, 1996, 1-30.) The Motion to Reopen is mooted by this recommittal. The employee can move to join, or the case can proceed to the merits of the psychiatric sequelae of the physical work injury by consent. See 452 Code. Mass. Regs. 1.23; Debrosky v. Oxford Manor Nursing Home, 11 Mass. Workers' Comp. Rep. 243, 245 (1997).
(c) In any proceeding . . . in which the patient introduces his mental or emotional condition as an element of his claim or defense, and the judge or presiding officer finds that it is more important to the interests of justice that the communication be disclosed than that the relationship between patient and psychotherapist be protected.
The courts have advised that the practice when handling the claim of privilege under § 20B should include a voir dire of a testifying witness, Adoption of Seth, 29 Mass. App. Ct. 343, 353 (1990), or an in camera review of the records asserted to be privileged. SeeCommonwealth v. Bishop, 416 Mass. 169, 174 (1993). In the present case, the judge should have reviewed the medical records before ruling that the balance of interests required full disclosure. Accord Lebrun, supra, at 694, n. 4 ("[I]t seems a reasoned judgment on such a motion [for additional medical evidence] would require that supporting documentation attached as an offer of proof should be reviewed.") If the psychiatric issue is joined, see n. 5, supra, the judge on recommittal shall reconsider his ruling on the privileged medical records after an in camera examination of those records.
Finally, the employee contends that a § 13A(5) attorney's fee was due in this case, because the decision ordered medical benefits. Since this case is recommitted, the decision is not final. Whether the employee will prevail remains to be seen. On recommittal the judge shall apply the relevant fee provisions. See G.L.c. 152, § 13A(5); 452 Code Mass. Regs. 1.19 (4).
The case is recommitted for the introduction of additional medical evidence, and further proceedings consistent with this opinion.
So ordered.
______________________________ Susan Maze-Rothstein Administrative Law Judge
______________________________ William A. McCarthy Administrative Law Judge
______________________________ Suzanne E.K. Smith Administrative Law Judge
Filed: March 13, 1998