Opinion
BOARD No. 03244193
Filed: January 24, 1997
REVIEWING BOARD DECISION
(Judges Smith, Maze-Rothstein and McCarthy)
APPEARANCES
James K. Brownell, Esq., at hearing, Diane R. Gordon, Esq., on appeal, for the employee.
G. Brian Shontz, Esq., at hearing, Edward A. Carey, Jr., Esq., on appeal, for the insurer.
The employee appeals the decision of the administrative judge awarding him a closed period of § 34 total temporary benefits. He argues that the decision should be vacated because he was not provided with a translator at the impartial medical examinations and his hearing testimony was improperly translated. We disagree. Applying the standard for our appellate review contained in G.L.c. 152, § 11C, we find no error and therefore affirm the decision.
Rene Jean Pierre, a native of Haiti, was employed as a laborer for TAD Power Temp for ten years. On July 14, 1993 he injured his head and shoulder when a heavy beam struck him. He treated with a chiropractor and also consulted with several physicians. (Dec. 3-4.)
The insurer paid § 34 temporary total incapacity benefits without prejudice from July 14, 1993 through October 13, 1993. Thereafter, Pierre filed a claim for benefits and a § 10A conference was held. An order for continuing § 34 benefits was issued and the insurer appealed. A hearing de novo was held in front of the same administrative judge who issued a decision establishing liability but ending the period of incapacity on October 26, 1994. (Dec. 1, 2, 6.)
In his appeal, Pierre raises two issues:
1. Whether there were procedural defects in the hearing which materially affected the rights of the employee and which resulted in a denial of due process.
2. Whether the absence of a translator at the two impartial medical examinations led to inaccurate communications between the employee, a native of Haiti with minimal fluency in English, and the examiners.
We find no merit in either contention.
The employee did not request a translator in advance of the impartial medical examination. Dr. William D. Shea, an orthopedic surgeon, examined the employee pursuant to G.L.c. 152, § 11A. No interpreter was present. In his report, Dr. Shea noted that Pierre spoke English as a second language and was not very clear in stating his complaints. Dr. Shea also stated that he was unable to comment on Pierre's complaints of headache, dizziness and loss of balance. He diagnosed a cervical strain and opined that with respect to his musculoskeletal complaints, Pierre could return to his pre-injury work without restrictions. (Bd. Ex. 1.)
Pierre did not challenge the adequacy of Dr. Shea's report based on the lack of a translator at the impartial medical examination. Instead he objected to the adequacy of Dr. Shea's report on the basis that an orthopedist was not qualified to answer all of the medical questions involved in the case. Upon questioning by the judge, Pierre admitted that the report was adequate insofar as it addressed orthopedic matters but argued that it was inadequate as to neurological symptoms. Thereafter the judge allowed a second impartial examination by a neurologist. (Tr. 4-5.) Pierre made no request for a translator for this impartial neurological examination.
The neurologist, Dr. Carolyn Bernstein, took a history from Pierre and stated in her report, "His speech was fluent and articulate. He does obviously have an accent but I had no difficulty in understanding him . . . . He was quite fluent and articulate . . . ." (Bd. Ex. 2.)
Pierre moved to have the report of Dr. Bernstein declared inadequate and insufficient on the ground that the doctor's conclusions were not borne out by her examination. (Tr. 35-36.) He raised no issue about his need for a translator at the examination. The judge denied the motion for additional medical evidence, reserving to the employee the right to depose Dr. Bernstein. The employee did not take the deposition. (Tr. 39.)
It is the responsibility of the employee to indicate a need for translation in a timely fashion. Quintero v. Alberti Construction, 10 Mass. Workers' Comp. Rep. ___, slip op. at 6 (April 30, 1996). The employee here failed to do so. He did not bring the question to the attention of the administrative judge prior to the date of the event at which it was required, nor did he arrange for a qualified interpreter to be provided. The employee at no point prior to the rendering of a decision raised any complaint about the interpretation procedures. He raised the issue for the first time only after he received an adverse decision. His objection at the reviewing board stage of proceedings is both untimely and unpersuasive.
Failure to raise the interpretation issue below renders the matter settled. See Torres v. Pine Street Inn, 9 Mass. Workers' Comp. Rep. 359, 360 (1995) (issues not raised and addressed at hearing will not be addressed on appeal). Objections to the manner of interpretation must be raised at the time the problems arise so that they may be timely corrected. See Maguiel v. Westford Regency Inn and Conference Ctr., 10 Mass. Workers' Comp. Rep. 204, slip op. at 6 (March 15, 1996) (translation issue waived when offer of interpretation rejected). The record is devoid of any objection, written or verbal, by the employee to the interpretation procedures utilized at the hearing. We will not entertain such an objection when it is raised for the first time on appeal.
Moreover, upon review of the entire record before us, we are satisfied that the employee's contentions of unfairness are unfounded, notwithstanding the novel method of interpretation employed at the hearing.
A hearing for the taking of lay testimony was originally scheduled for October 18, 1994. The employee appeared on that day without an interpreter. When the judge found that neither he nor the stenographer was able to completely understand the employee's testimony, the judge stopped the hearing and rescheduled it to allow for interpretation to be arranged. (Tr. 4.) On February 15, 1995 the administrative judge sent a letter to the employee advising him of the continued hearing date and directing him to arrange for the presence of an interpreter. (AJ letter, Feb. 15, 1995.) At the continued hearing, questions were put to the employee in English and he was directed to respond in his native language, Creole, with the interpreter translating the answers to English. The judge did not require translation of the English language questions to Creole. The employee provided appropriate responses to the direct and cross-examination questions giving some of his answers in English and some in Creole. (Tr. 6-23.)
The decision of the administrative judge is affirmed.
So ordered.
__________________________ Carolyn N. Fischel Administrative Law Judge
__________________________ Edward P. Kirby Administrative Law Judge
__________________________ Sara Holmes Wilson Administrative Law Judge
Filed: January 24, 1997