Opinion
BOARD No. 02170093
Filed: May 7, 1998
REVIEWING BOARD DECISION
(Judges Smith, McCarthy and Maze-Rothstein).
APPEARANCES
Richard Heavey, Esq., for the employee.
David Lee Turner, Esq., for the self-insurer.
The self-insurer appeals from a decision increasing the employee's compensation to § 34A permanent and total benefits from the § 35 partial benefits previously awarded. Because the decision issued prior to the date of a scheduled status conference, depriving the self-insurer of its statutory opportunity to respond to the § 11A impartial physician's report, we reverse the decision and recommit for further proceedings.
Edward Sylvester received a personal injury to his left knee arising out of and in the course of his employment as a forestry supervisor/arborist in the Brookline Parks Department. The self-insurer voluntarily accepted his claim and paid benefits without prejudice until December 11 1993, when it seasonably terminated them pursuant to G.L.c. 152, § 8(1). Sylvester thereupon filed a claim for compensation. After hearings on May 10, 1994 and August 2 1994, he was found to be only partially incapacitated, with an earning capacity of $400 per week. (Dec. May 31, 1995 [Original Dec.]; Dec. February 3 1997 [Further Dec.] at 2.) The judge found that, as a result of the work injury, Sylvester was limited in climbing, crawling and squatting but remained capable of working in a supervisory capacity. (Original Dec. 9.) After weighing Sylvester's work limitations, age, work experience and transferable skills, the judge concluded that by September 15 1993, Sylvester had recovered an ability to earn $400 per week. Id. at 11. The employee appealed and the reviewing board summarily affirmed the original decision. (Summary Disposition filed May 15, 1996.)
Two years later, Sylvester filed the pending claim for § 34A permanent and total incapacity benefits. (Employee's Claim dated August 23, 1995.) After a § 10A conference, a different judge denied the § 34A claim and awarded lesser included § 34 temporary total benefits from August 22, 1995 to October 20, 1995 with ongoing § 35 partial compensation, based upon a regained $400 per week earning capacity. The judge also ordered the self-insurer to pay for the arthroscopic surgery performed on August 22, 1995 and for subsequent reasonable and related left knee treatment. (Further Dec. 2; Conference Order filed March 14, 1996.) The employee appealed for a hearing de novo. (Further Dec. 2; Appeal of Conference Proceeding filed March 18, 1996.)
Sylvester moved to clarify the conference order to include a specific order of payment for his proposed left knee replacement surgery. (Motion dated March 22, 1996.) The judge allowed the employee's motion. (Handwritten Allowance on said Motion.) The insurer also moved to clarify the conference order, arguing that it had previously overpaid Sylvester by $21,000 and requesting that the order be amended to include the recoupment ordered in the decision filed May 31, 1995. (Self-Insurer Motion for Clarification dated March 25, 1996.) The judge also allowed this motion. (Handwritten Allowance on said Motion.) Sylvester made a "Further Statement Regarding Motion for Clarification" requesting the self-insurer be ordered to pay for his left knee replacement surgery. (Motion filed March 26, 1996.) The judge subscribed this statement as "allowed." ( Id.; Further Dec. 2.) The case then proceeded to hearing.
Pursuant to G.L.c. 152, § 11A(2), Sylvester underwent an impartial medical examination on June 6, 1996. (Further Dec. 3.) After receipt of the report recommending the total knee replacement, the self-insurer agreed to provide Sylvester with § 34 temporary total compensation benefits and pay for medical treatment until he reached a medical end result from the surgery. (Tr. 25-26, 36-37; Letters from Heavey to Turner dated September 27, 1996, and from Turner to Heavey dated October 2, 1996, referenced in Self-Insurer Brief and contained as exhibits therein.) At the hearing on September 26, 1996, the self-insurer contested only "disability and extent thereof." (Dec. 3; Insurer's Issues Statement.) The self-insurer no longer contested payment for medical services that had been rendered. The proper method of recoupment for the prior overpayment remained in dispute. (Tr. 4, 25-26.)
Because the employee underwent surgery for a total knee replacement after the impartial examination, the judge allowed the parties to give the impartial physician additional medical records from the surgical and post-surgical period. Sylvester then underwent a second impartial examination on November 7, 1996. (Further Dec. 1, 3-4.) The impartial physician's reports were admitted as exhibits; neither party deposed him. (Further Dec. 1, 4.)
Based upon the impartial physician's reports, the judge made the following findings: Sylvester had sustained "significant damage to the medical meniscus and probably other structures in the knee, leading to the rapid aggravation of what had been mild and asymptomatic degenerative arthritis in that joint." (Further Dec. 7.) The surgery resulted in considerable improvement in Sylvester's quality of life. ( Id. 8.)
Despite the impartial physician's opinion that Sylvester had regained a sedentary earning capacity post-surgery, the judge concluded that Sylvester was "not capable of earning wages in other than a trifling manner and that this incapacity [wa]s permanent." ( Id. 9.) This judgement was based upon an analysis of vocational and medical factors. ( Id. 8.) There was no finding that such factors differed from those in existence at the time of the last adjudication. Compare Original Dec. 5-6, 11. Although the judge found that Sylvester had not reached a medical end result, (Further Dec. 8), he concluded that Sylvester's total incapacity was permanent. ( Id. 9.) He ordered the insurer to pay § 34A permanent and total incapacity benefits from August 22, 1995 and continuing, together with benefits for medical treatment, including the total knee replacement surgery on June 11, 1996. ( Id. 12.) The judge also awarded an enhanced fee of $6,526.99. ( Id.)
The date of arthroscopic surgery. (Further Dec. 6.)
The self-insurer appeals the orders for § 34A permanent and total incapacity benefits and the enhanced legal fee. It makes several arguments: 1) the weekly benefit order violates the principles of res judicata and collateral estoppel; 2) it has been deprived of procedural due process by the failure to hold a hearing after receipt of the impartial report; 3) factual findings are wholly unsupported by the record; 4) the enhanced fee award is unsupported by any record evidence; and 5) the decision fails to address the recoupment issue. It requests that the case be recommitted and reassigned to a different judge. Because the self-insurer was not given its statutory procedural rights, we reverse the decision and recommit for further proceedings.
The lay hearing in this case occurred on September 26 1996, after the initial impartial report, but prior to the supplemental one requested to address Sylvester's condition after his knee replacement surgery. See Employee's Exs. 2, 3. At the conclusion of the lay hearing, the judge instructed the parties to obtain the additional impartial report and then notify him about what further action was necessary. (Tr. 119; Letter from Judge to the Parties dated October 8, 1996.) By letter dated January 9 1997, the self-insurer requested a status conference with the judge. The conference was scheduled for January 28, 1997. The self-insurer's attorney did not appear and the conference was rescheduled for February 6, 1997. (Letter from Judge to Parties dated January 28, 199[7].) The judge filed his decision three days before the rescheduled status conference. (Further Dec., filed February 3, 1997.)
It is arbitrary and capricious, and contrary to law, to decide a case before all the evidence is submitted. Cowe v. Community Human Service, Inc., 5 Mass. Workers' Comp. Rep. 113, 114 (1991). Where a decision issues in advance of a scheduled hearing, the decision is premature and must be vacated. Nova v. Rocky Neck Seafood Corp., 10 Mass. Workers' Comp. 759, 760 (1996). Section 11A(2) provides that the impartial medical examiner's report must be given to the parties at least seven days in advance of the lay hearing. This procedure insures that the parties will have a fair opportunity to present evidence in rebuttal. Here the case was continued for receipt of the supplemental impartial report, but the continued status conference was never held. Under the circumstances in this case, the issuance of the decision without providing the opportunity to be heard after receipt of the impartial physician's report contravened the statutory procedure and mandates a remand for further proceedings. McKenna v.University of Massachusetts, 9 Mass. Workers' Comp. Rep. 183, 186-187 (1995).
Although evidence is not usually presented at a status conference, which is designed to discuss future scheduling, the conference does provide the opportunity for hearing on any motions for additional medical or lay evidence.
On recommittal, the judge will again face the question of the employee's burden of proof. We therefore briefly address it. The employee is claiming § 34A permanent and total incapacity benefits; he had previously been awarded only § 35 partial incapacity benefits. Because the employee is seeking an increase in the benefit level since the last adjudication, he must establish that his condition has deteriorated between the date of the prior evidentiary hearing, when he was found to be only partially incapacitated, and the date on which the evidence is heard in this case. Foley's Case, 358 Mass. 230, 232-233 (1970); McEwen's Case, 369 Mass. 851, 854 (1976). The deterioration must be due to the industrial accident, rather than merely to advancing age. Foley's Case, at 232. Either the employee's medical or vocational condition must have worsened. Lally v. K.L.H. Research Development, 9 Mass. Workers' Comp. Rep. 427, 429 (1995).
To receive § 34A benefits, the employee must persuade the judge that his incapacity is permanent and total. "The word 'permanent' is the opposite of temporary or transient." Yoffa v. Metropolitan Life Ins. Co., 304 Mass. 110, 111 (1939). Under the workers' compensation act, as under a policy of life insurance, incapacity "is permanent if it will continue for an indefinite period which is likely never to end, even though recovery at some remote or unknown time is possible. But if recovery is reasonably certain after a fairly definite time, the [incapacity] cannot be classed as permanent." Id.; Burrill v. Litton Indus., 11 Mass. Workers' Comp. Rep. 77, 79 (1997).
We make several other comments on issues raised by the self-insurer that may resurface on recommittal. At the hearing, the employee did not claim a § 8 penalty and the insurer did not contest the employee's medical treatment. (Tr. 4.) Therefore the judge should not have addressed these issues. See Taylor's Case, 44 Mass. App. Ct., 495 (1998) (re-opening to address issue not raised by parties is error);Gebeyan v. Cabot's Ice Cream, 8 Mass. Workers' Comp. Rep. 101, 102-103 (1994) (where there is no claim and therefore no dispute, it is error to adjudicate the question).
The decision to award an enhanced legal fee appears to have been erroneously influenced by the judge's conclusions about those non-issues. As we are reversing the decision in toto, the judge should address anew the issue of an enhanced legal fee, providing the parties with an opportunity to be heard on the question. Any decision to award an enhanced hearing fee should be grounded in the record evidence and based on specific factual findings about the complexity of the hearing dispute or the effort expended by the attorney at hearing. See G.L.c. 152, § 13A(5). Section 13A(5) does not authorize use of an enhanced legal fee to punish conduct. The remedy for an unreasonable defense is provided solely by G.L. c. 152, § 14(1).
The judge wrote: "The actions of the self-insurer in the administration of this claim have caused the counsel for the employee to expend significant time in representing his client. Specifically, even though the self-insurer had a decision and order from Judge Merlo to pay § 30 benefits, the self-insurer was sluggish in payment of the August 22, 1995 arthroscopy, and reluctant in authorizing the total knee replacement, which had been approved by utilization and (sic) review." (Dec. 10.)
On recommittal, the issue of recoupment will again arise. Section 11D(3) provides, in pertinent part:
An insurer that has paid compensation pursuant to a conference order, shall, upon receipt of a decision of an administrative judge . . . which indicates that overpayments have been made be entitled to recover such overpayments by unilateral reduction of weekly benefits, by no more than thirty percent per week, of any remaining compensation owed the employee.
(Emphasis supplied.) An insurer may not recoup an overpayment by reducing medical benefits. An insurer does not need judicial permission to begin such recoupment. It may now unilaterally commence to recoup those benefits paid pursuant to the original conference order filed March 16 1994, that the original decision determined were not due. It may not recoup any benefits voluntarily paid without prejudice.
A judge does not have the discretion to limit the insurer's unilateral right to a thirty percent recoupment. Rohrbacher v. AMA Fabricators, 11 Mass. Workers' Comp. Rep. 317 (1997). The self-insurer has the right to reduce its ongoing weekly payments by the full thirty percent allowed under § 11D(3). If the self-insurer believes that "overpayments have been made that cannot be recovered in this manner," it may file a complaint pursuant to § 10 and request consolidation with the pending proceeding. G.L.c. 152, § 11D(3).
But see 452 Code Mass. Regs. 1.07(k) which appears to restrict such remedy to situations where there are no ongoing benefits. It provides: "A complaint requesting recoupment pursuant to M.G.L.c. 152, § 11D(3) shall be accompanied by a copy of the decision of an administrative judge or court of the Commonwealth indicating that an overpayment has been made and an affidavit by the insurer attesting that weekly benefits are no longer being paid to the employee so that unilateral reduction cannot be implemented." (Emphasis supplied.) We render no opinion on this question.
As a final matter, we address the self-insurer's request for re-assignment to a different judge. Recommittal to a different judge is mandatory only in that unusual circumstance where a judge's bias, misconduct or other infirmity threatens the fairness of the recommittal proceeding. In this case, the judge decided issues not in dispute and rendered a premature decision. These errors alone do not compel reassignment. See Miller v.Massachusetts Turnpike Authority, 10 Mass. Workers' Comp. Rep. 629, 629 (1996) (judge decided causal relationship issue, which had not been disputed; case recommitted to same judge for new decision); Eggelston v. Henschel Corp., 10 Mass. Workers' Comp. Rep. 825, 827 (1996) (decision issued prior to hearing on § 11A impartial medical report; case recommitted to same administrative judge for further proceedings). Under these circumstances, it is appropriate to leave the question of whether to continue on the case to the judge's sound discretion.
A judge may recuse, at a party's request or sua sponte, any time he feels unable to render a fair and impartial decision. See D'Olimpio v. Bricklayers Allied Craftsmen, 7 Mass. Workers' Comp. Rep. 25, 25-28 (1993) and cases cited therein (for review of rules on judicial recusal). On recommittal, the judge should consult his own emotions and conscience as to whether he has become hostile to or biased against the self-insurer. He is required to keep an open mind in the case until all the evidence has been submitted. If he doubts his ability to render a fair and impartial decision on recommittal, he should recuse.
In conclusion, because the insurer must be afforded an opportunity to be heard on the issues raised under G.L.c. 152, § 11A(2), we reverse the decision and recommit the case for further proceedings consistent with this opinion.
So ordered.
____________________ Suzanne E.K. Smith Administrative Law Judge
____________________ William A. McCarthy Administrative Law Judge
____________________ Susan Maze-Rothstein Administrative Law Judge
Filed: May 7, 1998