Opinion
BOARD No. 008490-94
Filed: May 28, 1998
REVIEWING BOARD DECISION
(Judges Levine, Wilson and Fischel).
APPEARANCES
John R. Cowie, Jr., Esq., for the employee.
Robert P. diGrazia, Esq., for the insurer.
The employee appeals from a decision in which an administrative judge denied her claim for further weekly compensation benefits based on an accepted work injury. The employee contends that the judge failed to address her claim of bias on the part of the § 11A impartial examiner, and improperly allowed into evidence a hearsay opinion of her treating physician. We reject the employee's contentions and affirm the decision.
The employee injured her back while lifting bags of dog food at work on March 12, 1994, for which condition she underwent a laminectomy on October 2, 1994. (Dec. 5.) The employer offered the employee various light duty jobs on or about January 5, 1995. (Dec. 5-6.) The employee did not respond to the employer's offer, and did not attempt to perform the light duty work offered to her. (Dec. 6.) The insurer, which had been paying benefits on the accepted work injury, discontinued such benefits as of January 12, 1995. (Dec. 2.)
The employee claimed temporary total incapacity benefits from January 12, 1995 and continuing. By conference order filed on November 21, 1995, the insurer was required to pay § 34 benefits commencing on October 19, 1995. The insurer appealed to a full evidentiary hearing. (Dec. 2.)
Pursuant to G.L.c. 152, § 11A(2), the employee underwent an impartial medical examination on February 2, 1996. (Dec. 6.) The impartial examiner opined that the employee suffered from chronic pain following surgery and a failed back syndrome; additionally, it was his opinion that the employee has degenerative joint disease exacerbated by her March 12, 1994 lifting injury at work. (Dec. 6-7.) The doctor causally related the employee's present disability to the industrial injury. The doctor concluded that the employee was partially disabled, and that she should not lift anything over twenty pounds on an occasional basis or ten pounds on a regular basis. (Dec. 7.) The doctor also opined that the employee embellished her symptoms at the examination. At his deposition on April 30, 1996, the doctor stated that there was a natural tendency for workers' compensation claimants (including the employee in the present case) to embellish their symptoms due to financial and psychological motivations, making treatment difficult in some cases. (Impartial Dep. 23-24, 56-57.)
The judge found the impartial examiner's report to be adequate, and adopted his opinions which were set out in the decision. (Dec. 3, 7.) The judge noted that although the employee argued bias on the part of the impartial examiner in her Request for Findings filed May 13, 1996, it was never raised in a motion. In any event, the judge went on to state, "I do not find [the impartial examiner] demonstrates bias merely because he notes that secondary gain in some cases make [sic] patients difficult to treat." (Dec. 3.)
The judge concluded that the employee was capable of earning her pre-injury average weekly wage in view of, inter alia, the restrictions imposed by the impartial physician, and the light duty job offers of the employer which the judge found to be bona fide, available, and suitable. (Dec. 9.) On two occasions in her decision, the judge recited the employee's testimony that her treating physician had never totally disabled her from working. (Dec. 6, 8.) The judge denied and dismissed the employee's claim for § 34 benefits. (Dec. 10.)
The employee first argues that the impartial physician was biased against her specifically and against workers' compensation employees in general. There is no merit to the contention.
The employee correctly cites Martin v. Red Star Express Lines, 9 Mass. Workers' Comp. Rep. 670 (1995), for the standard by which we review allegations of bias against the § 11A physician.
Impartiality is the very cornerstone of the § 11A medical examiner system. If bias, partiality, or the appearance of same is at issue, the judge must address it and make findings and a ruling in that regard.
Id. at 673. The employee's contention to the contrary notwithstanding, this is exactly what the judge did in this case.
The allegation of bias on the part of the impartial physician is a challenge to the adequacy of the doctor's report. See Martin,supra. The only time that the employee alleged bias was in her Request for Findings. The employee did not follow the direction of § 11A(2) that any party seeking a finding of inadequacy of the § 11A report must do so by way of a motion. That motion must be in writing. 452 CMR 1.12(5)(a). Neither the statute nor the regulation designate a specific time that such a motion must be filed. Where information is revealed as a result of the impartial physician's deposition that indicates that the report is inadequate, a motion bringing that to the judge's attention is certainly appropriate. See, e.g., Lebrun v. Century Markets, 9 Mass. Workers' Comp. Rep. 692, 693, 696 (1995) (employee's post-deposition motion for finding of inadequacy should have been allowed, based on doctor's deposition testimony). Otherwise, the deposition would be of limited value, in practical terms. And as a matter of fundamental fairness, the adverse party should be provided the opportunity to be heard on the motion, which opportunity is not afforded when the allegation is made in the Request for Findings.
The allegation consists of one short sentence — "The testimony of [the impartial physician] is strongly suggestive of bias to injured workers with back problems" — followed by references to pages in the physician's deposition.
All that being said, however, we think that the judge did indeed address the employee's allegation of bias as outlined inMartin, supra. The judge found no bias in the impartial physician's general statements concerning secondary gain. (Dec. 3.) It is clear that the impartial physician's medical opinion was derived from his clinical examination of the employee. That examination revealed few objective clinical findings supporting the employee's claimed disability. (Statutory Ex. 1.) On the other hand, the doctor found several objective indications of symptom enhancement. Id. Particularly in light of the doctor's actual examination findings, upon which he testified he based his conclusions, (Impartial Dep. 22, 56), we cannot say that his observations gleaned from years of treating patients with back injuries makes out a claim of bias as a matter of law. Cf. Mattison's Case, 305 Mass. 91, 93 (1940)("it cannot be ruled as a matter of law that a physician is not impartial merely because he has testified in numerous cases in behalf of insurance companies").
Nor is there any merit to the employee's contention that the doctor admitted to being biased merely by saying, in answer to a question regarding the advisability of further surgery, that
usually someone who has this degree of problems for this long they usually do very poorly and my own personal bias and experience is that someone like this is not going to do well. Most surgeons I think would shy away from a patient like this.
(Impartial Dep. 32.) The employee's contention of bias due to the doctor's failure to view the MRI also lacks merit. We do not think that showing that a record was overlooked — assuming that it was actually presented to the doctor at the examination — constitutes bias. In any event, upon viewing the MRI at his deposition, the doctor's disability opinion was unchanged. (Impartial Dep. 60-62.) We also note that neither of these last allegations of bias was presented in any form (even in the Request for Findings) to the judge at hearing. We affirm the decision as to the bias issue.
The impartial physician was not clear that the MRI was available to him. (Impartial Dep. 51-52.)
It is also worth repeating that the doctor found that the employee was partially disabled, and the disability was causally related to the present industrial injury.
The employee also appears to argue (Employee brief, pp. 11-12) that the judge erroneously allowed a hearsay medical opinion into evidence over the employee's objection. (Tr. 38-39.) The judge twice recited, based on the employee's testimony, that her treating physician, Dr. Van Uitert, had not totally disabled the employee from working. (Dec. 6, 8.) The statement of the non-testifying doctor, being offered for the truth of its contents, is hearsay. See Liacos, Massachusetts Evidence, § 8.1 (6th ed. 1994). The error, however, is harmless. The judge found that in December 1994 the employee's then treating doctor, Dr. Wieneke, released the employee to perform light duty work. The judge further found that in January 1995 the employer made a bona fide offer of jobs that were within the employee's treating doctor's restrictions and that equaled or exceeded the employee's average weekly wage. (Dec. 7-8.) Although the employee testified that her pain increased and worsened during 1995, the judge did not credit her testimony because of the employee's delay in seeking medical care. (Dec. 6, 8.) The judge found that the employer in September 1995 repeated its bona fide job offer; and she found that, in light of, inter alia, the moderate restrictions imposed by the impartial physician in February 1996, the employee was capable of earning her pre-injury average weekly wage. (Dec. 8-9.) In the light of those findings, including that Dr. Wieneke in December 1994 and the impartial physician in February 1996 effectively sanctioned the employee's performance of the offered jobs and that the judge did not credit the employee's testimony that in 1995 her pain worsened because she delayed seeking medical treatment, the judge's admission of the hearsay evidence is harmless error. That evidence was recited but not relied upon by the judge; furthermore, it was cumulative to the findings with respect to the other physicians. CompareIndrisano's Case, 307 Mass. 520, 523 (1940). Contrast Collins v. Leaseway Deliveries, Inc., 9 Mass. Workers' Comp. Rep. 211, 212 (1995) (erroneous finding).
We affirm the decision.
So ordered.
_____________________ Frederick E. Levine Administrative Law Judge
_____________________ Sara Holmes Wilson Administrative Law Judge
FEL/kai
The problem with the bias issue here is the § 11A expert's testimony that "anyone" involved in workers' compensation litigation embellishes symptoms in order to enhance their case, and the judge's failure to address what the doctor said. Dr. Aliotta, the § 11A examiner, and sole medical opinion in evidence, diagnosed the employee's condition at his February 2, 1996 exam:
A. She seems to have — basically is in a chronic pain situation. She has had — her initial injury was back in 1994, going on two years. She had surgery and a failed back syndrome and has persistent evidence on neurophysiological testing of chronic radiculopathy. Also had findings on the MRI of some degenerative joint disease and disc, but I believe that there was a strong component in her of enhancement or magnification of symptoms and so there was definitely I think some other component going on, embellishment of her symptoms.
Q. Any idea why that was Doctor?
A. Well I mean I think anyone that's involved in any sort of litigation, workmen's comp I believe there is a certain natural tendency to embellish to, you know, make one's case a little stronger.
(Dep. Aliotta at 23; emphasis added). The judge's sole finding on the bias issue diminishes the scope and significance of the doctor's remarks, without directly addressing what he said:
"I do not find Dr, Aliotta demonstrates bias merely because he notes that secondary gain in some cases make patients difficult to treat."
(Dec. 3; emphasis added.) The doctor was not simply opining thatsome patients with secondary gain in mind are difficult to treat; he was attributing embellishment of symptoms to anyone involved in workers compensation litigation. When a § 11A examiner presumes that workers' compensation litigants are motivated not to get better, the requisite impartiality of the only medical opinion evidence available to the fact finder is brought into question. See Matto v. RCA Serv. Co., 9 Mass. Worker's Comp. Rep. 759, 761-762(1995). The employee contends this bias against "anyone" involved in worker's compensation litigation led the § 11A expert to diminish the employee's complaints, despite his concession they were consistent with positive objective test results subsequent to her October 1994 spinal surgery. (Dep. Aliotta at 7, 20, 29-30, 52-53.) The employee correctly argues that the judge inadequately addressed the allegation of bias, addressing but a portion of the § 11A examiner's testimony.
It is not our role on review to mitigate the judge's plainly inadequate finding on bias by engaging in fact finding to buttress the purported adequacy of the exam and the § 11A's conclusions. Regardless of whether a judge could ignore a § 11A expert's biased remarks based upon her finding support in his examination for her finding of lack of bias, the judge failed to do that here. Where, as here, the opinion of the § 11A examiner is the sole medical evidence, it must be "truly impartial" in order to be accorded prima facie weight.Tallent v. M.B.T.A., 9 Mass. Workers' Comp. Rep. 794, 799 (1995). In Martin v. Red Star Express Lines, 9 Mass. Workers' Comp. Rep. 670, 673 (1995) we held:
Impartiality is the very cornerstone of the § 11A medical examiner system. If bias, partiality, or the appearance of same is at issue, the judge must address it and make findings and a ruling in that regard. See G.L.c. 152, § 11B. . . . In administering the § 11A system of resolving medical issues, `. . . it is of prime importance, in the disposition of cases before us, not only that justice be done but that it appear to be done." . . . . All aspects of the adjudicative process should maintain not only impartiality, but also the appearance of impartiality. To the extent that the opposite is conveyed, the system is undermined. The integrity of a case's disposition is as essential to public confidence as is the disposition itself . . . .Finally, procedures must `further the accuracy' of a judge's determinations on material issues in dispute or serious due process problems arise.
Martin v. Red Star Express, supra, at 673. Because the specter of bias cast doubt on the § 11A report's validity, which could render the report inadequate, remand was required so the judge could "specifically address the bias issue raised." Id. at 674. That must be done here, where specific assertions of bias that go to the heart of the integrity of the § 11A system were not addressed. I would recommit for further findings on the unresponded to aspects of the bias issue raised.
_____________________ Carolynn N. Fischel Administrative Law Judge
FILED: May 28, 1998