Opinion
BOARD No. 06040589
Filed: November 21, 1995
REVIEWING BOARD DECISION
(Judges Kirby, Smith and Maze-Rothstein)
APPEARANCES:
Deborah G. Kohl, Esquire, for the employee.
Annette M. Bell Hardy, Esquire, for the insurer.
The employee appeals from a decision authorizing discontinuance of his § 34 temporary total incapacity compensation and related medical benefits. The decision relied on the opinion of a physician appointed under G.L.c. 152, § 11A. The employee twice moved for the report's exclusion or the allowance of additional medical evidence on the basis of bias and lack of impartiality. His motions were denied without explanation.
The issue before us is whether a § 11A medical report is rendered inadequate, requiring the allowance of additional medical evidence, where the examiner has previously treated the employee. We conclude that impartiality is a strict requirement of § 11A. Given the great weight of the § 11A report in the dispute resolution scheme at the department, the examiner's impartiality must never be open to question. When the physician has treated the examinee, both disputants have good cause to raise the question of partiality.
The employee, 60 years old at the time of the hearing, had completed 11 years of formal education. (Dec. 3.) For thirty five years he worked as a truck driver and dockman, which involved loading and unloading trucks.Id. On January 24, 1989, while removing spikes used to hold down chocks that prevented the truck load from shifting, the employee injured his abdomen and groin. Id. He continued working until November, 1989 at which time he left the employer complaining of continued pain. (Dec. 2-3; Tr. 8, 13.)
The insurer accepted liability and paid § 34 compensation benefits from November 6, 1989 and continuing. After a conference on a complaint for termination or modification, the judge ordered discontinuance of § 34 benefits and the commencement of § 35 partial incapacity compensation. The insurer appealed.
Dr. Barry Lang, an orthopedic surgeon was appointed as the § 11A medical examiner, and evaluated the employee on March 8, 1993. He filed his report on March 9, 1993. At the commencement of the March 29, 1993 evidentiary hearing, the employee moved to exclude Dr. Lang's report and to have another § 11A physician appointed on the grounds of bias, arguing that Dr. Lang had previously treated the employee and members of his family. (Tr. 5-6.) The judge deferred his ruling on the motion. (Tr. 6-7.)
Dr. Lang's deposition was taken on May 4, 1993. When questioned concerning any prior relationship with the employee, Dr. Lang testified that he had no recollection of a patient relationship with the employee. (Lang dep. 35-36; see Tr. 36-37.)
On May 19, 1993, the employee renewed his motion to exclude the § 11A examiner's report, or to submit additional medical evidence on the basis that Dr. Lang's report was inadequate as a matter of law, arguing inherent inconsistencies and the question of bias. The judge denied the motion. He then found that the report was adequate and that there were no complex medical issues in the case. (Dec. 1.)
There is an apparent unresolved inconsistency in Doctor Lang's depositional testimony. At one point, he said the employee may need job modification because of pain, and in other places he testified that the employee had no physical limitations. (Lang Dep. 13, 15-16, 34). Doctor Lang also testified that he did not know the nature of the employee's job duties. (Dep. 12-13). We do not reach this point, deciding the case on other grounds.
In the October 25, 1993 decision, the judge relied on the exclusive medical opinion of Dr. Lang to dismiss the employee's claim terminating all ongoing § 35 compensation. (Dec. 5-6.) Dr. Lang had opined that there was no causal relationship between the employee's alleged injury and his ongoing pre-existing degenerative lumbar changes. (Dec. 4).
The employee appeals from this decision, contending that the judge erred as a matter of law in denying his motions and finding the § 11A report adequate. He makes an argument in two steps. First, he avers that the impartiality and neutrality of the § 11A physician has been called into question due to his prior treatment of the employee. Second, he argues that where the impartiality of the § 11A process has been called into question, the Impartial Medical System is damaged. (Employee's Brief, 5.) Under these circumstances, he contends, the judge should have assigned a new § 11A physician or allowed additional medical testimony. We rule only that if the doctor previously treated the employee the judge should have specifically ruled upon the bias aspect of the motion. Neither the decision nor the record resolves the question of whether the doctor had done so. The failure to resolve this threshold issue itself compels a recommittal.
Section 11A(2) provides that an "impartial" medical examiner is to be appointed when there is a dispute over medical issues. G.L.c. 152, § 11A(2). Where, as here, the judge does not allow the parties to submit additional medical evidence, the § 11A opinion becomes the sole medical evidence in the case, and is statutorily accorded prima facie weight. Id.
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. Where the appearance of impartiality has been compromised based on facts found, the § 11A examiner's opinion is inadequate, and the judge must allow the introduction of additional medical evidence. See Mendez v. The Foxboro Co., 9 Mass. Workers' Comp. Rep. ___ (October 31, 1995). See also Cook v. Farm Servs., Inc., 301 Mass. 564, 566-568 (1938); Anderson's Case, 373 Mass. 813, 817 (1977).
In administering the § 11A system of resolving medical issues, we must heed the principle: ". . . 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". Burns v. Purity Supreme, 2 Mass. Workers' Comp. Rep. 177, 180 (1988), citing In the Matter of Troy 364 Mass. 15, 71 (1973). 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. See In the Matter of Troy, supra at 71. Finally, procedures must "further the accuracy" of a judge's determinations on material issues in dispute or serious due process problems arise. See Aime v. Commonwealth, 414 Mass. 667, 682 (1993).
A naked allegation of bias based on the fact of prior treatment does not establish bias or its appearance. There must be factual circumstances introduced into evidence to support such an allegation before inadequacy can be ruled upon. See Karamanos v. J.K. Luncheonette, 5 Mass. Workers' Comp. Rep. 405, 408 (1991) (discussing importance of appearance of impartiality where factual circumstances reasonably support questioning of the same).
There are copies of cancelled checks and a record of office visits made by the employee's wife in the board file. The copies are marked "EE," presumably for "employee". These items though mentioned in the employee-appellant's brief are not mentioned as exhibits in the decision, transcript, or in the Lang deposition. We have stated many times that all exhibits must be identified, marked, numbered, and dated so that this reviewing board can afford proper appellate review based on evidence clearly in the record. The status of items which may be mistaken for exhibits in the record on appeal should be clearly characterized. Castillo v. Arthur Blank Co., 4 Mass. Workers' Comp. Rep. 110 (1990). Though probative of the treatment issue, the uncertain status of the subject items prevents us from knowing whether or not the judge considered them or whether on the facts of this case, any partiality could have been borne out. Given the primary importance of impartiality to the § 11A system, such findings must be clear.
Without our deciding the issue of the appearance of bias because the record is unclear, its specter hovers over the case. That specter is enough to cast doubt on the § 11A report's validity, which could render the report inadequate. The judge did not specifically address the bias issue raised. Accordingly, remand would be appropriate for findings consistent with this opinion were the judge still sitting. G.L.c. 152, § 11C. Because he is no longer a member of the Industrial Accident Board, we refer this case to the Senior Judge for reassignment for a hearing de novo.
_________________________ Edward P. Kirby Administrative Law Judge
_________________________ Suzanne E.K. Smith Administrative Law Judge
__________________________ Susan Maze-Rothstein Administrative Law Judge
Filed: November 21, 1995