Opinion
BOARD No. 014352-89
Filed: December 29, 1995
REVIEWING BOARD DECISION
(Judges Kirby, Maze-Rothstein and Smith)
APPEARANCES
George N. Keches, Esq., for the employee
Paul W. Goodrich, Esq., for the insurer
Both parties appeal from the decision of an administrative judge on the insurer's request for reduction, suspension or discontinuance of compensation. The decision reduced the employee's partial compensation benefits from $284 to $217.33 per week. The employee contends that the § 11A impartial medical examiner was an "insurance doctor" and not "impartial" as required under the Act. The record demonstrates the appearance of favoritism or sympathetic inclination towards one party as against the other. Therefore, we hold that the administrative judge erred in denying the employee's motion for additional medical evidence. Because the decision rested on the exclusive medical opinion of an "impartial" physician who did not appear to meet the standard of impartiality required by c. 152, § 11A, we vacate it.
FACTS
Martin Tallent received a personal injury to his back on April 3, 1989 arising out of and in the course of his employment for the M.B.T.A. The M.B.T.A. accepted his claim and commenced payments of § 34 total incapacity benefits based on an average weekly wage of $676. (Dec. 1; Employee's Brief, 2.) The self-insurer filed the pending request for discontinuance based on an offer of suitable work. At conference pursuant to c. 152, § 10A, the parties agreed that, upon further appeal the case would require an impartial examination by an orthopedic specialist pursuant to c. 152, § 11A. The parties presented copies of medical records to be sent to the impartial examiner. After conference, the administrative judge found that the employee was able to earn $250 per week and ordered that compensation be reduced to $284 per week as of September 2, 1992, the filing date of the conference order. (Dec. 1.) The insurer appealed the conference order and at hearing raised issues of the extent of incapacity and its causal relationship to the work injury.
Pursuant to c. 152, § 11A, the impartial unit of the Department of Industrial Accidents scheduled Tallent for an examination by Dr. James Gibbons, an orthopedic surgeon. Dr. Gibbons reviewed the medical records submitted by the parties at conference, took a history and did an examination. Dr. Gibbons then concluded 1) that the employee had sustained a lower back sprain on April 4, 1989 from which he had recovered and 2) that his current complaints of low back pain radiating down the posterolateral aspect of his right leg and calf were not related to the work injury but were due to preexisting degenerative arthritis and degenerative disc disease. (Dep. 3-4.) He wrote: "There [are] no signs that he has, either on the studies that had been performed or on the physical examination performed by us today, that he has [an] active disc disease causing his symptoms." (Report at 3-4.) In Dr. Gibbons' opinion, Tallent was able to return to work at a mechanic so long as he was not required to lift more than 50 pounds; he had reached a medical end result and required no further medical treatment. (Id. at 4.)
Upon receipt of the impartial report, the employee moved to preclude its admission and requested that a new impartial examiner be appointed. As grounds therefore, he claimed that Dr. Gibbons had performed numerous examinations on behalf of the insurance industry as a whole in both past and current compensation matters and that he was "a notorious insurer examiner." (Motion dated Jan. 13 1993; Tr. 4-8.) The self-insurer responded that the judge lacked authority to determine Dr. Gibbon's impartiality as the doctor had been appointed by the senior judge to the roster of impartial physicians pursuant to c. 152, § 11A(1). (Tr. 8-10; Self-Insurer's Motion in Opposition.) At hearing on January 13, 1993 (Tr. 11.), and again by letter dated March 31, 1993 the judge denied the employee's motion apparently on the basis that he lacked authority to grant it. The parties then proceeded to depose Dr. Gibbons.
The judge commented: "I understand your misgivings about Dr. Gibbons. I agree with counsel's argument . . . I don't have the congressional authority to preclude Dr. Gibbons as an impartial examiner in this case or any other." (Tr. 11.)
Dr. Gibbons testified that he was an orthopedic surgeon with operating privileges at two hospitals. (Dec. 5.) He described his practice as daily seeing 15 to 20 private patients and 1 to 2 patients for independent medical examinations. (Id.) On one day a week, he sees an average of 10 patients for Mass. Medical Services. (Id.) Roughly 50% of his gross income is derived from independent medical examination work for insurers. (Dep. 6-7.) He does almost exclusively defense evaluations. (Dep. 7.) He testified:
I have an overhead of $250,000 a year; and if I do not cover it with something other than my practice, I can't stay in practice. The reason I do the IMEs is to supplement my income and stay in practice . . . The vast majority of the income I get from the independent medical exams is generated from the private practice. In other words, people like the way I see the patients and they send me patients to evaluate. (Dep. 10.)
The law firm representing the M.B.T.A. in this case had previously sent Dr. Gibbons patients to evaluate. (Dep. 12-13.)
At deposition, Dr. Gibbons reiterated the diagnosis of Tallent given in his report: 1) degenerative disc disease at multiple levels, 2) associated with degenerative arthritis of the lumbosacral spine, 3) and a back strain on April 4, 1989 by history from which Tallent was recovered. (Dep. 16.) The doctor agreed with another physician that Tallent had a herniated disc at L4-L2, but disagreed that Tallent had radiculopathy (Dep. 19-20.) The doctor clarified that Tallent had degenerative disc disease in his lumbosacral spine and that one of the degenerative discs is a ruptured L4. (Dep. 22.) He also agreed that Tallent has degenerative disc disease with a herniated disc at L4-L5. (Dep. 22-23.) Although Tallent complained of radiculopathy, Dr. Gibbons did not believe it because the physical examination contradicted that history. (Dep. 26.)
Dr. Gibbons did not believe that the employee's herniated disc was caused by his work injury. When asked if Tallent's bilateral nerve involvement was in any way caused, aggravated or precipitated by the work incident on April 4, 1989, the doctor responded:
It's impossible for me to answer that question accurately or honestly. Nobody in the world can answer that question for you. And in retrospect, I can't answer honestly as to whether that degeneration at L4 was made worse by the injury that he suffered on 4-4-89. The only point I can make is that whether it was caused at that time or not, when I saw him he was not disabled. . . . Do you think everybody who has a ruptured disc is forever disabled with it? The vast majority of people with ruptured discs, first of all never know it happened; and secondly, I see hundreds of patients in a year's time with ruptured discs and they almost exclusively all get better." (Dep. 30-31.)
Dr. Gibbons was sure that the employee's present complaints were unrelated to his work injury even though they were the same as he had experienced since the work injury. (Dep. 32-33.) Dr. Gibbons based his opinion of no causal connection on the premise that "[n]obody has pain that long, nobody." (Dep. 33.) When asked "if the complaints are the same and the condition in terms of the diagnosis has not changed, why is it so illogical, based upon reasonable medical certainty, that those complaints are still not being caused by the same condition if the condition has not changed?" Dr. Gibbons answered: "Because it doesn't happen that way in practice. I deal with hundreds of patients similar to this. Patients, after a period of time, get better or they have surgery." (Dep. 34.) The doctor concluded that the employee's physical examination "irrefutably showed that he was either exaggerating or manufacturing symptoms." (Dep. 38-39.)
Based upon his examination of Tallent, Dr. Gibbons was "quite convinced that he wasn't symptomatic." (Dep. 43.) His opinion was based partly on inconsistency in the straight leg raising test and partly "due to the fact I've had, like all doctors have in orthopedics, vast experience with this type of problem." (Dep. 44.) He repeated that the inconsistent straight leg raising was "irrefutable evidence", saying "it's just an observable fact that he had to be either exaggerating it or manufacturing his complaints." (Dep. 44.) Yet, when confronted about this testimony, the doctor retrenched, saying: "I'm not accusing him of being a malingerer." (Dep. 46-47.) "I believed he believed he had it, but I didn't find it on exam. He didn't have it. If he did he would have had a positive physical examination." (Dep. 47.) He then further waffled: "Well, he couldn't have it because I observed that he didn't because the tests indicated he didn't. Why it happened, I can't make that judgment. . . . It's not organic pain." (Dep. 49.)
After Dr. Gibbon's deposition, the employee renewed his motion for a new impartial examination on grounds of bias and for additional medical evidence on grounds of inadequacy. (Motion dated March 22, 1993; see Tr. 12 and judge's letter dated April 23, 1993.) The judge denied the motion without findings on the bias issue. (Dec. 2.) See note 1 supra.
The judge concluded that the employee's condition had improved but that he continued to suffer from degenerative disc disease. With respect to the causal relationship between the disabling condition and the work injury, the judge found: ". . . his industrial accident of April 19, 1989 cannot be ruled out as a precipatant [precipitant] or aggravating factor of his current back condition." (Dec. 10.) "The weight of the evidence of record indicates that the employee does have residuals of his April 19, 1989 industrial accident . . ." (Id.) The judge concluded that Tallent had the ability to work parttime in a light duty job and found an earning capacity of $350 per week. He ordered a corresponding reduction in weekly benefits. (Dec. 10-11.)
ISSUES:
The employee and insurer present a number of issues. Because we conclude that the judge erred in denying the motion for inadequacy on the grounds of the appearance of partiality or bias, we do not address the other issues.
The employee presents the following issues:
1. Whether c. 152, § 11A is unconstitutional on its face.
2. Whether the impartial physician met the standard of impartiality intended by § 11A.
3. Whether the impartial report is inadequate or the issues medically complex.
4. Whether the administrative judge's finding of partial incapacity constituted an improper failure to assign prima facie status to the impartial report.
5. Whether the administrative judge weighed the appropriate factors in reaching his finding of partial disability. The insurer presents the following issues:
1. Whether the administrative judge gave the impartial report prima facie weight as required by c. 152, § 11A(2).
2. Whether the employee satisfied his burden of proof.
3. Whether the administrative judge's denial of the employee's motion to exclude the report of the impartial physician and submit additional medical evidence was an error of law.
LEGAL ANALYSIS
According to the House Ways and Means Committee, Report on An Act Relative To Fair and Effective Compensation of Injured Workers, at 5 (Dec. 1991), medical evidence in addition to that of the single impartial physician would be allowed only where the judge finds that it is truly needed. "The use of a single, impartial physician should make hearings faster, more reliable, and less likely to occur at all." Id.
While the administrative judge maintains authority over the case and has the final fact-finding power, the impartial report constitutes prima facie evidence which must be accepted as fact by the judge unless overcome by other evidence. G.L.c. 152, § 11, 11A and 11B. Unless the judge finds that the impartial report is inadequate or the medical issues complex, there is no other medical evidence in the case.
In order to be accorded prima facie weight, the impartial report must be "truly impartial." Martin v. Red Star Express Lines, 9 Mass. Workers' Comp. Rep. ___, slip op. at 1 (Nov. 21, 1995). At a minimum, the impartial physician must meet the eligibility criteria for impartial physicians established by the Department of Industrial Accidents. The question before us is whether there are other bases for ruling that an impartial report is inadequate on grounds of partiality or bias. We hold that there are.
An administrative judge has inherent authority to ensure the impartiality of the dispute resolution process. Such authority stems from art. 29 of the Massachusetts Declaration of Rights: "It is the right of every citizen to be tried by judges as free, impartial and independent as the lot of humanity will admit . . ." By this provision, workers' compensation litigants are guaranteed a fair hearing.
We hold that judges must ensure the impartiality of physicians acting pursuant to G.L.c. 152, § 11A. An impartial physician acting pursuant to G.L.c. 152, § 11A must avoid even the appearance of partiality or interest.Martin v. Red Star Express Lines, 9 Mass. Workers' Comp. Rep. ___ (Nov. 21, 1995) See S.J.C. Rule 3:25, Canons 1 et seq, 3, subd. A(4) (judges should exercise care not only that no semblance of partiality be displayed but that no opportunity be offered to any party to assert that it was). Where an administrative judge finds that the appearance of impartiality has been compromised, then he must find that the report of the impartial physician is inadequate and permit the submission of additional medical evidence.Id., slip op. at 4. For examples of cases where impartiality has been found wanting, the judge may look for guidance to the Canon of Judicial Ethics, Canon 3(C), Disqualification, and to cases decided under art. 29 of the Massachusetts Declaration of Rights.
Every contention of bias or partiality does not have to be honored by an administrative judge. The administrative judge has a duty to resist challenges to the impartial physician's report which are tenuous, baseless, or frivolous. See Police Commr. of Boston v. Municipal Court of the W. Roxbury Dist., 368 Mass. at 508 (dealing with the bias of a hearing officer).
In general, the question of inadequacy resulting from bias is left to the administrative judge's discretion. Here, we reverse and rule on the issue of bias, rather than remand, because the record will only support one conclusion: that the § 11A medical examiner by his testimony appeared to lack impartiality. See Medeiros v. San Toro Mfg., 7 Mass. Workers' Comp. Rep. 66, 68 (1993). CompareMattison's Case, 305 Mass. 91, 25 N.E.2d 157 (1940) (under a prior impartial physician statutory scheme, an impartial physician was not disqualified because he testified numerous times for insurers; impartiality cannot be determined by a numerical count of the number of times a physician testified for insurers as compared to employees).
CONCLUSION
We hold that under the unique combination of facts of this case, the administrative judge erred as a matter of law in failing to grant the motion for inadequacy based on the appearance of partiality. We therefore, vacate the decision and remand for admission of additional medical evidence. The judge may take additional lay testimony as justice requires. In light of the complexity of the dispute and the effort expended by the employee's attorney, pursuant to G.L.c. 152, § 13A(6), we order the insurer to pay the employee's counsel fees in the amount of $2,000.
So ordered.
________________________ Suzanne E.K. Smith Administrative Law Judge
________________________ Edward P. Kirby Administrative Law Judge
________________________ Susan Maze-Rothstein Administrative Law Judge
SKS
Filed: December 29, 1995