Richard Dupras, Employee v. Water Divisions of Millipore, Employer, Simco Insurance Company, Insurer.

BOARD No. 061615-91Commonwealth of Massachusetts Department of Industrial Accidents
Filed: January 5, 1996

REVIEWING BOARD DECISION

(Judges Smith, Maze-Rothstein and Kirby)

APPEARANCES

James N. Ellis, Jr., Esq., for the employee.

Charles Dixon, Esq., for the insurer.

Smith, J.

The employee appeals from the decision of an administrative judge reducing his compensation. He argues that the judge was required to permit additional medical evidence because one of his medical conditions was outside the specialty of the impartial medical examiner appointed pursuant to G.L.c. 152, § 11C. We find the judge’s decision not to permit additional medical evidence was neither arbitrary, capricious or contrary to law and, therefore, affirm.

Dupras suffered an injury to his low back arising out of and in the course of his work for Millipore on November 7, 1991. He remained out of work until March 19, 1992 when he returned to Millipore on light duty. (Dec. 3.) He stopped work again in December, 1992 because of his back condition. Id. Dupras unsuccessfully attempted return to Millipore once more in May of 1993. Id.

When the return to work attempt failed, the self-insurer resumed compensation payments pursuant to G.L.c. 152, § 8(2)(c) and filed the pending request for reduction or discontinuance alleging that Dupras had recovered sufficiently to return to work.

At conference on the discontinuance complaint, the parties identified medical records to be sent to the impartial medical examiner and requested an orthopedic specialist. After conference, the administrative judge ordered a benefit reduction from § 34 total compensation to § 35 partial compensation based on an average weekly wage of $391.60 and an earning capacity of $100.00. The self-insurer appealed the order and requested an evidentiary hearing.

Pursuant to G.L.c. 152, § 11A(2), the impartial unit of the Department of Industrial Accidents assigned Dr. John Doherty, Jr., an orthopedic surgeon, to examine Dupras. (Dec. 5.) Prior to the impartial examination, the parties agreed to submit additional medical records to the impartial examiner. (Tr. 1 at 6.) At hearing on November 17, 1993, Dupras testified that he takes Ativan for stress, prescribed by Dr. Barreira. (Tr. 1 at 28.) He testified that he began treating with Dr. Barreira in May 1993 because he was having anxiety attacks, panic attacks; he was getting very depressed because he was unable to work. (Tr. 1 at 39.)

The impartial medical examiner examined Dupras on November 30, 1993 and reported his findings. He diagnosed degenerative disc disease, symptomatic, and acute low back strain, abating. (Dec. 7; December 1, 1993 Doherty Report, at 3.) He opined that there was a causal relationship between the onset of disability and the work place injury and that there was a remaining slight relationship between that onset and Dupras’s symptomatology. (Dec. 7; Doherty Report, at 3.) Dr. Doherty further opined that Dupras could return to work with restrictions, including no lifting over 20 pounds. As of the date of his report, December 1, 1993, the § 11A examiner opined that Dupras could return to work for 4 to 6 hours a day, and after about a month could work for a full day with lifting and other restriction. (Dec. 7; Doherty Report, at 4.)

Pursuant to G.L.c. 152, § 11A(2), the report of the impartial medical examiner was admitted into evidence. Neither party chose to depose the doctor. At hearing on February 10, 1994, the employee sought permission to introduce additional medical evidence, both orthopedic and psychological. He argued that the existence of a psychological condition made the issues medically complex. The insurer responded that the employee was not mentally ill but merely had a “functional overlay”, a condition well known to orthopedists. (Tr. 2 at 2-3.) The judge denied the employee’s motion to submit additional medical evidence, finding the § 11A examining physician’s report was not inadequate nor the medical issues complex. (Dec. 2.)

Relying on the opinion of the § 11A physician, the judge found that as of November 30, 1993, the date of the § 11A examination, the residuals of the November 7, 1991 injury caused only a slight impairment of the employee’s ability to work and that he could work in a wide range of sedentary or light jobs at an increased earning capacity. (Dec. 9.) He further found that after December 31, 1993, the employee had the ability to increase that earning capacity by working full time in a wide range of sedentary or light duty positions. (Dec. 9.)

The judge found that Dupras was anxious and depressed because of his painful back problems and his inability to work. (Dec. 4.) The judge properly recognized that psychological conditions arising as a consequence of a work-related physical injury are compensable and ordered §§ 13 and 30 medical benefits. Thus, payment for reasonable and necessary psychological treatment causally related to the back injury was authorized. He entered orders reflective of those changed conditions.[1]
ISSUES

The employee raises two issues on appeal. First, he argues that the administrative judge’s decision is arbitrary, capricious and contrary to law for failing to allow additional medical evidence as the psychological issues presented were complex and beyond the expertise of the orthopedic § 11A medical examiner. Second, he contends that the decision fails to set forth a sufficient rationale to support the earning capacities ordered. We find no error in the judge’s decision and affirm.

LEGAL DISCUSSION

Section 11A provides that additional medical evidence shall be allowed when the judge finds the medical issues complex or the impartial report inadequate. G.L.c. 152, § 11A. In this case, the judge found neither. The employee argues that his testimony of a psychological problem compels a finding of medical complexity and that the § 11A examiner, an orthopedic surgeon, was not qualified to render an opinion as to the psychological injury. We do not agree.

The administrative judge carefully considered the arguments of both parties and then ruled that the report was adequate and the issues not complex. His ruling was properly grounded in the record evidence and was not arbitrary, capricious or contrary to law. Therefore, it must be affirmed. G.L.c. 152, § 11C.

Section 11A vests in the administrative judge the power to take medical evidence in addition to that provided by the impartial medical examiner when such judge finds that said testimony is required due to the “complexity of the medical issues involved or the inadequacy of the report submitted by the impartial medical examiner.” G.L.c. 152, § 11A(2) This standard represents an attempt to instruct the administrative judge concerning the degree of doubt the legislature thinks he should have in the correctness of the medical conclusions reached by the impartial medical examiner when he permits additional evidence. The legislative intent of this language was to provide an release valve for the otherwise tight control of medical evidence provided by § 11A.

Section 11A(2) provides that “the administrative judgemay . . . authorize the submission of additional medical evidence” . . .). Thus the power vested in the judge is discretionary. Our review is limited to whether the judge’s refusal to exercise that power was arbitrary, capricious or contrary to law. G.L.c. 152, § 11C; see Mendez v. The FoxboroCo., 9 Mass. Workers’ Comp. Rep. ___ (November 3, 1995) (judge’s ruling of inadequacy upheld).

We find no abuse of discretion here. The employee did not exercise his right to depose the impartial physician or otherwise offer evidence which persuaded the judge of inadequacy or complexity. See Benham’s Case, 356 Mass. 196, 198-199 (1969) (unrebutted impartial report may be basis for decision; failure to exercise the right to offer evidence to rebut or control the credibility, impartiality and qualifications of the impartial physician cannot affect duty of board to consider report as evidence).

The fact that the impartial physician was an orthopedic specialist rather than a psychologist or psychiatrist does not render his report inadequate. There is no requirement that the impartial physician be a specialist in the particular departments of medicine in whose fields the employee may place his alleged medical disability at the time of hearing. Mattison’s Case,305 Mass. 91, 93, 25 N.E.2d 157 (1940); Commonwealth v. Mahoney,406 Mass. 843, 852 (1990); Letch v. Daniels, 401 Mass. 65, 68 (1987);Gill v. Northshore Radiological Associates, Inc.,10 Mass. App. Ct. 885, 409 N.E.2d 249 (1980).

We briefly address the employee’s second argument. The employee contends that the judge failed to set forth a sufficient rational to support his earning capacity determinations. We find no merit to this assertion.

The judge considered Dr. Doherty’s opinion based on his November 30, 1993 examination. Dr. Doherty opined that as of that date, the employee could gradually return to work on a part-time basis with restrictions for about a month and thereafter could work full-time with the same restrictions. (Dec. 9-10.) As an incapacity determination is not purely a medical issue, the judge considered the employee’s age, education, work history and other factors to assess the impact of the medical limitations on the employee’s vocational capabilities. Scheffler’s Case,419 Mass. 251, 256 (1994). The judge’s determinations were amply supported by his findings and by the evidence. Furthermore, the judge did not err as a matter of law in his assignment of the varying earning capacities. Mulcahey’s Case, 26 Mass. App. Ct. 1, 3
(1988).

In summary, the administrative judge acted within the scope of his authority; his decision was not arbitrary or capricious or contrary to law. We therefore affirm the decision. G.L.c. 152, § 11C.

So ordered.

___________________________ Administrative Law Judge Suzanne E.K. Smith
____________________________ Administrative Law Judge Edward P. Kirby
____________________________ Administrative Law Judge Susan Maze-Rothstein

Filed: January 5, 1996

[1] The judge authorized the self-insurer to discontinue the ongoing payment of § 35 partial compensation in the amount of $194.40 as of November 30, 1993. He ordered payment of § 35 compensation at the rate of $127.73 per week based on the average weekly wage of $391.60 with an assigned earning capacity of $200.00 from that date until December 31, 1993. After December 31, 1993 and continuing, the judge ordered payment of § 35 compensation in the amount of $61.07 per week with an increased earning capacity of $300.00 plus §§ 13 and 30 medical benefits. See Fitzgibbon’s Case, 374 Mass. 633, 637 (1978);Cennerazzo v. GTE Laboratories, 4 Mass. Workers’ Comp. Rep. 253, 255 (1990).
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