FLAHERTY v. BROWNING-FERRIS IND., Inc., No. 040376-90 (Oct. 31, 1995)

BOARD No. 040376-90Commonwealth of Massachusetts Department of Industrial Accidents
Filed: October 31, 1995

REVIEWING BOARD DECISION

(Judges Smith, Maze-Rothstein and Kirby)

APPEARANCES

Michael J. O’Donnell, Esq., for the employee.

Michael A. Fager, Esq., for the self-insurer.

SMITH, J.

The self-insurer appeals from the decision of an administrative judge awarding workers’ compensation benefits to the employee, on the grounds that it was based on an inadmissible medical report. We agree and, therefore, vacate the decision.

The employee was a driver/shaker for the self-insurer, a trash collection business. A shaker is the person who walks behind the rubbish truck emptying trash cans into the hopper of the truck. The employee was working in this capacity on July 6, 1990 when he experienced pain in both arms, chest and jaw. (Dec. 3-4.) He was hospitalized on July 9, 1990, underwent cardiac catherization for three vessels, and was discharged from the hospital on July 28, 1990. (Dec. 5.)

The administrative judge found that the employee sustained a compensable injury to his heart on July 6, 1990. (Dec. 7.) She awarded § 34 temporary total incapacity weekly benefits at the rate of $398.67 per week based on an average weekly wage of $598.00 from July 9, 1990 to August 6, 1990; § 35 partial incapacity benefits at the rate of $298.67 from August 7, 1990 to April 20, 1991 with an assigned earning capacity of $150.00; and § 35 benefits at the rate of $198.67 with an earning capacity of $300.00 from April 21, 1991 and continuing. (Dec. 8.)

The judge adopted the opinion of Dr. Paul Ossen that the employee sustained an acute heart problem on July 6, 1990 which was causally related to work exertions. (Dec. 7.) Dr. Ossen had examined the employee at the request of the self-insurer. (Dec. 6.) At the hearing on November 12, 1991, the employee’s attorney indicated that he would like to submit Dr. Ossen’s report but did not formally offer it as an exhibit. Opposing counsel responded: “There are two ways of getting Dr. Ossen’s report in. He can get the curriculum vitae and submit it or he can depose Dr. Ossen either of these two ways. We will not agree to any other way than that.” The judge ruled: “I’m going to leave the record open so the Employee to endeavor [sic] to get the curriculum vitae of Dr. Paul Ossen. He will be examined at the request of the Insurer.” (Tr. I, 7.)

By letter dated November 14, 1991, employee’s counsel offered as an exhibit the report of Dr. Ossen together with his curriculum vitae. The self-insurer responded with a motion to require the employee to depose the physician on the grounds that board rule 1.11(6) prohibited its admission over objection of the party who engaged the expert.

The self-insurer declined to depose Dr. Ossen or offer his report. At the next hearing, on January 8, 1992, the judge, citing her authority under G.L.c. 152, § 1, admitted Dr. Ossen’s report into evidence over the self-insurer’s objection. (Tr. II, 3-6; Dec. 2.)

Browning-Ferris, the self-insurer, argues that a physician’s report can be offered into evidence only by the party who engaged the services of that physician. The employee contends that the self-insurer stipulated to the report’s admittance. We reject employee’s contention because it lacks evidentiary support. At the time of the alleged stipulation, the report was not actually offered into evidence by the employee. (Tr. I, 7.) Subsequently, when the employee did offer the report as an exhibit, the self-insurer vigorously objected. (Tr. II, 3-6.)

Section 11 allows an administrative judge to make such inquiries and investigations as he or she deems necessary and to receive any documentary or oral matter not previously obtained to enable him or her to issue a decision with respect to the issues in the case. A judge has broad discretion in the conduct of a hearing and may take charge of the proceeding, “examine witnesses”, and be a “guiding spirit and controlling mind” to ensure that justice is done. Saez v. Raytheon Corp., 7 Mass. Workers’ Comp. 20, 22 (1993) and cases cited. That discretion is not unlimited, however.

The scope of a judge’s authority to admit evidence is governed by 452 Code Mass. Regs. 1.11(5) which provides, in pertinent part: “[u]nless otherwise provided by M.G.L.c. 152 or 452 CMR 1.00, the admissibility of evidence . . . shall be determined under the rules of evidence applied in the courts of the Commonwealth. The decision of the administrative judge shall be based solely on the evidence introduced at the hearing.”

An administrative judge has no power to admit evidence at a hearing in a manner contrary to the department’s rules. The admission of medical reports is “otherwise provided” by Rule 1.11(6).[1] As the self-insurer engaged Dr. Ossen as its examining physician, the employee had no right to offer his report. The judge erred in admitting it.Wodzenski v. Hilltop Steak House, 6 Mass. Workers’ Comp. Rep. 105, 106 (1992). The error is not harmless as the judge specifically adopted Dr. Ossen’s opinion and based her decision on it.

Accordingly, we vacate the administrative judge’s decision as it was based on improperly admitted evidence. Since the administrative judge no longer serves in that capacity, we remand the case to the senior judge for reassignment to a different administrative judge for hearing de novo. We suggest that in the interest of judicial economy and efficiency the case be decided, insofar as practicable and if there is no issue of witness credibility, on the transcript and extensive evidence admitted by the former judge. See Nartowicz’s Case, 334 Mass. 684, 686 (1956).

So ordered.

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

Filed: October 31, 1995