DeMOURA v. MONTAUP ELECTRIC, No. 00939979 (Dec. 16, 1998)

Commonwealth of Massachusetts Department of Industrial Accidents
Board No. 00939979
Filed: December 16, 1998

REVIEWING BOARD DECISION (Judges Maze-Rothstein, Carroll and Levine) APPEARANCES Bernard J. Mulholland, Esq., for the employee John J. Canniff, Esq., for the insurer
MAZE-ROTHSTEIN, J.

Two separate hearing decisions are on appeal by the employee to the reviewing board. Denial of procedural due process and failure to ground the § 34 benefits discontinuance date in the evidentiary record are the bases for the appeal of the first decision. The second decision draws argument on insufficient findings, an absence of supported reasoning, the unexplained rejection of an uncontroverted psychiatric medical opinion and prejudice. The insurer does not disagree with any contention on appeal. We reverse both decisions and recommit the case.

On March 5, 1979, Mr. DeMoura, an electrician then 32 years old, slipped on sand and fell from a curbstone injuring his left ankle. He made several unsuccessful attempts to return to work following the incident. Ultimately, he was discharged by his employer in January, 1980. (Dec. dated January 29, 1982, [hereinafter referred to as Dec. I.]) The insurer accepted liability for the ankle injury and voluntarily paid § 34 benefits. Eventually, the insurer sought to discontinue benefits, which was denied after a conference. On July 15, 1980, a de novo hearing was held. (Dec. I, 1.) That hearing was apparently cut short when, after only a few minutes, the single member halted the proceedings and ordered the employee to be examined by a § 9 impartial physician.[1]
(Tr. I, 7.)

In his hearing decision filed on January 29, 1982, the single member adopted the impartial physician’s opinion that the employee was no longer totally incapacitated and ordered a reduction to weekly partial incapacity benefits pursuant to § 35. (Dec. I, 4-5.) The employee timely appealed to the reviewing board and, to date, has received no decision. (Dec. dated June 26, 1987, 3 [hereinafter referred to as Dec. II.])

Subsequent to the 1979 ankle injury, the employee began to experience back pain and emotional distress. (Dec. II, 3, 8.) and he filed two new claims. On December 12, 1983, he filed a claim for § 30 medical benefits, a return to § 34 weekly total incapacity benefits, or alternatively § 34A permanent and total incapacity benefits. (Dec. II, 3-4.) After a § 10A conference, the insurer was ordered to pay all medical bills for the back and ankle treatment. (Dec. II, 4-5.) The insurer appealed. No hearing was ever held. A separate conference on the § 34A claim was held on June 25, 1984 from which a denial issued (the employee’s temporary benefits monetary cap was to exhaust on June 26, 1984). The employee appealed. When no hearing was scheduled, the employee filed yet another § 34A claim on March 13, 1985. Thereafter, a hearing was finally scheduled on the appeal of the earlier § 34A conference order. That hearing was held on April 22, 1987 and May 15, 1987. (Dec. II, 1.)

The employee attempted to depose his treating orthopedist, but the doctor cancelled three times and the judge refused to allow any further continuances. Ultimately, the employee submitted a brief narrative report from the doctor. A hearing decision issued on June 27, 1987 found the employee partially incapacitated for work. (Dec. II, 13-14.) Both parties appealed.

The employee requested the transcript and the transcript of the second day of the 1987 hearing was finally produced; however, only a partial transcript of the first day of hearing was available. In late 1997, the parties finally completed reconstruction of the transcript of the first day of hearing.

The employee argues that the decision from the first hearing, (Dec. I), should be recommitted for two reasons: 1) the employee’s due process rights were violated because the employee had no meaningful opportunity to testify; there is no indication that the medical records were sent to the impartial physician; and the record is silent as to the parties’ opportunity to depose the impartial physician; and 2) the date chosen for termination of § 34 benefits (the date of the hearing decision) was not grounded in the evidence.

As stated above, the insurer has provided no rebuttal to these arguments. Modification of the employee’s benefits as of the filling date of the first decision is clear error. Without documented reasons grounded in the evidentiary record, the decision date holds no relevance vis-a-vis the employee’s incapacity status. Leveille v. A.T. T.Technologies, Inc., 4 Mass. Workers’ Comp. Rep. 177,178 (1990); Carter v. Shaughnessy Kaplan Rehab.Hosp., 9 Mass. Workers’ Comp. Rep. 437, 447-448 (1995). Moreover, the termination of the hearing during the examination of the employee by the insurer’s attorney, before the employee’s attorney had asked a single question, is a clear due process violation. In this forum parties are entitled to certain aspects of fundamental constitutional due process including the opportunity to “present evidence, examine their own witnesses, to cross-examine witnesses of other parties, to know what the evidence is presented against them, and to be afforded an opportunity to rebut such evidence, and to argue in person or through counsel on the issues of fact and law involved in the hearing.” Haley’s Case, 356 Mass. 678, 682 (1970). SeeMcKenna v. U-Mass. Boston Harbor Campus, 9 Mass. Workers’ Comp. Rep. 183, 186 (1995). Although the seven page transcript does not reflect any objections by either party to the precipitous end of the first hearing, fundamental due process dictates that the employee be allowed to testify on his own behalf prior to the issuance of a decision governing his right to benefits. Thus, for both reasons — the arbitrary modification date and the violations of due process — we reverse the first hearing decision (Dec. I) and recommit the case for further proceedings.

The employee cites three reasons for recommitting the second hearing decision: 1) insufficient findings for the reviewing board to determine whether the administrative judge had applied correct legal standards; 2) ignoring or rejecting without explanation the uncontroverted psychiatric medical opinion permanently and totally disabling the employee due to emotional problems causally related to the industrial injury; and 3) prejudice due to disallowance of further continuances preventing the employee from securing his orthopedist’s deposition given that the doctor’s three cancellations were beyond the employee’s control.

The first two issues can be addressed jointly in that the failure to both (a) document the requisite vocational analysis and (b) to set forth any reasons for departure from the uncontroverted opinion of the sole psychiatric medical expert, while simultaneously crediting that opinion, hinder the ability of the reviewing board to perform its appellate function.Ballard’s Case, 13 Mass. App. Ct. 1068, 1069 (1982);Praetz v. Factory Mutual Eng’g Research, 7 Mass. Workers’ Comp. Rep. 45, 47 (1993). Additionally, the employee’s third argument, regarding the judge’s refusal to extend the deadline for the employee to depose his orthopedist, also has merit. See Stacey v. North ShoreChildren’s Hosp., 8 Mass. Workers’ Comp. Rep. 365, 369-370 (1994); Nakkashian v. Bemis Associates, 3 Mass. Workers’ Comp. Rep. 189, 191 (1988) (single member erred in holding parties to a deposition deadline which the employee, for reasons beyond his control, could not meet).

Accordingly, we reverse both decisions and recommit the case for a hearing de novo. As neither judge currently serves with the Department, we forward the case to the senior judge for assignment to a new administrative judge. o

So ordered.

_____________________ Susan Maze-Rothstein Administrative Law Judge
_____________________ Martine A. Carroll Administrative Law Judge
______________________ Frederick E. Levine Administrative Law Judge