GIANNELLI v. DAKA, INC., No. 02975491 (Aug. 24, 1998)

BOARD No. 02975491Commonwealth of Massachusetts Department of Industrial Accidents
Filed: August 24, 1998

REVIEWING BOARD DECISION

(Judges McCarthy, Wilson and Smith)

APPEARANCES

Ronald W. Stoia, Esq., for the employee.

Richard N. Curtin, Esq., for the insurer at hearing.

Paul M. Moretti, Esq., for the insurer on brief.

McCARTHY, J.

Donna Giannelli, now thirty-two years old, is a high school graduate. Starting in 1984, she did office work for various employers. She was doing office work for DAKA, Inc. when she suffered the injury which is the subject of this appeal. (Dec. 3.)

On June 13, 1991, Ms. Giannelli injured her back lifting a stack of papers at work. An MRI revealed disc herniation at L4-5, which was surgically excised in September 1991. (Dec. 3.) The surgery was followed by physical therapy and drug therapy. The insurer accepted the claim voluntarily, paying weekly temporary total incapacity benefits pursuant to § 34 of the Act.

Thereafter, the insurer filed a complaint to modify or discontinue weekly benefits. Following a § 10A conference, the administrative judge assigned Ms. Giannelli a $100.00 weekly earning capacity with weekly benefits to continue under § 35 of the Act. Both parties appealed,[1] giving rise to a full evidentiary hearing. On January 25, 1994, Dr. Albert Fullerton conducted a § 11A impartial medical examination. The denial of the employee’s motion to have the § 11A report declared inadequate left Dr. Fullerton’s report and deposition as the sole medical evidence before the judge. In Dr. Fullerton’s opinion, Ms. Giannelli was not medically disabled and there was no medical reason to restrict her activities. (Dec. 2,4.)

In his decision the administrative judge discontinued weekly benefits as of January 26, 1994. He specifically discredited Ms. Giannelli’s testimony as to her physical limitations and adopted the opinions of Dr. Fullerton.

Ms. Giannelli raises three issues in her appeal. First she contends that the judge erred by allowing the lay hearing to proceed prior to receipt of the impartial examiner’s report, citing O’Brien v. Blue Cross/Blue Shield, 424 Mass. 16 (1996), as authority. General Laws chapter 152, § 11A(2), provides that “[n]o hearing shall be commenced sooner than one week after such report has been received by the parties.” Here, the impartial medical examination was conducted more than seven weeks after the hearing. Had the timing issue been raised at the hearing, remand might be warranted. See Mendez v. Foxborough Company,
9 Mass. Workers’ Comp. Rep. 641 (1995). However, because the employee never objected to the hearing taking place before the impartial examination the issue is not properly preserved for appeal.Marino v. Brandeis University, 10 Mass. Workers’ Comp. Rep. 448, 448 (1996).[2]

Next the employee argues that the impartial examiner was biased. The hearing judge heard and rejected the same argument claiming bias and partiality. We agree that the argument is baseless.

Finally, Ms. Giannelli argues that the hearing judge erred in not allowing the submission of additional medical evidence because she continued to treat with her personal physician and because she continued to complain of pain.

Section 11A(2) provides, in pertinent part:

[T]he administrative judge may, . . ., authorize the submission of additional medical testimony 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. The fact that the impartial examiner has not treated the employee shall not constitute sufficient reason for finding any report of an impartial medical examiner inadequate.

Ms. Giannelli does not argue that the medical issues were complex nor that the impartial examiner’s report was inadequate. Lacking either of those bases, there is no judicial error.

One other matter in this appeal warrants comment. In its reply brief the insurer presents an extensive argument for reversal of the fee awarded to the employee’s attorney pursuant to § 13A. The insurer did not appeal the decision thereby signifying it was content with the decision of the hearing judge. It therefore has no standing to raise the issue. See Taylor’sCase, 44 Mass. App. Ct. 495 (1998).

For the reasons stated above the decision of the administrative judge is affirmed.

So ordered.

_____________________ William A. McCarthy Administrative Law Judge
_____________________ Sara Holmes Wilson Administrative Law Judge
_____________________ Suzanne E.K. Smith Administrative Law Judge

FILED: August 24, 1998