BOARD No. 54887-91Commonwealth of Massachusetts Department of Industrial Accidents
Filed: March 13, 1998
REVIEWING BOARD DECISION
(Judges McCarthy, Maze-Rothstein and Smith)
APPEARANCES
Louis Kerlinsky, Esq.,[1] for the employee
Jennifer Hylemon, Esq., for the insurer
SMITH, J.
The employee appeals for a second time from a decision denying benefits. In the first appeal, we recommitted the case for the judge to determine whether certain medical treatment was reasonable, adequate and causally related to the industrial injury, and thus compensable under G.L.c. 152, § 30. SeeKourouvacilis v. F.L. Roberts Co.,
10 Mass. Workers’ Comp. Rep. 295 (1996). Because the judge has not complied with our recommittal order, we recommit the case once more.
The employee was injured at work on October 10, 1991 when a shelf fell, striking her on the back of the neck. (August 10, 1994 Dec. [“Dec. I”] 4.) The insurer made voluntary payments without prejudice until November 23, 1991. (Dec. I 3, 8.) When weekly benefits stopped, the employee filed a claim for further § 34 weekly benefits, along with medical services under § 30. (Dec. I 1, 3; Form 110 dated December 3, 1991.) After a 10A conference, held on June 25, 1992, the claim was denied and the employee appealed to a § 11 de novo hearing. (Dec. I, 3.) The judge who heard the conference retired and a pretrial conference was held before a new judge on November 22, 1993. The employee then reaffirmed her appeal of the conference denial.
At the § 11 hearing, the employee introduced exhibits indicating medical treatment at the Baystate Medical Center (Ex. 4), by Dr. Lawrence Metz (Ex. 7), and at the Weldon Center for Rehabilitation (Exs. 8, 9), together with the reports of various diagnostic tests (Exs. 6, 12; Tr. 4-9.) The employee testified about her medical treatment. (Tr. 29-44.) The insurer’s medical experts also addressed the issue of the employee’s treatment. (Levine Dep. 24-25, 27-28, 43, 46-48, 52, 72-74, 81-82, 84; Brendler Dep. 25-26, 38-39.) Nonetheless, the judge failed to address the question of the employee’s entitlement to § 30 benefits, simply denying the claim in toto without discussion of the reasonableness and adequacy of the treatment. (Dec. I, 9.) The employee appealed to the reviewing board.
We recommitted the case in a decision filed on March 27, 1996. Kourouvacilis, supra. After pointing out the evidence of medical treatment referred to above, we stated:
In his decision, the administrative judge recited the employee’s complaints but made no findings about whether he in fact believed them. (Dec. 5.) Findings about their veracity were key to an adjudication of the adequacy and reasonableness of her health care treatment for which she sought reimbursement. See G.L.c. 152, § 30.
As the employee claimed entitlement to medical services. the administrative judge was required to render a decision on her entitlement to them and provide a brief statement of the grounds for his decision. G.L.c. 152, § 11B.
Id. at 296 (emphasis supplied, footnote omitted).[2]
We are again confronted with an appeal because the judge failed to comply with our explicit remand instruction. The judge responded to our direction that he address the employee’s claim for medical benefits under § 30 by finding that the employee had not stated specifically the medical benefits claimed to be due. As a result, the judge found that “no determination could be made (and indeed, the issue is not properly before me) to order any specific payment of medical bills.” (August 2, 1996 Dec. [Dec. II], 2.) The judge further found “given the lack of information provided by the employee as to what medical bills are outstanding, no decisions on particular bills can be entered at this time.” (Dec. II, 3.) Again, the judge denied the medical claim and once again the employee appeals to the reviewing board.
We agree with the employee that the judge misconstrued the scope of his authority in this case. The Legislature did not enact G.L.c. 152, § 7G requiring the promulgation of rules for documentation of claims until after this claim was filed. St. 1991, c. 398, § 22A, effective December 23, 1991. The documentation regulation was not promulgated until 1993, two years after this claim had been processed by the Office of Claims Administration. See 452 Code Mass. Regs. 1.07 (2)(c)[3]
(specifying documentation required for a medical services claim). The application of this rule is governed by 452 Code Mass. Regs. 1.01, entitled “Scope and Authority,” which provides, in pertinent part:
452 CMR 1.00 is promulgated pursuant to M.G.L.c. 152, § 5, as most recently amended, for the purpose of carrying out the provisions of M.G.L.c. 152. Except where it would violate justice or equity to do so, the rules as herein published or subsequently amended shall apply to all claims and complaints before the Department of Industrial Accidents. . . .
(Emphasis supplied.)
The documentation regulation, 452 CMR 1.07 (2)(c), is addressed to the filing stage of proceedings. See n. 3, supra.
The employee’s medical claim had been accepted for filing by the Office of Claims Administration, processed by the conciliation unit of the Division of Dispute Resolution, referred to an administrative judge for a § 10A conference and appealed from conference to a § 11 de novo hearing prior to the regulation’s promulgation.
The stage of proceedings governed by the regulation was long completed. It would violate justice and equity to apply the regulation to dismiss the medical claim. See City Council ofWaltham v. Vinciullo, 364 Mass. 624, 627-629 (1974) (a legislative enactment, whether it is deemed procedural or substantive, cannot be applied retroactively to stages of litigation which had been completed prior to the enactment’s effective date). If the judge believed that he could not entertain the claim because the employee had not complied with this regulation, he erred.
Nor does the judge’s reason that he lacked adequate information to adjudicate the claim withstand appellate scrutiny. In our original decision, to assist the judge in complying with our remand order to adjudicate the medical treatment issue, we directed the judge to specific portions of the record containing evidence about the treatment for which payment was sought. While the employee might have made out her medical claim more definitely than she did, the record contained adequate information to decide whether the treatment the employee had received was reasonable and adequate. See G.L.c. 152, § 30.
The employee’s omission to enter specific bills for these various treatment modalities did not relieve the judge of his obligation to comply with the explicit remand order to determine the reasonableness and adequacy of the medical treatment referenced in our decision. Our remand order gave the judge the ability to take further evidence as justice required. If the judge felt so constrained in his ability to address the question of § 30 entitlement by the lack of bills in evidence, he could have requested that they be presented as exhibits[4] under an appropriate evidentiary rule. See G.L.c. 152, § 11 (the judge may require any documentary matter as shall enable him to reach a decision with respect to the issues before him); 452 CMR 1.11 (5) (rules of evidence apply to hearings); and Guzman v. Town andCountry Fine Jewelry, 12 Mass. Workers’ Comp. Rep., slip op. 3-5 (February 27, 1998) (discussing statutory basis for admission of hospital records).
The medical treatment issue was properly before the judge, who must render a decision addressing it. G.L.c. 152, § 11B. Accordingly, we recommit the case for the judge to address the § 30 claim. On recommittal, the judge may take such additional evidence as he finds necessary to perform this judicial function.
So ordered. ______________________________ Suzanne E. K. Smith Administrative Law Judge
______________________________ William A. McCarthy Administrative Law Judge
______________________________ Susan Maze-Rothstein Administrative Law Judge
Filed: March 13, 1998
SKS
(2) Pursuant to the provisions of M.G.L.c. 152, § 7G, the following documentation must be attached to a claim for benefits . . . before it will be processed by the Office of Claims Administration:
. . . .
(c) 1. Claims for payment for adequate and reasonable health care services shall, where applicable, be accompanied by the following:
a. the dates of service;
b. the type of treatment or service and the itemized costs;
c. office notes, hospital records, or a statement from the attending physician or medical vendor that such visit, testing, prescription drug, therapy, or ancillary medical service device or aid was reasonable, necessary, and causally related to the injury for which the employee is eligible for benefits.
(emphasis supplied).