BOARD No. 02127793Commonwealth of Massachusetts Department of Industrial Accidents
Filed: May 16, 1996
REVIEWING BOARD DECISION
(Judges Maze-Rothstein, Smith and Kirby)
APPEARANCES
Michael Akashian, Esq., for the employee
John Morgan, Esq., for the self-insurer
MAZE-ROTHSTEIN, J.
The employee appeals from a decision awarding her § 34 temporary total incapacity benefits for a closed period. She argues only that the administrative judge erred in proceeding with a hearing when the parties had not received the § 11A medical report at least seven days prior thereto as statutorily required. G.L.c. 152, § 11A.[1] The employee failed to raise this issue before or at the time of the hearing. Because the issue was not preserved for appeal, we affirm the decision.
At age fifty-one the employee worked as a custodian for Brandeis University. Her entire career involved cleaning and custodial work. (Dec. 4.) On May 28, 1993, an effort to lift a pail of water at work caused a pulling sensation in her arm that extended up to the right side of her neck. Shortly thereafter, she began to experience pain in her lower back. (Dec. 6.) The insurer accepted the claim and paid weekly benefits from May 29, 1993 to November 10, 1993. Subsequently, the employee filed a claim for further benefits. A § 10A conference resulted in issuance of a March 3, 1994 denial of payment. The employee appealed to de novo hearing held on April 20, 1994. Nearly a month after the hearing, on May 17, 1994, the employee was examined pursuant to § 11A by John Doherty, M.D. (Dec. 7.) In his May 20, 1994 report, Dr. Doherty related the described industrial accident to the employee’s injury, diagnosed as a sprain. However, he believed that the symptoms complained of at the time of the examination were not caused by the industrial accident. (Dec. 8.) He released the employee to return to her former custodial profession with lifting restrictions. (Dec. 8.)
After deposing Dr. Doherty, the employee moved for a finding that the § 11A medical examination was inadequate or that the medical issues were complex. The motion was denied. A decision issued on June 30, 1995, that awarded benefits for a closed period from May 28, 1993 to May 17, 1994. The judge adopted Dr. Doherty’s opinion that the employee’s present complaints were unrelated to her industrial injury and that she could return to work. (Dec. 11.) The employee timely appealed.
On appeal the employee raises only one issue. She argues that the administrative judge erred in proceeding with a hearing on April 20, 1994 as the § 11A examination had not yet been received by the parties, in contravention of G.L.c. 152, § 11A. Section 11A requires that the hearing be held no less than seven days after receipt of the report of the medical examiner. SeeO’Brien v. Blue Cross/Blue Shield, 9 Mass. Workers’ Comp. Rep. 16 (1995) appeal docketed, No. 07058 (SJC October 30, 1995).
Where the timing issue alleging harmful error has been properly framed and preserved, remand is warranted. See Mendez v.Foxborough Company, 9 Mass. Workers’ Comp. Rep. ___ (November 3, 1995); Howe v. Rocky Meadow Cranberry,
9 Mass. Workers’ Comp. Rep. ___ (December 4, 1995). Here the employee failed to raise the issue of the untimely receipt of the impartial report at the hearing. Thus, the issue was not properly preserved for appeal. Further, the employee makes no mention of any potential harm. We see no need to address the issue further.
Decision affirmed.
_________________________ Susan Maze-Rothstein Administrative Law Judge
_________________________ Edward P. Kirby Administrative Law Judge
_________________________ Suzanne E. K. Smith Administrative Law Judge
Filed: May 16, 1996