Board Number: 062574-91Commonwealth of Massachusetts Department of Industrial Accidents
Filed: January 26, 1995
REVIEWING BOARD:
Judges Fischel, McCarthy, and Wilson.[1]
APPEARANCES:
Joanne D. Walter, Esq., for the employee.
Judy Eldrege, Esq., for the insurer.
McCARTHY, J.
For three years Barbara O’Brien worked for Blue Cross/Blue Shield as a computer data entry person. When she claimed to have suffered an industrial injury in November 1991, the insurer paid weekly incapacity benefits under § 34 from November 21, 1991, to January 10, 1992. These benefits were paid without prejudice to the insurer’s right to later resist this claim. When the insurer discontinued the weekly benefits the employee filed a claim for their resumption and for payment of her medical expenses.
After a conference before an administrative judge the employee received an order directing the insurer to pay weekly incapacity benefits from January 11, 1990 and continuing. The insurer appealed this conference order and the case returned to the same judge for a full evidentiary hearing. At the hearing the insurer called upon the employee to prove that she sustained an industrial injury arising out of and in the course of her employment and also put in issue the employee’s allegation of causally related incapacity as a result of the claimed industrial injury. The employee, a private investigator and a vocational rehabilitation expert testified before the administrative judge at the hearing on January 15, 1993. An impartial medical examination under the provisions of § 11A took place on February 16, 1993. On May 26, 1993, the hearing judge filed a decision authorizing discontinuance of weekly benefits effective as of the filing date of his decision.[2] The case is before us on appeal by the employee. We vacate the administrative judge’s decision and return the file to the senior judge for assignment for hearing de novo before a different administrative judge.[3] For ease of discussion we cluster the issues before us into three groups.
Substantive Issues
On the first hearing date and prior to the taking of any testimony the judge laid out the issues before him for decision thus:
The insurer has raised the issue of liability, that is, denying the industrial injury, disability and extent thereof; and causal relationship. The employee is claiming Section 34 compensation under the Act, from November 21, 1991, to date and continuing as well as claiming Sections 13 and 30 under the Act. (Tr. p. 3).
Oddly enough there is very little testimony on this, the first and most fundamental issue for resolution in this case. On direct examination the employee testified as follows about the claimed industrial injury:
I walked out of the office and probably from here to that door there was a hole in the pavement, I was — had my head to the right, talking to one of the girls and I went right down, my left foot went into the hole and I went right down on my hands. So I had trauma on my hands. (Tr. 8, 9)
Even though this testimony raises questions about the locus of the alleged accident, there is no further questioning of the employee about it on direct or redirect examination. On cross-examination the following exchange occurred:
Q: Now, you claim that you fell on November 27, 1991, is that correct?
A: I don’t know if that day is right, is it?
Q: At that time?
A: Ninety-one, November of ’91.
Q: And at that time you were able to walk around, is that correct?
A: That day?
Q: Yes.
A: Like I said that day I did go home, I called the doctor.
(Tr. p. 58, 59).
Whether an industrial injury occurred at work is also identified as an issue in the judge’s decision (Dec. 2). After noting this critical point of dispute, the judge did no more with it, thereby leaving undecided to the present the crucial question whether the employee in fact sustained an injury arising out of and in the course of employment.
The decision also fails to meet the statutory norm found in § 11B in other respects. The judge directs the insurer to cease payment of weekly incapacity benefits on May 26, 1993, the filing date of his decision. There is nothing in the record to support that date as the day when there was some change in the employee’s capacity to earn. We say once more that the findings of fact must be based on credible evidence of record. The decision suffers from another all too common flaw. It contains wholesale recitals of testimony by the three witnesses and virtually no findings of fact based on that testimony. See Praetz’s Case,
7 Mass. Workers’ Comp. Rep. 45 (1993); Crowell’s Case,
7 Mass. Workers’ Comp. Rep. 3 (1993).
Were these decisional defects the only difficulty with this case, we would recommit to the hearing judge for further findings.[4] However, the procedural problems set out immediately below make recommittal inappropriate.
Procedural Issues
In her brief employee counsel argues that the failure to hold a “medical hearing” was such a procedural irregularity as to require recommittal to the administrative judge. Employee counsel states that . . . “the practice at the Department of Industrial Accidents has been to take lay testimony and have a later `Medical Hearing’ if the impartial’s report has not been received prior to the originally scheduled Hearing date” (Appellant’s brief p. 14). Counsel for the insurer responds that in fact a “medical hearing” was held on April 5, 1993 and at that time employee counsel elected to depose the § 11A physician (Appellee’s brief p. 7). The transcript of the deposition was filed on May 20, 1993 and the judge’s decision issued six days later. On June 14, 1993 the employee filed a motion to reopen the evidence.[5]
After hearing arguments on July 19, 1993 the judge denied the motion.
We have searched the record of this case as well as c. 152 in a vain attempt to find some reference to the “medical hearing” discussed by the litigants in their briefs. The word “hearing” as used in §§ 11, 11A or 11B is never preceded by the modifier, “medical” so we are at a loss to explain how or why the practice of holding a medical hearing sprang into existence.
The word “hearing” as used in c. 152 is the workers’ compensation equivalent of a jury waived or bench trial in the courts of the Commonwealth. It is the cornerstone of our dispute resolution system. When the legislature established the impartial medical examination (§ 11A) as the primary method for resolving medical issues, it left no doubt where it wanted the examination positioned vis-a-vis the hearing.
The impartial medical examiner, so agreed upon or appointed, shall examine the employee and make a report at least one week prior to the beginning of the hearing, which shall be sent to each party. No hearing shall be commenced sooner than one week after such report has been received by the parties.
(Emphasis ours)
We presume that the legislature hoped and anticipated that by focusing on the medical picture first, many cases would be resolved when they were reached for hearing. Having established the medical exam/hearing sequence it thought best, it is not for the department to reverse the legislative order. Nevertheless, the department did just that when it promulgated the following rule:
[I]n any hearing conducted pursuant to M.G.L.c. 152, § 11
where medical issues will be presented to an impartial physician all medical records will be marked for identification only and forwarded to the impartial physician if a M.G.L.c. 152, § 11A(2) examination has not
been conducted at the time of the M.G.L.c. 152, § 11
hearing.
452 CMR 1.11(1)(d)
G.L.c. 152, § 5 authorizes the commissioner of the department to “promulgate rules and regulations consistent with this chapter for carrying out the functions of the department.” Court review of the validity of an agency regulation is “as deferential as that to a legislative enactment.” Greenleaf Finance Co. v. Small Loans Regulatory Board, 377 Mass. 282, 293 (1979). Courts presume the validity of regulations and will not declare a regulation void unless its provisions cannot by any reasonable construction be interpreted in harmony with the legislative mandate Consolidated Cigar Corp. v. Department of Public Health, 372 Mass. 844, 855 (1977).
In our view 452 CMR 1.11(1)(d) is inconsistent with the clear language of § 11A of the Act because it countenances holding a hearing prior to the medical examination in direct contradiction to the sequence fixed by § 11A. The regulation in question lends support to the chronology followed in the case on appeal before us. We lack the authority to repeal, revoke or otherwise set aside the regulation.[6] However, we will not apply the regulation in this case because it clearly conflicts with § 11A. See footnote 6, supra.
Comporting with 452 CMR 1.11(1)(d), the administrative judge heard the lay testimony before the impartial examination was conducted and the report received and disseminated to the parties. The judge did not have the report before him as he listened to the lay testimony. Indeed, in this case, it was only after he filed his decision and no longer had jurisdiction over the case that he was asked to authorize the submission of additional medical testimony after first making a finding that the medical issues in the case were complex or the report of the impartial medical examiner was inadequate. A disputant seeking to reopen a hearing after the decision has been filed has an uphill struggle given the pressure on department judges to stay abreast of a never ending stream of conferences and hearings. Once his decision was written and filed, it is not surprising that the judge denied the motion.
The process followed in this case turned the legislative sequence on its head. We cannot remedy the error by simply vacating the decision and recommitting to the same judge, with instructions to start the process all over again. We are not willing to speculate that the result would have been the same if the § 11A exam had taken place first. Accordingly, we vacate the hearing judge’s decision and return the file to the senior judge with instructions to order a new § 11A impartial examination and to thereafter assign the case for a § 11 hearing before a different administrative judge.[7] The new hearing shall be commenced no sooner than one week after the § 11A impartial report has been received by the parties.
Before recommitting the case we touch on the third cluster of issues raised by appellant.
Constitutional Issues
Employee in her brief points out that constitutional due process requirements apply to proceedings at the Department of Industrial Accidents. Haley’s Case, 356 Mass. 678, 681-682 (1970). The employee next argues that § 11A of c. 152 is unconstitutional on its face. In support of her position the employee directs us to Meunier’s Case, 319 Mass. 421 (1946). In Meunier the Supreme Judicial Court declared unconstitutional § 9B as it then appeared in G.L.c. 152.[8] Section 9B provided for the appointment of aboard of three impartial physicians to examine an employee, review medical records, and conduct such further investigation as they might consider necessary. Thereafter the medical panel was required to make a report setting out their diagnosis and opinion as to the extent and cause of disability, if any. The Supreme Judicial Court determined that the intent of § 9B was to make the panel report a final and binding determination on these medical questions. The court went on to find that the “binding” effect of the panel report rendered the procedure unconstitutional.
The employee argues persuasively that § 11A is “a remarkably similar device” (Employee brief p. 21) and thus is also unconstitutional on its face. G.L.c. 152, § 11A gives an impartial medical examiner’s report the effect of “prima facie evidence” with regard to the medical issues contained therein, and expressly prohibits the introduction of other medical evidence to rebut the prima facie effect of the impartial medical examiner’s report unless the judge finds that additional medical testimony is required due to the complexity of the medical issue involved or the inadequacy of the report submitted by the impartial medical examiner. If the parties are not permitted to submit other medical testimony then the § 11A report, statutorily considered prima facie evidence and thus rebuttable, actually becomes evidence of a [sic] irrebuttable presumption, similar to the § 9B panel report.[9] Where no further medical evidence was allowed in this case, the § 11A report had such an effect.
The employee here was deprived of an opportunity to address the alleged § 11A report deficiencies at hearing. While she raises the additional due process deprivation that she asserts § 11A engenders, she does not address the threshold question of our authority to pass upon constitutional challenges to c. 152. Although we have the clear obligation to protect the due process rights of parties in litigation at the department, our power to address constitutional issues has never been delineated. The legislature has conferred explicit authority in the reviewing board to reverse the decision of an administrative judge only if it determines that the judge’s decision is beyond the scope of his authority, arbitrary or capricious, or contrary to law. See § 11C. While we are thereby authorized to find that a judge acted contrary to law, we find no authority in § 11C to declare a law “contrary to law.” Moreover, as discussed earlier in this decision, the reviewing board lacks authority to strike a board regulation. See § 5. If we are powerless to strike a regulation which conflicts with the intent and operation of c. 152 we hardly think that the legislative grant of authority to the reviewing board included the power to declare laws unconstitutional.
Although our adjudicatory powers may stop short of striking either regulations or statutory provisions as contrary to the chapter we administer or contrary to the pervasive law of the Constitution, these factors are not dispositive of how we are to fulfill our obligation to protect rights as the administrative agency responsible for interpretation of chapter 152.
We find instruction in Board of Selectmen v. Framingham Civil Service Commission, 366 Mass. 547 (1974), and Samuels Pharmacy, Inc. v. Board of Registration in Pharmacy, 390 Mass. 583 (1983). Each of the latter cases presented constitutional issues arising in the administrative agency context. In Board of Selectmen, the Supreme Judicial Court reversed a superior court ruling that bootstrapped a conclusion to a constitutional issue avoided at the agency level. Id. at 552-553. The court then remanded to the agency with instruction to “take up and consider the factual matters (emphasis added) underlying the issue of the constitutional validity of the regulation since these matters are . . . intrinsic to . . . [the] decision. . . .” Id. at 554. The court did so casting “no doubt on the fundamental rule that the ultimately controlling decision of a constitutional issue is for the courts.” Id.
When a plaintiff employed the Board of Selectmen case i Samuels, supra, to argue the subject agency lacked authority to decide constitutional questions, the Supreme Judicial Court responded the argument was “misplaced.” Samuels, supra at 590. The court explained its holding in Board of Selectmen concluding “[t]he executive branch, as well as the judicial, is charged with upholding the Constitution, and there is no bar to an executive agency undertaking to enforce the Constitution, even if it is the courts that may have the final word.” Id.; and see Note, The Authority of Administrative Agencies to Consider the Constitutionality of Statutes, 90 Harvard L. Rev. 1682 (1977) (for full exposition of concerns and considerations in such agency action).
Certainly parties may and do raise constitutional issues at the department. Drawing direction from the Supreme Judicial Court cases discussed above, the statutory limits set out in G.L. 152, § 5 regarding treatment of legally contrary regulations, and the scope of our review under § 11C, we view our role in addressing properly framed constitutional questions as follows. First, we will take up the issue. Second, we will consider it, which is to say we will analyze it in the context of the case presented. Finally, if we find an unavoidable constitutional question with regard to the validity of a statutory provision, we will so indicate. Thereafter, the order of remand will be stayed for a period to allow for further determination by the courts.
We analyze § 11A in the context of the instant case. Here the judge adopted the § 11A examiner’s opinion as the basis for discontinuing the employee’s benefits. The judge denied the employee’s motion for leave to submit additional medical evidence, making the § 11A medical opinion the exclusive medical evidence considered by the judge.[10]
It is axiomatic that the burden of proving each element of her case remains on the employee. Sponatski’s Case, 220 Mass. 526
(1915). For the employee to meet her burden (and for the insurer to defend against the claim), constitutional due process requires that parties to proceedings before the department are entitled to a hearing at which they have an opportunity to present evidence, to examine their own witnesses and to cross-examine witnesses of other parties, to know what evidence is presented against them and to 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, 681-682 (1970) Harmon v. Harmon’s Paint Wallpaper,
8 Mass. Workers’ Comp. Rep. 432 (1994). Neither the employee nor the insurer was allowed to present evidence of their own medical expert by report or deposition. The only medical report allowed in evidence was the § 11A impartial report.[11] A similar situation occurred i Meunier’s Case, where the court reasoned that:
The party who is adversely affected by the report cannot explain, contradict or refute it. He is thereby denied a fair opportunity of introducing all available material evidence in support of a defense against the claim and to have it considered and weighed by the trier of fact.
Meunier’s Case, 319 Mass. at 427. When the employee attempted to contest the adequacy of the § 11A report in the case at bar, she was instead directed by the judge to take the doctor’s depositional testimony. It has been argued that the statutory right to examine and cross-examine the § 11A doctor by deposition cures any due process problem. Certainly § 11A differs from the former § 9B in this regard. However, cross-examining the § 11A expert does not afford the equally important opportunity to rebut or disprove the examiner’s opinion with the opinion of one’s own expert.[12] Moreover, cross-examination is but one component among those necessary to afford parties procedural due process Haley’s Case, supra at 681-682.
Barring allowance of motions to submit additional medical evidence, the parties are prohibited from meeting their burdens by presenting their medical evidence and examining their own expert medical witnesses. The judge hears but one medical opinion and it is not necessarily the opinion of any party’s expert. Medicine is not an exact science and in many disciplines there are a variety of different but valid schools of thought. Allowing a judge to hear parties’ evidence allows that judge to consider and weigh all relevant medical evidence bearing on the employee’s alleged industrial condition, which is a central contested issue in the cases. Where the § 11A report is the exclusive medical evidence in the case, the judge lacks medical information from which to determine the correctness of the conclusions drawn.[13]
For these reasons, we are concerned that the application of § 11A to the instant case may adversely affect the constitutional rights of the parties in proceedings at the department. We have taken up, considered, and ruled on the validity of 452 CMR 1.11(1)(d), a regulation that clearly conflicts with G.L.c. 152, § 11A. We have also addressed the constitutional impact of § 11A as it affects this case. See Gateley’s Case, 415 Mass. 397, 399 (1993) (statutory interpretation by the agency charged with primary responsibility for its administration is entitled to substantial deference). In order to allow the appellant an opportunity to bring the issue of the constitutional validity of § 11A to the Massachusetts Appeals Court, we stay our order of recommittal for assignment to a new administrative judge for forty-five days. Upon expiration of the stay (including any extension thereof by the Massachusetts Appeals Court) the board file will be returned to the senior judge for assignment for hearing anew.
So ordered.
Judge Wilson concurs.
Neither an administrative judge nor the reviewing board shall have the authority to repeal, revoke, or otherwise set aside a regulation promulgated by the commissioner; provided, however, that if in any proceeding within the division of dispute resolution it is found that the application of any section of this chapter is made impossible by the enforcement of any particular regulation, the administrative judge or reviewing board shall not apply such regulation during such proceeding only. In any case in which a regulation is not applied as here provided, the administrative judge or reviewing board shall, on or before the date of the issuance of the decision, inform the commissioner in writing of the explicit contradiction found between the regulation and this chapter.
A copy of the letter of the reviewing board directed to the commissioner is attached to this decision and marked Appendix A.
In any case where, at the time of filing a claim for compensation, an employee is claiming to be disabled as a result of an injury by industrial disease, or where there is a claim that death resulted from an injury by industrial disease, one or more members of the industrial accident board may appoint three impartial physicians who shall be known as industrial disease referees . . . shall make to the department a complete report, which shall include the results of their study, together with their diagnosis and their opinion as to the extent and cause of disability, if any. A majority vote of the referees shall determine the form and substance of the report, which shall be binding on the parties and be included in the decision of the single member and of the reviewing board; provided, that the single member or the reviewing board may refer the matter back to said referees for further investigation and report. Repealed by St. 1947, c. 286.