Board No. 808488-84Commonwealth of Massachusetts Department of Industrial Accidents
Filed: September 5, 1995
REVIEWING BOARD DECISION
(Judges Fischel, Wilson and McCarthy)
Nancy L. Hall, Esq. for the employee.
Mark A. Teehan, Esq. for the self-insurer.
FISCHEL, J.,
The insurer appeals from a hearing decision awarding the employee temporary and total benefits pursuant to § 34 and partial and temporary incapacity benefits pursuant to § 35. The insurer contends, among other things, that the administrative judge erred by adopting a medical report that was not properly admitted into evidence. We find that the administrative judge erroneously adopted a medical record that was not in evidence, and accordingly, we vacate the administrative judge’s decision and return this case for a hearing de novo.
The employee, age sixty-eight at hearing, had worked as a car cleaner for the Massachusetts Bay Transportation Authority for thirty-four years, when, on November 6, 1984, he sustained an injury to his back while moving a shipment of batteries in the course of his employment. (Dec. 2). The employee continued to work through November 27, 1984, when he sought treatment from Dr. John Walsh, who advised him to stop working. (Dec. 2). Dr. Walsh prescribed a course of physical therapy from November 27, 1984 through April 30, 1985. (Dec. 3). Dr. Walsh diagnosed the employee as suffering post traumatic lumbar disc derangement at L5-S1, which was as a direct result of his work related activity of November 6, 1984. He further opined that the employee was “totally and permanently disabled from returning to any type of work or any work which requires that the employee stand, sit and/or bend for prolonged lengths of time.” (Dec. 3-4).
The employee filed a claim for incapacity benefits which was denied by the self-insurer. (Dec. 1). Following conference on January 29, 1991, an order of continuing § 34 incapacity payments was issued, from which the self-insurer appealed. After hearing, the single member filed a decision in which he found that the employee sustained an industrial injury arising out of course of his employment, and awarded a period of total incapacity benefits and continuing partial incapacity benefits thereafter.[1] In support of his findings, the administrative judge adopted the report of Doctors Walsh and Chaglassian. (Dec. 6). Dr. Chaglassian’s report, however, was not in evidence at trial. (Insurer’s Brief p. 6).[2] “A judge may not go outside the record to make findings and draw conclusions based on evidence not properly introduced.” Haley’s Case, 356 Mass. 678, 681-682 (1970). See Matias v. Columbia Electronic Co., 7 Mass. Workers’ Comp. Rep. 246, 247 (1993) (holding that when an administrative judge relied on medical reports not properly admitted in evidence, the reviewing board must recommit the case for further findings). Because the decision is not grounded in the evidence, the decision must be vacated and reassigned for hearing de novo. We reinstate the conference order as of the date of this decision. We note that during the pendency of this appeal the employee’s claim for § 34A benefits was filed. Due to the passage of time, that claim should be joined with the proceedings below.
So ordered.
Judges Wilson and McCarthy concur.
_____________________________ Carolynn N. Fischel Administrative Law Judge
_____________________________ William A. McCarthy Administrative Law Judge
_____________________________ Sara Holmes Wilson Administrative Law Judge
Filed : September 5, 1995