Kemal O. Yuksel, Employee v. Davidson Chevrolet, Inc., Employer, Firemen’s Fund, Insurer

BOARD No. 089951-85Commonwealth of Massachusetts Department of Industrial Accidents
Filed: December 19, 1995


(Judges Maze-Rothstein, Kirby and Smith)


Kemal Yuksel, pro se, for the employee

Gerald Butler, Esq., for the insurer


The employee appeals from the administrative judge’s decision denying his claim for G.L.c. 152, § 34A permanent and total incapacity benefits. Among the many issues the now pro se employee raises on appeal, we find one with merit. The employee asserts that the administrative judge erred in excluding evidence regarding the Social Security Administration award of benefits. We agree. We therefore vacate and remand the decision of the administrative judge.

The employee, a 46 year old auto salesman, injured his back on September 25, 1985 while lifting a box. He has been unable to work since the incident. He received benefits under § 34 until they were exhausted. On September 25, 1990 he instituted a claim for § 34A benefits. This claim was denied at a § 11A conference. The employee’s timely appeal was hear de novo on June 3, 1991. Asserting financial constraints, the employee (who was at that time represented by counsel) failed to offer his own medical expert opinions at the hearing. Nor did the employee depose any medical experts after the hearing, an option the judge authorized. However, the employee offered a report of one of the insurer’s medical experts,[1] but he was unable to provide a curriculum vitae. (Tr. 4-7.) It appears the judge did not consider this report as evidence because, although it was noted as an employee exhibit in the decision, the curriculum vitae was not submitted. (Dec. 1, 5; Tr. 7.) The employee’s counsel also attempted several lines of questions regarding the Social Security Administration’s award of disability benefits to the employee. (Tr. 22-23; 45-46.) The judge sustained most of the insurer’s objections on the ground of irrelevance. Id.[2] This was error. On brief, the employee argues that he offered the Social Security report itself. The record is unclear as to this fact.

Social Security awards may serve as evidence, even though findings from those proceedings are based on different standards and criteria and have no binding effect in this forum. The administrative judge may determine what significance, if any, attaches to a Social Security decision. See McCarthy v. Charette Corp., 9 Mass. Workers’ Comp. Rep. ___ (June 2, 1995). If after allowing the inquiry and/or the report generated by the Social Security Administration into evidence the judge decides it is of insignificant weight, she may treat it as such, but at minimum her duty is to weigh the evidence offered. The judge thus erred in excluding what little evidence the employee had. Accordingly, we vacate the decision and remand to the administrative judge to take further evidence and for a decision consistent with this opinion.

The employee has argued other issues which are not part of the record and so may not be considered by us on appeal. G.L.c. 152, § 11C. However, such additional concerns may properly be advanced on remand since the underlying decision, tainted by an error of law, has been vacated. Further, because an insurer is responsible for all sequelae of an industrial injury — be they physical or mental — provided that a chain of causation is shown and remains intact, the judge may also permit the employee to join to the incapacity claim such allegations as we cannot entertain on appeal.[3] See Locke, Workmen’s Compensation §§ 222-225 (1981); see also Gulczynski v. Granada Hosp. Group, 7 Mass. Workers’ Comp. Rep. 151, 153 (1993) and cases cited. Moreover, in light of the passage of time during the pendency of the appeal, if either party alleges a change in medical condition since the date of record closure, and if justice so requires, the judge may take additional evidence prior to the entry of the remand decision.

So ordered.

_________________________ Susan Maze-Rothstein Administrative Law Judge
_________________________ Edward P. Kirby Administrative Law Judge
_________________________ Suzanne E.K. Smith Administrative Law Judge

Filed: December 19, 1995

[1] The insurer objected only on the ground of relevance and wasoverruled (Tr. 5, 8), thus, any objection the insurer had via 452 CodeMass. Regs. 1.11(6), which provides in pertinent part, “. . . a party mayoffer as evidence medical reports prepared by physicians engaged by saidparty . . .,” is deemed waived.
[2] Some questions as framed were properly excluded as requiringhearsay responses. Other questions were permissible but were improperlyexcluded as irrelevant.
[3] We expect in those occasional instances, such as will likely betrue on remand, “. . . where the employee appears pro se , the presiding[a]dministrative [j]udge would take a more active part in surfacing theissues in the interest of fairness and equity.” See Taylor v. BrocktonHospital, 2 Mass. Workers’ Comp. 304, 310 n. 9 (1988).