Graham
NOTICE: Decisions issued by the Appeals Court pursuant to its rule 1:28 are primarily addressed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, rule 1:28 decisions are not circulated to the entire court and, therefore, represent only the views of the panel that decided the case. A summary decision pursuant to rule 1:28, issued after February 25, 2008, may be cited for its persuasive value but, because of the limitations noted above, not as binding precedent.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
The employee, Betty A. Woodsum, appeals from a decision of the reviewing board of the Department of Industrial Accidents summarily affirming the administrative judge's denial of workers' compensation benefits for four work-related injuries. On appeal, the employee argues that the reviewing board erred in its order of recommittal by directing the administrative judge not to admit medical evidence created after the close of evidence at the original hearing on her claims; and that the administrative judge abused his discretion in declining to admit that same evidence. We affirm.
Background. The employee sought workers' compensation benefits pursuant to G. L. c. 152, §§ 13, 30, 34, & 36, for four claimed injuries that she sustained on four separate dates -- January 3, 2001; July 2, 2002; March 1, 2004; and November 11, 2004 -- during the course of her employment with two employers, All Care Resources and Health Management Services. On July 12, 2005, a conference pursuant to G. L. c. 152, § 10A, was conducted concerning the November 11, 2004, injury. The administrative judge denied the employee's claim. The employee appealed, and subsequently filed a motion to join claims relating to all four alleged injuries at the de novo hearing, which was allowed. An impartial medical examiner (IME) was appointed, and he examined the employee.
These employers are insured by A.I.M. Mutual Insurance Company and Liberty Mutual Insurance Company, respectively.
A hearing on the joined claims was held on October 23, 2006. At the hearing, the deposition of the IME was submitted in lieu of hearing testimony, and the employee testified on her own behalf. The administrative judge denied motions by the employee to strike the IME's deposition testimony and to admit additional medical evidence. The evidence closed on December 15, 2006. The administrative judge issued his decision on November 20, 2007, and denied all four of the employee's claims. In his decision, the judge made written findings discrediting the employee's testimony and finding that the employee's disability was not causally related to the injury of November 11, 2004, but made no specific findings concerning the other dates of injury.
The employee appealed to the reviewing board, which ordered that the case be recommitted for further findings concerning the three injuries not addressed in the administrative judge's written decision. The reviewing board further ordered that the employee be allowed to submit additional medical evidence on the three remaining claims. In a footnote, the reviewing board stated, however, that the employee should not be afforded an opportunity to present new medical evidence, and limited the introduction of evidence on recommittal to evidence in existence prior to the close of the evidence at the original hearing (which was on December 15, 2006).
On recommittal, the administrative judge accepted additional medical evidence, but, in accordance with the reviewing board's order, denied the employee's motion seeking to introduce medical evidence not in existence as of December 15, 2006. That evidence consisted of reports from two physicians, including the IME, who had apparently revised his opinion of the employee's condition in light of the administrative judge's decision regarding the November 11, 2004, injury. The administrative judge, in a decision dated April 30, 2010, again denied the employee's four claims. The employee appealed to the reviewing board, which summarily affirmed, and this appeal followed.
Discussion. a. Standard of review. We conduct our review 'in accordance with the standards expressed in G. L. c. 30A, § 14(7)(a)-(d), (f), and (g),' to determine whether the reviewing board erred. Scheffler's Case, 419 Mass. 251, 258 (1994).
b. Error by the reviewing board in limiting admission of additional medical evidence. The employee argues that, although the recommittal order was appropriate, nevertheless the reviewing board erred in directing the administrative judge not to allow the introduction of medical evidence created after the close of the evidence at the original hearing. We disagree.
'Medical testimony is highly desirable in all cases and its absence is a proper ground for concern.' Lorden's Case, 48 Mass. App. Ct. 274, 280 (1999), quoting from Lovely's Case, 336 Mass. 512, 515 (1957). The administrative judge should admit additional medical evidence if 'required due to the complexity of the medical issues involved or the inadequacy of the report submitted by the impartial medical examiner.' O'Brien's Case, 424 Mass. 16, 22 (1996), quoting from G. L. c. 152, § 11A(2). 'Certainly a decision by the administrative judge to foreclose further medical testimony where such testimony is necessary to present fairly the medical issues would represent grounds either for reversal or recommittal.' Id. at 22-23.
Here, the reviewing board properly recommitted the case for additional medical evidence and findings concerning the three injury dates not addressed by the administrative judge. The employee cites to no authority, and we are aware of none, requiring, upon a recommittal decision, the admission of new medical evidence developed after the close of the original hearing. Moreover, we discern no reason to believe that the medical evidence the employee was allowed to introduce was inadequate to permit her fairly to develop the medical issues in this case. See ibid. Contrast Lorden's Case, supra (medical evidence inadequate where administrative judge neither adopted IME's report nor took additional medical evidence).
c. Error by the administrative judge in limiting the admission of additional medical evidence. The employee next argues that the reviewing board erred in summarily affirming the administrative judge's decision following recommittal because the administrative judge erred in declining to admit medical evidence created after the close of the evidence at the original hearing. We disagree.
'[W]here, as here, the reviewing board summarily affirms and adopts without change the findings and decision of an administrative judge, a reviewing court 'must look to that decision to determine whether the action of the board [was] correct." Coggin v. Massachusetts Parole Bd., 42 Mass. App. Ct. 584, 587 (1997), quoting from Nowak's Case, 2 Mass. App. Ct. 498, 499 (1974). Here, the administrative judge admitted and considered additional medical evidence on the employee's three remaining claims. This case was not one where more evidence was 'required due to the complexity of the medical issues involved.' O'Brien's Case, supra at 22. Rather, the administrative judge, in compliance with the reviewing board's order, heard evidence to address fairly the three claims about which he did not make written findings in his initial hearing decision. It would not have been proper for him to provide the employee a second chance at developing the medical record by introducing newly created medical evidence, especially where that evidence disclosed no new information concerning the employee's condition. See Ingalls's Case, 63 Mass. App. Ct. 901, 902 (2005). Nor was he required, in the exercise of his discretion, to hear further evidence where it was not necessary to understand accurately the medical issues presented. See Lorden's Case, supra; Viveiros's Case, 53 Mass. App. Ct. 296, 300 (2001).
Decision of reviewing board affirmed.
By the Court (Graham, Grainger & Hanlon, JJ.),