Maze-Rothstein, J.
The insurer appeals a decision that awarded the employee G.L.c. 152, § 34A permanent and total incapacity benefits. It contends the judge violated statutory procedure under G.L.c. 152, § 11A(2) and failed to accord the proper prima facie weight to the impartial medical opinion. We find the case requires reversal and recommittal for the procedural violation which is dispositive of the appeal and so do not reach the latter contention. See G.L.c. 152, § 11C.
The employee, Ronald Mitchell, was forty-six years old at the time of hearing. (Dec. 4.) He left school after the eighth grade but with the reading proficiency of a sixth-grader. Id. He worked in heavy industry, mainly as a machine operator, welder and general laborer. Id. For the employer he assembled industrial machines, a physically demanding job. (Dec. 5.)
On May 23, 1989, the employee squatted to secure a chain around a fifty-gallon drum. In so doing, his right knee popped and swelled. Id. This left him temporarily totally incapacitated and he received § 34 benefits. (Dec. 1-2.) On June 22, 1992, the employee filed a claim for § 30 medical benefits alleging that the May 23, 1989 injury to his right knee ultimately caused a worsening of degenerative problems in his left knee. (Dec. 2.)
By conference order, payment for treatment of the employee's left knee was awarded. Id. Dissatisfied, the insurer appealed the order to a hearing de novo. Pursuant to G.L.c. 152, § 11A an orthopedic doctor examined the employee and diagnosed degenerative arthritis of both knees, status of bilateral hemiarthroplastics and torn medial meniscus on the right knee, status of arthroscopic meniscectomy and anterior cruciate ligament reconstruction. (Dr. Molloy Rep. dated June 29, 1993, 2.) In his opinion, the May 23, 1989 injury significantly aggravated or caused problems in the right knee, and the subsequent excessive strain placed on the left knee aggravated its degenerative status to significant medical disablement. Id. The insurer subsequently withdrew its appeal of the 1992 conference order. (Dec. 2.)
General Laws 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 meet it unless the judge finds the additional medical testimony is required due to the complexity of the medical issues involved or the inadequacy of the report.
On January 28, 1994, the employee filed a claim for § 34A benefits alleging both knees left him permanently and totally incapacitated. (Dec. 3.) Another conference followed granting the § 34A benefits sought. Id. The insurer pursued a second appeal and a hearing de novo was held January 25, 1995.
At hearing, the insurer contested the extent of incapacity, causal relationship, and the necessity of certain medical benefits. (Dec. 3.) The same orthopedic doctor examined the employee again on January 6, 1995 pursuant to § 11A for purposes of this hearing. (Dec. 3-4.) Using the history given in the prior report, the doctor diagnosed continuing "degenerative changes in the lateral sides of both knees and in the joint between the patella and the femur." (Dr. Molloy Rep. dated January 9, 1995, 1-2.) He opined that the employee "remains totally disabled [from his prior] strenuous occupation and, in view of the severity and duration of his symptoms . . . he is totally disabled from any occupation except a sedentary occupation." (Dr. Molloy Rep. dated January 9, 1995, 2.)
Doctor Molloy's report dated June 29, 1993 was admitted into evidence at hearing. See (Dec. 1.)
The judge adopted Dr. Molloy's report on causation and extent of medical disability but rejected his opinion on the employee's capacity to perform sedentary work. Instead, he found total incapacity and awarded § 34A permanent total incapacity benefits commencing on June 4, 1994. (Dec. 9-11.) The insurer appeals this decision.
On appeal, the insurer alleges the judge violated statutory procedure under § 11A(2), which because the error requires reversal, disposes of this appeal. It contends it was error to commence hearing the day after the insurer received the § 11A report. We agree.
The legislature has unequivocally established that "[n]o hearing shall be commenced sooner than one week after [the § 11A] report has been received the parties." G.L.c. 152, § 11A(2) (as amended by St. 1991, c. 398, § 30); see O'Brien v. Blue Cross/Blue Shield, 9 Mass. Workers' Comp. Rep. 16, 20-22 (1995) [finding 452 Code Mass. Regs. § 1.11(1)(d) inconsistent with G.L.c. 152, § 11A(2), cited in Mendez v. The Foxboro Co., 9 Mass. Workers' Comp. Rep. 641 (1995)]; O'Brien's Case, 424 Mass. 16 (1996) (decided on other grounds). The insurer claims, and argued at hearing, that the short period of time between its receipt of the § 11A report and the hearing the next day prejudiced its defense because it could not revise and amend a labor market survey nor could it properly prepare and present testimony from the vocational expert who authored that report. (Insurer's Brief, 10-11; Tr. 6-14.) Under the circumstances of this case, it appears theO'Brien procedural violation potentially prejudiced the insurer's rights under § 11A(2). See Prendergast v. Bay State Volkswagen, 11 Mass. Workers' Comp. Rep. ___ (February 4, 1997).
Accordingly, we reverse the decision and recommit the case to afford the insurer an opportunity to present the defense circumscribed by the telescoped procedure.
So ordered.
_________________________ Susan Maze-Rothstein Administrative Law Judge
_________________________ William A. McCarthy Administrative Law Judge
_________________________ Suzanne E.K. Smith Administrative Law Judge
Filed: May 19, 1997