MAZE-ROTHSTEIN, J.
The insurer appeals a decision that awarded the employee G.L.c. 152, § 34A permanent total incapacity benefits. It contends the judge violated statutory procedure, applied the wrong standard of law, and failed to make adequate findings to support his decision. We agree with the insurer's contentions and therefore recommit for further findings consistent this opinion.
From age seventeen onward, the employee worked as an auto-mechanic specializing in Volkswagens. (Dec. 4.) On March 5, 1987, he injured himself while working in an awkward position that required use of both hands and feet to install a two hundred and twenty-five pound roof rack. (Dec. 4.) The injury caused immediate pain in the employee's back, neck and right hand. (Dec. 5.) After a series of medical examinations and consultations, the employee opted for conservative treatment despite a recommendation for back surgery. (Dec. 5; Insurer's Brief, 4-5.). On June 5, 1990, the employee was involved in a rear-end collision with another vehicle.
The insurer accepted liability for the March 5, 1987 industrial injury and paid to exhaustion G.L.c. 152, § 34 temporary total incapacity benefits from March 6, 1987 to February 27, 1992. (Dec. 2.) The employee's claim for permanent and total incapacity benefits under G.L.c. 152, § 34A was denied after a § 10A conference. Id. He appealed to a hearing de novo seeking § 34A benefits from February 28, 1992 and continuing. (Dec. 2-3.)
A hearing was scheduled for January 27, 1994. Prior to the scheduled date, the insurer moved to continue the hearing until after the receipt of § 11A medical report. (Insurer's Brief, 3; Employee's Brief, 2.) The judge denied the motion and held the hearing as scheduled. Id.
After the hearing, the employee was examined by Doctor Saint-Hilaire pursuant to G.L.c. 152, § 11A on March 2, 1994. (Dec. 7.) The physician opined that the employee's neck and back symptoms were causally related to his March 7, 1987 industrial accident but found that "the numbness in his right hand is caused by a carpal tunnel syndrome which is not related to the [industrial] accident. . . ." (Dr. Saint-Hilaire Rep. 3.) The doctor believed the employee had a light duty physical capacity to work. (Dep. of Dr. Saint-Hilaire, 8-9, 11.)
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.
The judge adopted the § 11A medical diagnosis and causation opinion, but rejected the doctor's assessment of the employee's work capacity, stating: "While the employee may have physical capacity to work part-time, his inability to read adequately and lack of work experience outside of repairing Volkswagens in conjunction with his physical restrictions makes his employability highly suspect." (Dec. 7-8.) Section 34A benefits were awarded as of February 28, 1992. (Dec. 8-9.) The insurer appeals this decision.
On appeal, the insurer contends that the judge erred as a matter of law in denying its motion to continue the hearing until after the § 11A examination. We agree. The legislature has clearly established that "[n]o hearing shall be commenced sooner than one week after [the § 11A] report has been received by 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) (discussing meaning of § 11A(2) in face of 452 Code Mass. Regs. § 1.11(1)(d), cited in Mendez v. The Foxboro Co., 9 Mass. Workers' Comp. Rep. 641 (1995)); O'Brien v. Blue Cross/Blue Shield, 424 Mass. 16 (1996) (decided on other grounds). At the time of the January 27, 1994 hearing, the § 11A examination had not yet taken place. The insurer submits its defense was prejudiced when, after the lay testimony, it learned from the § 11A report that the employee had not revealed that she had been involved in a 1990 motor vehicle accident. (Insurer's Brief 14-15.) Had the statutory sequence been followed, it avers it would have cross examined the employee differently. Id. Under the circumstances of this case, the "O'Brien violation" involving the timing of the hearing and the receipt of the § 11A medical report alone created sufficient potential prejudice to the parties' rights to warrant a recommittal. See Kirohn v. Parker-Danner Co., 10 Mass. Workers' Comp. Rep. ___ (January 31, 1996). On recommittal, the insurer should be allowed to attempt to cure the missed defensive opportunities that resulted from the errant statutory sequence.
The insurer also argues that the judge failed to apply the correct standard of law regarding the burden of going forward and the burden of proof. The insurer had the burden of going forward with the issue of an intervening cause and did so both in cross-examining the employee and while deposing the § 11A physician. The employee had the burden of proving continuing permanent and total incapacity despite the allegation of an intervening cause advanced by the insurer. See Sponatski's Case, 220 Mass. 526 (1915). See also Russell v. Red Star Express Lines, 8 Mass. Workers' Comp. Rep. 404 (1994) (for detailed discussion of the distinction between the employee's burden of proof and the insurer's burden of production).
The judge impermissibly shifted the burden of persuasion by finding, "[t]he resulting symptoms [from the June 5, 1990 automobile accident] were similar to what he had in his industrial injury but the impartial physician could not definitely relate his current symptoms to that auto injury". (Dec. 6.) This was error. While the insurer had the burden to produce some evidence of an intervening cause, it was not the insurer's burden to "definitely relate" the employee's symptoms with the automobile accident. Rather, it was the employee's burden of proof to show that it was the work injury that caused him to be permanently and totally incapacitated. The judge misallocated the burden of proof.
Generally speaking, this would require submission of evidence that will enable the judge to compare the incapacity status before and after the motor vehicle accident. For a supervening incident to foreclose entitlement to benefits, however, the evidence must indicate that the work injury makes no continuing contribution to the post auto accident incapacity. SeeKashian v. Wang Laboratories, 11 Mass. Workers' Comp. Rep. ___ (January 28, 1997) (no basis for continuing benefits when the medical opinion regarding a post work injury auto accident gave no inkling that the compensable injury continued to factor into the disability). Compare Wallace v. Boston Herald Co., 3 Mass. Workers' Comp. Rep. 122, 123 (1989) (work related partial incapacity entitlement continued despite subsequent motorcycle accident, which caused total incapacity).
Furthermore, as the insurer asserts, it is unclear whether the finding of permanent and total incapacity was premised on only the compensable conditions. The employee had three potentially work-related conditions: neck, back and carpal tunnel syndrome. According to the § 11A doctor, whose opinion the judge adopted, the carpal tunnel condition was first documented in 1990, three years after the industrial injury. See (Dec. 5, 8; Dr. Saint-Hilaire DP. 32.) The doctor was firm that the employee's right arm pain and numbness "is caused by a carpal tunnel syndrome which is not related to the [industrial] accident. . . ." (Dr. Saint-Hilaire Rep. 3.)
We have described the type of analysis required in cases involving unrelated conditions that arise after compensable work injuries: ". . . the judge's task is to view the circumstances with something akin to tunnel vision and to narrowly focus on and determine the extent of physical injury or harm to the body that is causally related solely to the work injury." Patient v. Harrington Richardson, 9 Workers' Comp. Rep. 679, 683 (1995) (emphasis added). Determining whether an award of permanent and total benefits was warranted here, required analysis of the employee's incapacity resulting from physical disabilities caused solely by the March 5, 1987 industrial injury. The judge adopted the § 11A opinion but his incapacity determination does not distinguish between, the compensable neck and back conditions and the after occurring noncompensable carpal tunnel condition. See (Dec. 6.) Thus it appears that the judge strayed from the required analysis by including the unrelated symptoms with the employee's industrial injury. Subject to the same analysis is the less clear consequence, if any, of the 1990 motor vehicle accident. See n. 2 supra.
Accordingly, we recommit the case for proper application of the law and for further findings consistent with this opinion. See G.L.c. 152, § 11C. On remand, the judge may take additional evidence as justice requires.
So ordered.
__________________________ Susan Maze-Rothstein Administrative Law Judge
__________________________ William A. McCarthy Administrative Law Judge
__________________________ Suzanne E.K. Smith Administrative Law Judge
Filed: February 4, 1997