No. 00989696 (1999). EMPLOYEE: Laurie Moseley.

• Case Date: October 08, 1999
• Court: Massachusetts

Massachusetts Workers Compensation 1999. No. 00989696 (1999). EMPLOYEE: Laurie Moseley COMMONWEALTH OF MASSACHUSETTS DEPARTMENT OF INDUSTRIAL ACCIDENTS EMPLOYEE: Laurie Moseley EMPLOYER: New England Fellowship for Rehab Alternatives INSURER: Arbella Indemnity Insurance Co.BOARD NO. 00989696REVIEWING BOARD DECISION (Judges Smith, McCarthy and Wilson)APPEARANCES John Moran, Esq., for the employee Robert Doonan, Esq., for the insurer SMITH, J. The employee appeals from a decision that awarded a closed period of further compensation benefits beyond the period voluntarily paid by the insurer. The judge found that the employee had recovered from the effects of her physical injury, and failed to prove that the depression from which she suffered was causally connected to the work injury. The employee argues that the judge applied the wrong legal standard to her mental injury claim, and based his decision on improperly admitted evidence. Because the judge's decision relied upon inadmissible evidence that refuted a central contention of the employee, we recommit the case for limited further proceedings. We review in detail the procedural history of the case, as it illuminates the propriety of a limited recommittal. When the insurer discontinued its voluntary payments without prejudice, Laurie Moseley filed the pending claim for back and knee injuries arising out of and in the course of employment on March 11, 1996. (Employee's claim dated June 3, 1996.) The insurer contested causal relationship and extent of incapacity. The parties designated an orthopedic specialty for the impartial medical examiner. (Conference Memorandum dated September 3, 1996.) After the § 10A conference, a judge ordered ongoing total compensation, and the insurer appealed for a § 11 de novo hearing. On November 14, 1996, pursuant to § 11A(2), Moseley underwent an impartial medical examination by Dr. James S. Broome, an orthopedic surgeon. (Court Ex. 1; Ins. Ex. 6.) The conference judge then recused and the case was reassigned. 1 The case was reached for hearing before the newly assigned judge on July 22, 1997. The new judge planned to retire at the end of October 1997. The judge informed the parties that the record would close on September 5, 1997, forty-five days after the hearing. 2 (Tr. 4.) At hearing, Moseley moved to add a psychiatric injury to her claim, and the judge granted her motion. (Dec. 3.) The insurer agreed that an industrial injury had occurred on March 11, 1996 but continued to contest causation and extent of incapacity. (Dec. 3; Tr. 4-5.) The judge entered into evidence the impartial medical examiner's report. Moseley moved to give the impartial medical examiner's opinion no weight and to authorize the submission of additional medical evidence. As reasons therefore, she argued that Dr. Broome, the impartial physician, had been prejudiced by his review of a conference memorandum containing the report of an insurance adjuster. She also argued that the impartial medical examiner's report was inadequate and that the case was medically complex due to her psychiatric problems. Over the insurer's objection, the judge granted the motion, specifically requesting additional medical evidence on the extent of Moseley's preexisting emotional disability and how it was affected by the accepted work injury. (Dec. 4; Tr. 211-217.) In response to the judge's request for more information on the psychiatric claim, the insurer made an oral motion to compel Moseley to provide a medical authorization so that it could obtain Moseley's psychiatric records, including those from the Thorne Clinic. (Tr. 217- 218.) The judge approved the motion to compel the medical authorization. (Tr. 218.) As the deadline for completion of the evidence was nearing, the insurer informed the judge that it had not received the necessary medical or psychological authorizations from Moseley, and that it was unable to arrange for the deposition of the impartial medical examiner before October 3, 1997. (Letter dated August 22, 1997.) On August 27, 1997, Moseley finally gave the insurer the authorization forms. Despite the written authorization, unbeknownst to her attorney, Moseley verbally instructed the Thorne Clinic to withhold a part of her records. 3 The insurer learned of this conduct on September 16, 1997. At a status conference on October 3, 1997, the judge was informed that the deposition of the impartial physician, Dr. Broome, had not been held because the insurer had not received the requested psychiatric records. In response, the judge extended the deadline for the submission of evidence until October 16, 1997. (Insurer's Brief 3.) When the insurer finally obtained the Thorne Clinic records, it tried to arrange for the impartial medical examiner's deposition. Dr. Broome was then unavailable until October 17, 1997, one day after the deposition deadline. The insurer requested additional time to submit Dr. Broome's deposition: "If additional time cannot be provided, kindly advise, and I will take off the deposition of Dr. Broome, since this matter will have to proceed to another hearing before another Judge." (Letter to Judge from Robert J. Doonan, dated October 7, 1997.) Subsequently, the insurer informed the judge that Dr. Broome's deposition had been cancelled and that its brief and medical records would be submitted by the deadline of October 16, "so that you may prepare a decision prior to your departure from the Department of Industrial Accidents on October 31, 1997." (Letter to Judge from Robert J. Doonan, dated October 14, 1997.) The insurer did not request that the case be reassigned to another judge so that the deposition could occur. On the deadline for submission of evidence, October 16, 1997, the insurer timely submitted its brief together with the records of Falmouth Hospital, Dr. Schillizzi, Beth Israel Hospital, Falmouth Hospital Rehabilitation Department, Dr. Leahy, Dr. Pick, and the Thorne Clinic. Moseley objected to the admission of these records because the insurer failed to provide 10 days written notice of its intent to offer them into evidence, as required by G.L. c. 233, § 79G. The insurer responded that Moseley created the situation that made impossible compliance with the "ten day rule" of c. 233, § 79G. It argued that Moseley should not be allowed to benefit from her obstructive and dilatory tactics. It proposed admission of the records as a cure for Moseley's failure to comply with the judge's production order, and suggested other bases for the admission of the documents. The judge overruled Moseley's objection and admitted the medical records as Exhibits 7-12. (Dec. 2; handwritten ruling on motion dated 10/22/97.) On October 24, 1997, just days before his retirement, the judge filed the decision. He found that Laurie Moseley injured her back in a fall at work on March 11, 1996. (Dec. 5.) The judge adopted the opinions of the impartial medical examiner, Dr. James Broome. At the time of his examination on November...